Vardags Family Law Essay competition 2024/25 | 3rd Place

Can AI Raise a Child? Legal and Ethical Challenges in Digital Co-Parenting

Author: Alexia Jayra D Anand – City, University of London

Introduction

Imagine a world where a robot decides when a parent can see their child—where an algorithm, not a judge, determines whether they are a ‘good’ parent. As emotions often run as high as the stakes in family disputes, introducing artificial intelligence can feel like handing over a family argument to an emotionless referee. While AI excels at analysing data and suggesting solutions, can it truly navigate the complexities of human relationships?

This question becomes especially pertinent in post-divorce parenting, where co-parenting apps like OurFamilyWizard, supporting over 1,000,000 separated parents worldwide, are transforming how families manage custody arrangements.(1) Recognised by courts across England and Wales and frequently recommended by family law practitioners, OurFamilyWizard offers shared calendars, expense logs, uneditable message records, and even AI-powered tools like the “ToneMeter,” which helps identify and neutralise hostile language to improve co-parent communication.(2) With its ability to grant access to lawyers, the app has become a key tool in facilitating effective co-parenting while ensuring an accurate, time-stamped record of all interactions.

Under UK family law, which encourages shared parenting arrangements where practical, these apps could be instrumental in managing parenting time and visitation schedules in line with Section 8 of the Children Act 1989, which governs Child Arrangements Orders.(3) By providing structured digital communication, AI-driven tools help streamline post-divorce parenting.(4) However, their increasing role in family law proceedings raises significant legal questions about whether they are merely assistants—or unfeeling, robotic co-parents encroaching on judicial discretion.

This essay explores the legal impact of AI-driven co-parenting apps in family law, emphasising four key concerns: privacy, accountability, fairness, and the emotional nuance often absent in AI—all fundamental principles in family law. Where the welfare principle and the right to privacy underpin family law decisions in England and Wales, can these tools effectively balance efficiency with justice? This essay explores these key challenges and examines whether AI can be a valuable ally in modern parenting. At the same time, it considers the potential risks of AI compromising the fundamental principles of family law.

Privacy: Protecting Sensitive Family Data

While AI promises efficiency and reduced conflict in post-divorce parenting, its growing role in family law raises pressing concerns—none more urgent than privacy. AI-driven co-parenting apps collect and store vast amounts of personal data, raising legal concerns about privacy protection. As AI becomes more embedded in family law, they also raise critical issues regarding parental confidentiality, child welfare, and the admissibility of AI-generated evidence in court. The legal system must address these concerns without compromising the effectiveness of AI-driven solutions.

Privacy is a cornerstone of family law, particularly in cases involving child arrangements, financial settlements, and domestic abuse protections. Under Article 8 of the European Convention on Human Rights (ECHR), parents and children have a right to privacy in family life.(5) The importance of this right is evident in family court practices, where proceedings are often held in private to protect vulnerable individuals.(6) However, AI-driven apps may undermine this principle by acting as unregulated third parties, retaining sensitive custody schedules, financial records, and private parental communications. Unlike traditional court-monitored documentation, these tools lack direct oversight, making them more vulnerable to misuse or security breaches.

These privacy risks extend beyond hacking threats—they impact family court proceedings, where AI-generated records may be used as evidence. If improperly secured or manipulated, digital records can create misleading narratives about parental behaviour, potentially influencing court decisions that do not reflect reality.(7) The case of Medway Council v A & Others (Learning Disability: Foster Placement) [2015] EWFC B66 underscores the importance of carefully scrutinising digital evidence in family law.(8) In this case, covert recordings of a foster carer making inappropriate comments were crucial in exposing misconduct, demonstrating that electronic evidence—whether covertly recorded or AI-generated—must be appropriately authenticated and considered within its full context before influencing judicial decisions.(9)

However, the risks of AI-generated records extend beyond misinterpretation in court—security vulnerabilities also pose a direct threat to child safety.(10) AI-driven tools that store custody schedules, financial transactions, and private communications could expose a child’s whereabouts if compromised through hacking or misuse.(11) Courts must assess whether recommending such apps in high-conflict cases could inadvertently endanger children by leaking sensitive family information to unauthorised parties.(12)

