The Children and Families Act 2014 has been described as the most fundamental reform in family justice since the Children Act 1989.
Last month family justice took a further radical step when Lord Justice Munby, the president of the Family Division, announced his wish for a family drug and alcohol (FDAC) court in all 44 DFJ (designated family judge) areas in England. Family drug and alcohol courts, he said, “must be a vital component in the new Family Court”. Although no specific timescales have been set, judges are to report back at next year’s annual presidential conference on whether an FDAC has been established in their area and, if not, to describe progress towards implementation and the obstacles encountered.
A new model of proceedings
Embedding FDAC into the new Family Court will offer parents and children across the country the opportunity of an entirely different kind of process from ordinary care proceedings, with a profoundly different philosophy and concept of justice. Based on the principles of therapeutic jurisprudence, FDAC are problem-solving courts that treat parents and address their underlying problems as well as adjudicating on the care application.
Parents are offered a time-limited ‘trial for change’ during the proceedings, with the goal of family reunification and, if that is not possible within the child’s timescales, swift alternative permanence with relatives or others. The key features are judicial continuity, an independent multidisciplinary team that provides intensive treatment and support to parents and closely monitors progress, and regular non-lawyer review hearings when parents talk directly to the judge with only the key FDAC worker, social worker and, where possible, the children’s guardian present. The 2014 Act stresses the importance of judicial continuity, and in FDAC this not only promotes more efficient case management but enables the judge to help motivate parents to change – or to remind them of their responsibilities when progress is poor.
An approach that ‘works’
So why has the Munby decided to put his weight behind mainstreaming FDAC? In his view FDAC “works”. The recent results of the five-year evaulation into the original FDAC in London, which is run by Coram and the Tavistock and Portman NHS Foundation Trust, have contributed to this view. The research, funded by the Nuffield Foundation, found that outcomes were better for families receiving FDAC than those going through ordinary care proceedings. A higher proportion of FDAC mothers and fathers stopped misusing drugs and alcohol and, if they did so, were reunited with their children. One year after the end of proceedings, abuse or neglect recurred in proportionately fewer FDAC families.
All these differences were statistically significant. There was also strong support for FDAC and its roll-out amongst parents and professionals. It was seen as transparent and fair, with clear lines of accountability. The research concluded that receipt of FDAC was a key factor in explaining the difference in results between the two samples.
Could similar results be achieved without the court? The research did not explore this, but we know it is not possible to eliminate the need for care proceedings entirely, especially in cases involving parental substance misuse. The relevant question is which type of court is better, and here the evidence is clearly in favour of the FDAC approach. We do not fully understand whether some ingredients are more important than others, but the role of the judge seems critical.
We need to establish whether judicial authority differs from other kinds of authority, such as medical- or social work-based, but both parental perceptions and the literature on therapeutic jurisprudence underline the importance of a problem-solving judge. Because the process is perceived as fair, there is greater engagement, which in turn promotes change or greater acceptance of the outcome of the proceedings. Parents are given a fair chance.
Rollout of FDAC poses substantial challenges, but some may be less problematic than feared when the Act was going through Parliament. FDAC has been identified as one context in which an extension of the 26-week time limit might be ‘necessary’, helping address concerns that the legislation would be incompatible with a treatment model (Re S). Moreover, the PLO holds out opportunities for FDAC to work with families prior to proceedings, to establish capacity and motivation to change. This is likely to be especially beneficial for pregnant mothers whose case cannot come to court until the child is born.
Challenges and solutions
Other challenges will require innovative solutions. An immediate question is: how will the new courts be funded? There is a strong argument that the costs of FDAC should be shared between all beneficiary agencies, rather than borne by local authorities alone. Others who stand to benefit are health services, CAMHS, community safety, probation and adult social care. Moreover, funding needs to include post-court services for reunited families, to minimise risks of relapse and recurrence of neglect and abuse. Joint-agency funding would require mechanisms for bringing stakeholders together.
It will also be important to create the infrastructure needed to develop FDAC nationally. To this end the DfE is funding the Tavistock and Portman NHS Foundation Trust over two years, to develop FDACs in different parts of the country*.
Experience from the two new FDACs – in Gloucester, and Milton Keynes and Buckinghamshire – highlights the value of FDAC champions in the judiciary and children’s services working closely together. A third challenge is finding the balance between local innovation and fidelity to a model that is backed by evidence. Evaluation will be crucial.
FDAC is not a panacea; more family support is required to reduce the need for care proceedings and sustain recovery after they end. But national rollout of FDAC will produce profound change in the ethos and culture of care proceedings, through its more humane and effective approach. Family courts are rarely used to promote change or, through engagement with parents, to intercept the cycles of harm that impact on children, families and wider society. The new national evidence about the high proportion of recurrent care proceedings shows the importance of breaking this cycle and of FDAC’s potential contribution.
*For further information contact Sophie Kershaw at Tavistock and Portman NHS Foundation Trust, tel. 0207 278 5708/07794072742