The practice of family law during the Covid-19 pandemic: Digital justice and gender inequalities

This project aims at investigating the practices and challenges associated with the shift to digital justice during the COVID-19 pandemic in family proceedings in Switzerland with a special focus on separations and divorces. The impact of the pandemic has been especially drastic in family law with countless individuals caught up in the middle of a critical family crisis. In particular separating and divorcing individuals with minor children who were already in a situation of instability experienced increased vulnerability both materially and emotionally with detrimental yet differentiated consequences for mothers, fathers and children. Two legal issues were especially at risk of leading to exacerbated gendered inequalities and conflicts due to a reinforcement of traditional gender roles: child visitation and physical custody arrangements, and maintenance payments.To avoid delays and to deal with emergency cases, the Swiss Federal Council opened up the use of remote hearings in civil proceedings (COVID-19 justice and procedural law ordinance, RS 272.81) as other countries did. While digital justice holds several advantages (e.g. speed, cost reduction), it also raises a number of practical and ethical concerns (e.g. technology, confidentiality). Given the federal organisation of the Swiss justice system, recourse to remote hearings and associated social distancing measures were uneven across the different cantonal civil courts. As proximity to the persons concerned has been considered as a key advantage in family law, these changes presented a critical challenge. In this context, judges and lawyers were positioned at the frontline and had to quickly adapt their practices to prevent family circumstances of their litigants/clients to worsen and to find solutions acceptable for all parties.Thus, our overarching research question is the following: Under what conditions can digital proceedings ensure access to justice for separating and divorcing couples with minor children during a major social crisis such as the COVID-19 pandemic and mitigate the increased risk of gender and social inequalities? This main question is divided into three dimensions. The first dimension tackles the gender and social inequalities related to access to justice. The second dimension tackles gender and social inequalities related to visitation and physical custody arrangements. Finally, the third dimension tackles gender and social inequalities related to maintenance payments to children and ex-spouses. We hypothesize that there is a learning process both at the institutional and individual levels. At the institutional level, civil courts practicing family law had to change their protocols to implement the ordinance. At the individual level, judges and lawyers had to develop strategies to deal with separating and divorcing couples with minor children. This project has an interdisciplinary sequential mixed-method design that has already been successfully applied in a SNF research project conducted by the three main applicants (n° 100011_182364 / 1). It consists in a legal text study of the implementation of the ordinance RS 272.81 in Switzerland with an international comparison (work package 1) coupled with a qualitative study with a case study of court practices (work package 2) and a quantitative study using a questionnaire addressed to family judges and lawyers (work package 3).This interdisciplinary project linking law and sociology will simultaneously investigate legal and family consequences. The ultimate goal is to identify good practice examples to draw up recommendations useful for law makers and practitioners dealing with separation and divorce, and for the development of digital justice in Switzerland including amendments to the Swiss civil procedure code. In parallel, an offer of continuing training will be developed for practicing judges and lawyers, as well as for law students and other practitioners dealing with separation and divorce. This project will be critical to deal with the aftermath of this pandemic and to draw lessons for other types of crises and in time of stability.