Given these dual risks—unverified digital evidence and security vulnerabilities—stricter regulatory safeguards are needed to ensure AI co-parenting tools do not compromise privacy or fairness in family law proceedings. While the General Data Protection Regulation (GDPR) sets broad data protection standards, there is no dedicated oversight body ensuring compliance with AI decision-making in family law.(13) The Artificial Intelligence (Regulation) Bill [HL] 2024 proposes the creation of an AI Authority, which would oversee AI regulation in the UK and ensure that existing regulators adequately address AI-related risks.(14) The Bill highlights the importance of a coordinated regulatory approach to AI, reinforcing the argument that AI-driven family law tools should be subject to judicial oversight, transparency requirements, and sector-specific legal standards. Thus, these measures could help ensure fairness and accountability.

Accountability: Who Is Responsible for AI’s Decision?

While AI-driven co-parenting apps promise efficiency and neutrality, they also create significant legal challenges regarding accountability when these systems produce flawed, biased, or harmful decisions in family law cases. Unlike human judges, AI lacks transparency in its decision-making, making identifying errors, biases, or inconsistencies in its recommendations difficult.(15) This lack of transparency results in an accountability gap, raising concerns about algorithmic bias, duty of care, and legal liability in child arrangements and financial support disputes.

One major issue is algorithmic bias—AI tools, trained on historical data, may reflect traditional custody norms that unfairly favour one parent. Under the Children Act 1989, courts must ensure that the child’s welfare is paramount, yet AI may default to outdated assumptions instead of individualised judicial discretion.(16) This raises concerns under the Equality Act 2010, particularly regarding indirect discrimination.(17) If AI custody recommendations systematically favour one parent due to ingrained biases, courts may need to intervene to ensure compliance with anti-discrimination protections in family law.(18)

The growing reliance on AI in family law raises serious accountability concerns, particularly regarding who is liable when AI-generated decisions lead to flawed or unjust outcomes.(19) AI-driven co-parenting apps promise efficiency but lack human reasoning and ethical judgment, making them prone to misrepresenting parental interactions and influencing custody or financial rulings. In Vardags Reputation & Privacy News, Thea Dunne notes in Is it time the legal world embraced AI?, AI excels at processing large datasets but struggles with context, discretion, and legal nuance, which are crucial in family law disputes.(20)

The case of Lloyd v. Google LLC [2021] UKSC 50 highlighted challenges in holding digital platforms liable for data breaches, emphasising the need for clear legal frameworks to address accountability in the digital realm.(21) Similarly, the Information Commissioner’s Office’s (ICO) AI Accountability Framework emphasises the need for transparency, fairness, and human oversight in AI decision-making.(22) However, algorithmic opacity makes it difficult for parents or courts to challenge AI-generated outcomes, creating an accountability gap in family law proceedings.(23) Courts must carefully assess AI-generated evidence to prevent bias, misinterpretation, and unjust parental outcomes, ensuring that AI remains a tool for support rather than a substitute for judicial discretion.

Legal reforms are necessary to address these risks. Courts should enforce transparency laws, compelling developers to disclose how AI algorithms function and justify their recommendations.(24)

Moreover, human oversight must be a legal requirement for AI-generated parenting plans. Courts should ensure that family law professionals review AI-driven recommendations before being relied upon in legal proceedings.(25) Without such safeguards, AI risks replacing legal discretion with unregulated automation, undermining the fundamental principles of fairness and child welfare in family law.

Admissibility: Using AI-Generated Evidence in Family Court

As AI-driven co-parenting apps become more integrated into family law disputes, the admissibility of app-generated data in family courts presents a critical legal issue. These platforms create detailed records of parental communication, financial transactions, and custody schedules, which may be used to support claims of non-compliance, financial irresponsibility, or parental alienation.(26) However, introducing AI-generated records into family proceedings raises concerns about accuracy, manipulation, and judicial discretion, particularly in cases where the child’s best interests must remain the paramount consideration.

Under the Civil Evidence Act 1995, digital records are admissible as documentary evidence if they meet reliability and authenticity standards.(27) However, while platforms like OurFamilyWizard provide uneditable message logs, these records may not capture communications’ full context, intent, or emotional nuance. For instance, if a parent fails to respond to a message due to extenuating circumstances, the log could portray them as uncooperative, potentially influencing custody decisions. Therefore, courts should exercise caution, ensuring that the perceived objectivity of digital records does not overshadow the complex realities of parental relationships.

