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03 MAY 2017
Non-lawyer review hearings – at the heart of a successful FDAC
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.
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Reflections from current practice
Patrick Peruško and Carole Burgher were the two District Judges who set up the Milton Keynes and Bucks FDAC in June 2014. Those were two of the 10 courts involved in the 2016 study. After a successful pilot, this FDAC now has permanent local authority funding. Approximately 65 cases have been completed, only six of which ended with a contested final hearing. Below, the judges reflect on their work.NLRs are at the very heart of a successful FDAC. On day one parents are told very clearly that they have a 4-5 month period (we call it a trial for change) in which to evidence change. We explain that abstinence and honesty are non-negotiable and, importantly, we support them in an encouraging/motivational way. The parents build up rapport with the judge very quickly. They want to show you the progress they have made in the 2 weeks since you saw them last. They carry and complete, sometimes for the very first time, a diary with appointments and a folder of the work they are undertaking. If, as often happens, there have been difficulties (a negative test, a missed contact) there is open discussion about where the parent is in the cycle of change. The growing relationship between judge and parents fosters serious and honest reflection: it is not uncommon for a parent in a NLR to say that they have come to the conclusion that they cannot care for their child.
One of the reasons why we find FDAC so rewarding as judges is that the NLR process provides a humane way of both encouraging and challenging parents who are struggling to deal with their addiction and to meet their child’s needs. Parents feel empowered to have a real and loud voice in the process. Even in lawyer hearings the parents want to speak, and we encourage them to do so. No longer is the judge somebody that only lawyers can speak to.
It is vital for social workers and guardians to be present, and the review works best if we have the same professionals each time. The regular contribution from the social worker enables parents to see how the worker is trying to help them and their child, and the guardian’s presence throughout means that parents have time to understand and absorb the thinking behind their decisions. Along the way, they can help resolve often small but important issues, such as contact and housing. We can lend a hand, like writing to housing officers in support of a housing application where a parent is engaging well in FDAC but we cannot pursue a rehabilitation plan unless accommodation is offered. Sometimes the attendance of other professionals can help, such as a worker from the local substance abuse service joining us to ensure there is a coordinated approach to a treatment package or intervention plan. In these ways problems can be averted or become solvable, often very quickly.
It helps, too, that we can be flexible in how we organise the NLR. For example, when parents have occasionally found it impossible to travel to court or get time off work we have arranged for them to join the review by telephone. Where domestic abuse features, it is sometimes helpful to hold a separate review with each parent. We always welcome the involvement of supportive family members, and the excellent work that the FDAC team does to engage children’s fathers means that we are fortunate in having them at most NLRs.
FDAC, and in particular NLRs, require a very different judicial approach because the judge is one part of the team working together to motivate parents to sustain change as well as to watch for and solve problems as they arise. It does take a while to adapt to this way of working because it is contrary to the adversarial approach of non-FDAC care proceedings. What makes it so rewarding is the humanity it injects into the process. More often than not parents come away from proceedings feeling that they have been listened to and given a fair chance to parent. As we said to the researchers:
'We have all been part of the normal care process for years. In many cases the outcome is predictable and the process perceived to be unfair. Parents are assessed, including their prospects for change, but without adequate support very little does change. That is why FDAC works: it gives parents the support they need. Importantly, it is humane, and the outcome for children is better as a consequence. Even parents who do not succeed acknowledge that they have had a proper chance. FDAC is fair. That is why so few cases end in a contested final hearing.'
The work of the National Unit and news from the FDAC sites is available at www.fdac.org.
You can follow the FDAC National Unit on Twitter @FDAC_NU
For practical guidance on the FDAC see the Lexis®PSL Family Practice Note: The Family Drug and Alcohol Court (FDAC) (subscription required), produced in partnership with the FDAC National Unit, which includes details of the main features and procedure for cases being heard in the FDAC. It also provides information about the FDAC National Unit, the expansion of the FDAC to new sites, research that has been conducted into the FDAC and the challenges that the FDAC approach faces in light of the Public Law Outline 2014 and the changes introduced in the Children and Families Act 2014 – the 26-week time limit, and the emphasis on pre-proceedings work and assessment.
Leading practical guidance service, Lexis®PSL Family provides procedural and substantive guidance with suites of Practice Notes, Forms and Precedents covering all aspects of family law. Click here to request a free 1-week trial.
1 Wexler D and Winick B (eds) (1996) Law in a Therapeutic Key: Developments in Therapeutic Jurisprudence. Carolina Academic Press.
