Byrom: Lack of urgency in regulatory response
The use of AI tools by litigants in the family justice system could undermine attempts by policymakers and professionals “to de-escalate conflict”, a report has warned.
Dr Natalie Byrom, author of the report published by the Nuffield Family Justice Observatory, said generative AI created risks that were “especially serious in the context of family disputes – which are relational and emotionally driven”.
She went on: “GenAI tools are prone to sycophancy, affirming users in their beliefs even where they are incorrect – research demonstrates that using these tools even once can distort social judgment and discourage behavioural repair.
“Accordingly, the use of these tools risks transforming good-faith litigants into intransigent ones, undermining ongoing attempts by policymakers and professionals to de-escalate conflict and divert parties towards conciliation.
“This propensity may also affirm vexatious litigants and domestic abusers, while simultaneously enabling them to produce superficially convincing court documents at scale, weaponising litigation and overwhelming the already overburdened courts.”
Dr Byrom, a former technology adviser to HM Courts and Tribunals (HMCTS), said the government and HMCTS were “increasingly delegating the delivery of digital and AI-mediated justice services to private providers.
“This increasing reliance on technology that is built, owned and managed by the private sector represents a significant departure from previous approaches to digitising the justice system, which championed publicly built, publicly owned technology as an active design choice.”
This shift in approach was “properly understood as one of ‘delegation by default’ rather than design, catalysed by fiscal constraints, the underperformance of the £1bn HMCTS digital court reform programme, and rapid developments in technology, specifically generative AI.
“Regulation and governance have failed to keep pace with this shift in approach, resulting in a patchwork of protections that are wholly inadequate to protect litigants or the justice system.”
Since pre-court provision of AI-assisted information fell outside legal services regulation, litigants using general purpose tools such as ChatGPT were “exposed to risk for which there is currently no redress”.
In the report Delegated by default? Privately owned technology in the family justice system, Dr Byrom said the market had “struggled to deliver sustainable, high-quality pre-court dispute resolution”.
Of the eight companies listed on the LawtechUK tracker as providing family law services, only three “plausibly offer dispute resolution, none is subject to legal services regulation, and one has already prompted a Competition and Markets Authority (CMA) investigation following concerns that it was misleading consumers”.
Where high-quality provision did exist, the growing use of general-purpose AI tools for search “risks displacing it, disrupting decades of investment aimed at improving access to authoritative, accessible online provision.
“In family justice as elsewhere, there is emerging evidence that litigants are turning to these tools directly for advice and document preparation, despite the fact that GenAI tools frequently get the law wrong.”
Meanwhile, family law judges had been using a secure version of Microsoft Copilot, with use cases “emerging piecemeal through guidance, policy documents and judicial speeches rather than through a published process” and despite the fact that Microsoft said Copilot should not be used “in ways that could affect an individual’s legal status or rights”.
Dr Byrom wrote: “No published information shows that judicial Copilot use is being monitored for guidance compliance, there currently is no requirement for judges to disclose its use, the findings of pilots have not been published and promised approaches to support litigants to contest judicial use of AI have not materialised.
“Compared with healthcare and financial services, the regulatory response to these risks lacks urgency.”
Dr Byrom made 26 recommendations grouped under four themes – closing the “regulatory gap”, fixing the “market failure in consumer-facing tools”, building “assurance, evaluation and transparency” and governing AI use in court and protecting users.
The first recommendation was for the Ministry of Justice (MoJ) to work with government departments and regulators responsible for health and financial services to “consult on new approaches to regulating general-purpose AI tools that provide legal, health and financial advice, using the UK’s 2027 G20 presidency as a vehicle to seek international agreement”.
The MoJ should, “as an interim measure and without waiting for the review of the Legal Services Act 2007”, develop a mandatory public register of unauthorised providers of legal services, as recommended by the CMA.
The MoJ should also create and resource a national commission into the regulation of AI in justice, modelled on the national commission for the regulation of AI in health.
On the market for consumer tools, the MoJ should “build or commission trusted, publicly funded advice tools – hosted on or signposted from gov.uk”.
LawtechUK should be required to review the list of companies published on its tracker “and include quality and evidence standards for those that are listed”.
On assurance and transparency, the MoJ, HMCTS and the judiciary should “immediately publish their evidence base for disregarding Microsoft’s own advice against using Copilot where it could affect legal status or rights”.
On AI use in the courts, Dr Byrom said the MoJ, HMCTS and judiciary “should agree an approach to ongoing monitoring of the impact of the use of GenAI tools on court capacity, rates of legal representation, the characteristics of litigants in person, case outcomes, and public trust and confidence in the courts.”
The Lady Chief Justice should issue guidance requiring documentation and disclosure of judicial AI use , drawing on emerging international practice.
“Wherever AI is used to summarise evidence, or draft, edit or anonymise judgments, this should be made explicit in the file.”
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