A relevant UK case that highlights the importance of context and careful consideration in judicial decision-making is Re B (A Child) [2019] EWCA Civ 29. (28) This case involved a challenge to the absence of post-adoption contact between a child and their biological parents. The Court of Appeal affirmed that decisions affecting a child’s future should be guided by a holistic evaluation of the child’s welfare, rather than strict adherence to predetermined rules or assumptions.(29) This principle underscores the need for courts to scrutinise the sources and implications of the evidence they rely on. In applying this logic to AI-generated evidence, it becomes clear that the judiciary must assess whether such evidence accurately reflects the broader context of relationships and interactions, rather than simply accepting algorithmic conclusions at face value.

To address these concerns, family courts should establish clear guidelines for evaluating AI-generated evidence and provide training for judges and legal practitioners on the limitations of digital records.(30) Judicial reliance on AI should complement, not replace, human discretion, ensuring that technology enhances fairness in family law rather than distorting it.

The Role of Emotion in Family Law: What AI Lacks

Family law deals with deeply personal matters such as custody disputes, child welfare, and parental rights, where judicial discretion and emotional intelligence are crucial. The welfare principle under Section 1(3) of the Children Act 1989 mandates that decisions prioritise the child’s best interests.(31) Courts consider factors such as the child’s emotional and psychological well-being alongside their wishes, physical needs, and stability. (32) However, while efficiently handling schedules and finances, AI-driven co-parenting apps cannot interpret human emotions or assess the psychological impact of disputes.(33)

AI operates on logic and data, but family law decisions require understanding, compassion, and discretion. In Re A (Letter to a Young Person) [2017] EWFC 48, a judge wrote a personal letter to a child involved in a custody dispute, explaining the ruling with empathy and reassurance.(34) Such humanised legal communication is impossible for AI, which cannot assess emotional distress, trauma, or the nuances of family relationships.

The inability of AI to interpret context and emotion could lead to misleading conclusions. For example, if a parent disengages from communication due to coercion or domestic abuse, an AI system may wrongly flag them as uncooperative, potentially influencing court decisions.(35) Without human oversight, AI risks reducing complex parental dynamics to data points, disregarding the emotional realities that courts must consider.

A hybrid approach is essential—AI should assist but not replace human judgment.(36) While AI can streamline logistics and documentation, judicial oversight must evaluate emotional factors accordingly.

Final Reflections

AI may be great at organising schedules and keeping financial records in check, but can it truly understand family law’s human complexities? While co-parenting apps like OurFamilyWizard have transformed post-divorce parenting by reducing conflict and providing structured communication, their growing role in legal proceedings raises serious concerns. Privacy risks, algorithmic bias, and the absence of emotional intelligence threaten to undermine family law’s core principles—privacy, accountability, fairness, and emotional nuance. AI can assist in streamlining co-parenting communication and managing legal documentation, but it cannot replace judicial discretion in family law matters. Suppose the family court system is to embrace AI co-parenting systems. In that case, it must do so cautiously, ensuring that technological efficiency does not come at the cost of fairness, judicial oversight, and the child’s best interests.

Footnotes

(1) OurFamilyWizard, ‘About Us’ (OurFamilyWizard, 2025) https://www.ourfamilywizard.com accessed 27 January 2025

(2) OurFamilyWizard, ‘ToneMeter’ (OurFamilyWizard,2025) https://www.ourfamilywizard.com/features/tonemeter accessed 27 January 2025

(3) Children Act 1989, s 8

(4) Ashfords LLP, ’Co-Parenting Apps: A Modern Tool for Family Law’ https://www.ashfords.co.uk/news-and-media/general/co-parenting-apps-a-modern-tool-for-family-law accessed 27 January 2025

(5) European Convention on Human Rights (ECHR), Article 8

(6) Ibid

(7) House of Lords, In re S (FC) (a child) (Appellant) (2004)

(8) Medway Council v A & Ors (Learning Disability; Foster Placement) [2015] EWFC B66

(9) Ibid

(10) Frank Pasquale, ’Affective Computing at Work: Rationales for Regulating Emotion Attribution and Manipulation in the Workplace’ (2023) 10(2) European Labour Law Journal 234

