His Honour Judge Patrick Peruško, Luton and Bedfordshire Family and County Court
District Judge Carole Burgher, Milton Keynes and Buckinghamshire Family and County Court
Jo Tunnard, FDAC National Unit, and Independent Consultant, RyanTunnardBrown
This fifth blog from the Family Drug and Alcohol Court National Unit is about the non-lawyer review hearings that are a distinctive feature of the FDAC problem-solving approach to care proceedings. We explain their role, summarise the growing evidence about their value, and offer reflections about practice from two well-established FDAC courts.
The purpose and provenance of NLRs
Non-lawyer reviews (NLRs) in FDAC are held fortnightly, in addition to the usual hearings in non-FDAC care proceedings. Typically, an FDAC case includes at least 10 NLRs as well as the three hearings that are attended by lawyers for all the parties. No lawyers are present at NLRs because they are intended to provide an informal opportunity for parents to speak openly with the judge about how their case is going. Parents speak for themselves, rather than having their views presented by their lawyer. The NLR lasts 20–30 minutes.
The parents’ key worker from the FDAC specialist team, the local authority social worker and the child’s guardian all attend the NLR. Their role is to support the judge in reviewing progress with parents and setting goals for the next 2 weeks. The NLR is also a forum where practical issues are discussed and solutions found. The judge leads the hearing, maintaining the authority of the court, but doing so in a less imposing atmosphere than when all the lawyers are present. Some judges hold NLRs in chambers rather than the courtroom. There is an expectation that all those present – parents and professionals – have a responsibility to problem solve.
Problem-solving approaches in court draw on therapeutic jurisprudence.1
This is the study of how the law and those who enact it can help or harm people’s well-being and mental health, and about alternative models, including specialist courts for particular problems. Therapeutic jurisprudence sees the judge as having an active role in resolving the problems that bring people before the court, with the judge using motivational approaches to promote adherence to treatment and address related needs. The benefits of the approach are considered to derive from a combination of style and technique. The style needs to be warm and empathetic. The technique includes reflective listening, encouraging parents to believe that change is possible, exploring their ambivalence about the action needed, and using negotiation rather than conflict to promote change. In FDAC, it mirrors the inclusive, trauma-informed approach that underpins the specialist multi-disciplinary team working alongside the judge.
The common components of problem-solving courts have been used by the FDAC NU to develop a set of 10 service standards
(and accompanying practice indicators) that summarise expectations about the provision and ethos of an FDAC service that has fidelity to the FDAC model. These are now being used as the basis for regular audits of service development in local FDAC sites. Standard 8 stipulates that the procedure in court 'acknowledges the role of the judge as a catalyst for change, nurturing a relationship with parents and giving families a voice in the proceedings'. There are two practice indicators for this Standard. One is that the judge engages parents in discussion with the professionals. The other is that parents and professionals are clear about what is expected of them during the hearing.
Evidence about the value of NLRs
Two research reports provide insights into the role and practice of NLRs. One, in 2014
, explored whether the elements of a problem-solving court approach were present in the original FDAC pilot service. It concluded that they were. Some lawyers had initial reservations about hearings without lawyers present but these reduced over time, helped by the circulation to all parties of a review report from the FDAC team ahead of the NLR and a minute of the hearing afterwards. The message was strong and positive: 'This is the way care proceedings should be run.'
The other study, in 2016
, observed court practice in 10 FDACs in England. The style of the judges was tested against the practice and principles underpinning a problem-solving approach: building strong rapport with parents, praising them for staying on track with treatment plans, being clear about aims and consequences, and encouraging parents to take responsibility for their actions. The study confirmed that the FDAC approach was being followed by judges in all the sites visited and that the judges were unanimous in their enthusiasm for the model. They valued the frequency of NLRs and the fact that something had always been done in between hearings, unlike in ordinary proceedings where time was described as 'drifting for weeks on end'.
The judges also welcomed the advantages of judicial continuity, echoing the views of parents and others in the earlier study. Seeing the same judge provided an incentive to parents to demonstrate what they could achieve and to do this with an authority figure who knew where they had started and how much they had struggled along the way. It also enabled judges to challenge parents from this same starting point. The knowledge that had accumulated over weeks and months provided a solid bank of information to draw and build on during each hearing.