“Either board the AI train now, or alight and be left behind” – The Kingsley Napley Family Junior Debate 2023

When ChatGPT is asked “Does the future of a fair financial remedies system lie in AI?”, the response is: “the future of a fair financial remedies system may involve the integration of AI technologies, but it's important to recognise both the potential benefits and challenges associated with this approach.” A strikingly typical lawyer’s answer, for a machine. Will AI revolutionise and provide certainty and cost-efficiency for the family legal system, or is it a treacherous commodity here to replace jobs and create unfairness?
 

Our annual debate took place on 5 October 2023, and the Family Associates and Senior Associates were pleased to welcome friends and contacts from across the family law world to debate the motion: “Rise of the Machines? This House believes that the future of a fair financial remedies system lies in AI.” The evening was chaired by Millie Benson of 1 King’s Bench Walk and the junior barristers joining us on the panel were:

• Julia Townend of 4 Paper Buildings
• Ed Benson of 1 Hare Court
• Emily Page of 29 Bedford Row
• Thomas Haggie of Queen Elizabeth Buildings

Each speaker was asked to debate either for or against the motion so their comments did not necessarily reflect their personal views.

The genie is out of the bottle

Kicking things off in favour of the motion, our first speaker argued that AI was here to stay, and that it had in fact been on the horizon for quite some time already. The American science fiction film, A.I. Artificial Intelligence was released in 2001; the first iPhone was unveiled in 2007 with “Siri” arriving not much later; and now in 2023 all manner of apps are available, including Runpee (ensuring you know the best time to run to the toilet during a film so you don't miss the best scenes) and Baldify (giving you a realistic, hairless avatar version of yourself). How did we possibly live without them?

In the family law world, practitioners and our clients already benefit from programs such as Capitalise (a cloud-based software which provides bespoke Duxbury calculations); we now have vastly more intuitive legal research tools at our finger tips, including Lexis+ and Practical Law; and of course not forgetting the recent introduction of the HMCTS portal. It is clear that technology is and will be up front and centre in our lives, and AI is just the next step in this. Our first speaker concluded that we either need to board the AI train, or alight and be left behind.

While those against the motion agreed that AI is here to stay, one of our speakers questioned whether a financial remedies system will be needed at all in the future. Met with laughs from our audience, the speaker envisaged a world in which AI does everything for us, liberating everyone from their working lives and allowing us to spend much more time with our partners and children, possibly reducing the likelihood of relationship breakdown in the first place. While we may be some way off removing divorce entirely from the lexicon, it is interesting to imagine a world with AI which operates entirely differently to what we currently know.

Man and machine, not man versus machine

In support of the motion, it was also suggested that the family justice system would be far more efficient if AI was embraced to its fullest extent. In a court system plagued by underfunding, high staff turnover and a lack of judicial availability and continuity, it could be far better managed with AI-led systems and algorithms to predict where bottlenecks or crisis points may occur.  Occurrences which would normally render a hearing ineffective, such as the illness of a judge or the absence of key valuations, tax calculations or pension sharing information, could all be rectified at the click of a button, rather than adjourning to find a new listing in 6, 12, or 18 months’ time.

Our “for” speakers advocated for a version of family law in which we work alongside AI; a symbiotic relationship as envisaged by the former CEO of IBM, Ginni Rometty. AI has the potential to remove many of the purely administrative aspects which family practitioners are bogged down with every day, such as creating bundles, writing attendance notes and trawling through bank statements. With much more time, lawyers could instead focus on providing nuanced and bespoke advice to clients (the role we were actually trained for). AI does not need to be feared for its potential to replace certain jobs, as new jobs will be formed in its wake, and the world will simply pivot and adapt to changing circumstances, as it always has. Our speaker concluded that as family lawyers, we will learn to use the new tools available to best assist our clients and their needs.

