Problem-solving family courts prove their worth in the UK: New findings

Supporters of Family Drug and Alcohol Courts (FDACs) have long championed them as a better way of dealing with complex care proceedings. Now new research from the Centre for Justice Innovation demonstrates that not only do they offer better outcomes for children and families, they also make good economic sense, providing £2.30 of real savings to the taxpayer for every £1 spent. It’s time to look at what makes FDAC so effective and what it tells us about our family court system.

FDACs specialise in hearing cases where local authorities are applying to remove children from their families due to substance misuse. Although they are run wholly within the same public law outline as standard care proceedings they have three key differences:

  • Problem-solving court processes: The FDAC court process is designed to motivate and support families to engage with their intervention plan. In addition to the standard hearings set out in the PLO, FDAC cases are managed via fortnightly Non-Lawyer Review Hearings (NLRHs) which are attended by the parties but not their legal representatives. Members of the FDAC team also attend and report back on progress against the intervention plan and the results of drug tests. NLRHs broadly fulfil the role of interim hearings, but also offer an opportunity for parties to discuss their perspective on progress and for the judge to offer advice, encouragement, and guidance
  • Dedicated FDAC judges: The same judge will usually preside over all hearings in a given case. At NLRHs Judges engage directly with parties rather than through legal representatives. FDAC judges have specialist training on how to engage with and motivate families.
  • Specialist support team: FDAC families are supported by a multi-disciplinary specialist support team which designs and co-ordinates a multi-agency intervention plan as well as offering direct support. The FDAC team monitors the progress of the plan and reports back to the judge. It also fulfils the role of expert witness in contested cases.

FDACs are rooted in the idea of problem-solving justice, in which courts use their authority to address the complex social issues that bring people before them. Problem solving courts originated in the US in the 1980s where judges, frustrated with their inability to deal with the crack epidemic, started to establish new courts which could sentence criminals to compulsory drug treatment rather than prison. These “drug courts” provided a template for our own Drug Treatment and Testing Orders, which evolved into the Drug Rehabilitation Requirement which is still in use in as part of community orders and suspended sentence orders. Other forms of problem solving criminal courts followed, ones which specialised in domestic abuse, in human trafficking, in defendants with mental health needs and many more. In the family arena, Family Treatment Courts attempt to provide drug treatment and other support to families at risk of having their children removed by the state, in order to help them become able to provide safe and secure homes for their children.

The UK’s first FDAC opened in London in 2008, inspired by American Family Treatment Courts. Based at the Inner London Family Proceedings Court, and overseen by Judges Nicholas Crichton (a long-time champion of the idea) and Kenneth Grant, it initially saw families from three London Boroughs. Support for families was provided by a partnership between the Tavistock and Portman NHS trust and children’s charity Coram.

The court was inspired by a recognition that standard care proceedings were not getting to the root of the issues facing families. As Judge Crichton puts it: “When I was a solicitor, I sat in a court corridor with a woman who was having her seventh and eighth babies (twins) taken away. Her first child was in borstal – five times the cost of Eton; her second in a detention centre – four times Eton; her third and fourth were being adopted and her fifth and sixth in care – with all the attendant costs,” he recalls. “Then there were the NHS costs of her poor health due to addiction, police costs for constantly attending domestic violence incidents, social services, court time, legal aid and local authority legal bills (and an awful lot of human misery). We worked out she alone was costing the taxpayer half a million quid – and that was 30 years ago!”

FDAC is driven by a desire to offer families a “trial for change” – the opportunity for parents to use the duration of care proceedings, and the accompanying offer of help, to turn their lives around and prove that they are the right people to care for their children. And the evidence suggests that it works. A report by Brunel University has suggested that compared to standard proceedings, parents going through FDAC are more likely to stop misusing alcohol and are less likely to have their children removed. The evidence also shows that even though FDAC returns more children to their parents, long term outcomes for those children returned are actually better, with fewer parental relapses and less recurrence of neglect and abuse.

Research recently published by the Centre for Justice Innovation, has built on this evidence to estimate the financial impact of the FDAC model. The research suggests that although FDAC requires an upfront investment in extra support for families it is a net money saver for the taxpayer. On average, each case going through FDAC rather than standard proceedings requires £15,000 worth of support. However, an average of £17,000 per case is saved by reducing the number of children taken permanently in to care and an average of £5,000 is saved by reducing the number of families returning to court with future problems. In addition, the less adversarial style and the reduced use of expert witnesses saves an average of £6,000 per case. Taken together with some smaller impacts each FDAC case produces a net savings of over £15,000.

This evidence demonstrates that problem-solving courts like FDAC make sense in England and Wales. Already we are seeing the expansion of FDAC, with 19 courts now in operation, and several more due to open over the coming year. However, each of these sites sees on average only 20-30 cases and so problem-solving represents only a small fraction of the 11,000 care proceedings cases begun each year.

The time now seems ripe for a wider expansion of family problem-solving in England and Wales. Both the Lord Chancellor and the Prime Minister have given their backing to problem-solving in the criminal courts, and the Department for Education has supported the development of a National Unit to help roll out FDAC across the country.

However, expanding problem-solving to take up a larger part of the care proceedings caseload will mean doing more than just expanding FDAC. Firstly, while there are clearly areas where a non-adversarial problem solving model are not appropriate, such as those involving serious physical or sexual abuse, we must look at what other types of cases can benefit from this approach. Already, FDACs in London and Milton Keynes and Buckinghamshire (one of the early adopting FDAC areas) are looking at how to extend the FDAC model to other kinds of complex care cases – like those involving parental mental illness, learning difficulties and domestic violence.

Secondly, we must look at how to spread the burden of investing in FDAC. Currently, local authority children’s services departments are shouldering the bulk of the costs of FDAC. But in the current fiscal climate, this represents a challenge. A more sustainable model would see all of the beneficiaries of FDAC – including the legal aid agency and NHS trusts alongside local authorities – all spreading the burden of the upfront cost.

In care proceedings, our family courts are at the sharp end of many of the most difficult issues facing society today. Addiction, abuse, extreme poverty, mental illness, trauma and many other factors often combine to bring people to the point where they can no longer care for their children. But while removing children may be necessary, it does not address those underlying issues and the same parents can come back time and time again. FDAC and other problem-solving models offer courts a way to start addressing those wider issues, giving children a chance to get their parents back, and saving vital resources at a time of austerity. They represent an opportunity that we have a responsibility to embrace.

 

Stephen Whitehead, Better Courts Programme Manager at the Center for Justice Innovation. He is leading the team’s work on innovation in criminal justice policy, focussing on improving the criminal courts system

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