(11) Ibid

(12) Ibid

(13) General Data Protection Regulation (GDPR), Regulation (EU) 2016/679

(14) James Tobin, Artificial Intelligence (Regulation) Bill [HL]: Library Briefing (House of Lords Library, 18 March 2024)

(15) Information Commissioner’s Office, ’Guidance on AI and Data Protection’ (2021)

(16) Children Act 1989

(17) Equality Act 2010, s 19

(18) Ibid

(19) Thea Dunne, ’Is it time the legal world embraced AI?’ (Vardags)

(20) Ibid

(21) Lloyd v Google LLC [2021] UKSC 50

(22) Information Commissioner’s Office, ’Guidance on AI and Data Protection’ (2021)

(23) Reuben Binns and Reuben Kirkham, ’How Could Equality and Data Protection Law Shape AI Fairness for People with Disabilities?’ (2021)

(24) Ibid

(25) General Data Protection Regulation (GDPR), Regulation (EU) 2016/679

(26) House of Lords, ’In re S (FC) (a child) (Appellant)’ (2004)

(27) Civil Evidence Act 1995

(28) Re B (A Child) (Post-Adoption Contact) [2019] EWCA Civ 29

(29) Ibid

(30) Ibid

(31) Children Act 1989, s 1(3)

(32) Ibid

(33) Andreas Hauselmann et al., ’EU Law and Emotion Data’ (2023) arXiv:2309.10776 [cs.CY]

(34) Re A (Letter to a Young Person) [2017] EWFC 48

(35) Reuben Binns et al., ’Bias and Discrimination in Opaque Automated Individual Risk Assessments’ (2018) University of Oxford

(36) Brandon M Booth et al., ’Integrating Psychometrics and Computing Perspectives on Bias and Fairness in Affective Computing: A Case Study of Automated Video Interviews’ (2023)

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Bibliography

Cases:

• Lloyd v Google LLC [2021] UKSC 50
• Medway Council v A & Ors (Learning Disability; Foster Placement) [2015] EWFC B66
• Re A (Letter to a Young Person) [2017] EWFC 48
• Re B (A Child) (Post-Adoption Contact) [2019] EWCA Civ 29

Legislation:

• Children Act 1989
• Civil Evidence Act 1995
• Equality Act 2010, s 19
• European Convention on Human Rights (ECHR), Article 8
• General Data Protection Regulation (GDPR), Regulation (EU) 2016/679

Reports:

• House of Lords, ’In re S (FC) (a child) (Appellant)’ (2004) https://publications.parliament.uk/pa/ld200405/ldjudgmt/jd041028/child-1.htm accessed 27 January 2025
• Information Commissioner’s Office, ’Guidance on AI and Data Protection’ (2021) https://ico.org.uk/for-organisations/guide-to-data-protection/key-data-protection-th emes/guidance-on-ai-and-data-protection/ accessed 27 January 2025
• James Tobin, Artificial Intelligence (Regulation) Bill [HL]: Library Briefing (House of Lords Library, 18 March 2024)

Books:

• Reuben Binns and Reuben Kirkham, ’How Could Equality and Data Protection Law Shape AI Fairness for People with Disabilities?’ (2021) arXiv:2107.05704

Journal Articles:

• Andreas Hauselmann et al., ’EU Law and Emotion Data’ (2023) arXiv:2309.10776 [cs.CY]
• Brandon M Booth et al., ’Integrating Psychometrics and Computing Perspectives on Bias and Fairness in Affective Computing: A Case Study of Automated Video Interviews’ (2023) arXiv:2305.02629 [cs.HC]
• Frank Pasquale, ’Affective Computing at Work: Rationales for Regulating Emotion Attribution and Manipulation in the Workplace’ (2023) 10(2) European Labour Law Journal 234
• Reuben Binns et al., ’Bias and Discrimination in Opaque Automated Individual Risk Assessments’ (2018) University of Oxford

Websites:

• Ashfords LLP, ’Co-Parenting Apps: A Modern Tool for Family Law’ https://www.ashfords.co.uk/news-and-media/general/co-parenting-apps-a-moder n-tool-for-family-law accessed 27 January 2025
• OurFamilyWizard https://www.ourfamilywizard.com/ accessed 27 January 2025
• Thea Dunne, ’Is it time the legal world embraced AI?’ (Vardags) https://vardags.com/family-law/is-it-time-the-legal-world-embraced-ai accessed 27 January 2025