The big question: costs

Litigation is by its nature expensive and the significant costs incurred by clients has been a focal point in a number of recent cases. Where parties are grappling with complex legal points and detailed fact patterns, costs can skyrocket dramatically. However, with the ability of AI to provide better indications of the value of property, businesses, and investments almost at the outset, and to remove the heavy administrative burden, it would be much easier to knock a case into shape early, facilitating negotiations and settlements more quickly, and therefore vastly reducing the potential costs involved. 

To counter this, a member of our audience raised the important point of what would happen if the AI used contained a substantive error which resulted in a less favourable outcome for a client. With AI taking a significant role, there may be uncertainty around who the client could seek redress against by way of a complaint or claim. One of our speakers suggested that it will still remain the lawyer’s role to properly test and apply the AI, and others proposed that this may require adjustments to professional indemnity insurance.

Those in favour of the motion also spoke about the principle of equality of arms in court proceedings, and how accessible AI could allow all parties to have the same starting point. The current financial remedies system is not fair because it is rigged in favour of those fortunate enough to have money to spend on proper representation. This luxury is unfortunately excluded for much of the population, and, while this gap continues to widen, the ability of the court to fairly decide cases becomes more and more difficult. Our “against” panellists did however argue that AI may not be a cheap offering, at least not for some years to come, until it becomes more commonplace. They explained that it is clear even now that some lawyers and firms have significant resources and some do not, and this will continue to be the case with AI. It may therefore not create the idealised level playing field which is being proposed.

An end to “woolly discretion”

In the words of The Hon. Mr Justice Mostyn, in interviews before his retirement this year, the current “woolly discretion” in financial cases makes it impossible to predict outcomes because it can be dependent on the subjectivity and biases of the individual judge. AI in the judiciary therefore has the potential to remove these risks and offer much greater certainty for families (and those advising them). If decisions can be made more quickly with the use of AI, the removal of some of the delays in the current system (an issue which continues to have hugely negative ramifications for families) could have immeasurable benefits.

Those against the motion argued that family law is and never will be a one size fits all. No two families are the same and the facts of every case are different; with different nuances, different complexities. While we as family practitioners may think we want consistency, in order to be able to tell our clients at the outset what the judge’s decision will be, in fact to have a system which is quick and formulaic, you compromise the very point of the system - fairness. While the current discretionary approach is not perfect, it allows the needle to shift when taking into account the potential nuances which govern what a fair outcome would be. Our “against” panellists argued that the future of a fair financial remedies system in fact lies in a diverse judiciary and enough time for a judge to properly consider and decide a case.

Dangers of datasets

It is important to remember the kind of AI with which we are concerned – essentially, large language models with deep learning algorithms that can recognise, summarise, translate, predict, and generate content using large datasets. One of our panellists spoke of the danger of relying on datasets because they may still contain inaccuracies, inequalities and biases, which could feed into providing a “wrong” or “unfair” decision. Changes in the law are reflective of the customs and attitudes at that time, and it is not always possible to predict these - White v White could not have been anticipated from reading Dart v Dart and the line of case law which came just before it.

Going further, those against the motion argued that society changes and we change with it, so in whatever role AI has to play, we simply cannot hand this responsibility over completely. What we deem as “fair” in 2023 may not be what we think at all in 2050, and the purpose of our case law is to track these developments over time and ensure our system and thinking keep pace. Without human input, our common law system essentially disappears. Concluding the debate, our “against” speakers agreed that AI may be a part of the financial remedies system for the future, but it shouldn’t be the system.

We are incredibly grateful to our chairperson and speakers for such a lively and entertaining debate. The evening has left us all to ponder how AI will become a central force in our futures as family practitioners. Thank you to everyone who was able to attend our debate this year.

further information

If you have any questions regarding this blog, please contact Liam Hurren in our Family team. 

about the author

Liam is an associate in the Family and Divorce team, having completed his training contract at Kingsley Napley in September 2022. Liam advises on all aspects of family law and relationship breakdown including divorce, financial settlements, arrangements for children, and cohabitation issues.