FDAC under attack

by Alex Laing

In the words of Sir James Munby, the threatened closure of the FDAC National Unit is “profoundly disturbing news”, undermining efforts to help “some of the most vulnerable and marginalised parents and children in our society”

The Care Crisis Review

In June 2018, the Care Crisis Review published its report. That review, funded by the Nuffield Foundation and facilitated by the Family Rights Group, brought together a “coalition of the willing”, as termed in the report. Its participants were drawn from across the child welfare and family justice sector in England and Wales. Its task? To identify and agree what is known about the factors contributing to the rise in proceedings and the rise in the number of children in care and, then, to identify solutions at practice, organisational and system level to tackle the crisis.

The Care Crisis Review completed its work over seven months. The backdrop to its mission was bleak: a year on from Sir James’ warning, the number of care applications in England and Wales reached record levels, and the number of children in the care system was the highest since the passing of the Children Act in 1989.

The lengthy, well-informed and detailed report drew a number of conclusions. It, in its own words, confirmed the sense of crisis that is now felt by many young people, families and those working within the system. The report commented:

 “Many professionals described the frustration they feel at working in a sector that is overstretched and overwhelmed and in which, too often, children and families do not get the direct help they need early enough to prevent difficulties escalating. There was a palpable sense of unease about how lack of resources, poverty and deprivation are making it harder for families and the system to cope.” [Para 3 – the report can be found online at www.frg.org.uk.]

Not stopping there, contributors felt “a strong sense of concern that a culture of blame, shame and fear has permeated the system, affecting those working in it as well as the children and families reliant upon it”.

The report found positives too. In particular, the Children Act 1989 has “stood the test of time”. For a statute approaching its 20th birthday, in an area of law whipped and shaped by the winds of social change, that is an achievement. Indeed, it highlights, one might think, the importance of discretion and broad concepts in forming supple law: a characteristic shared by the Matrimonial Causes Act 1973. The report commented too on the skill of individual practitioners and the common professional desire to work with families.

Moving on to the second part of its remit, the report sets out 20 options for change. They include, at their heart, a “move away from an undue focus on processes and performance indicators, to one where practitioners are able to stay focused on securing the right outcomes for each child” [para 6]. That is a call, no doubt, that will be warmly received by practitioners. Indeed, it is a cry one hears not only from those in family justice, but from teachers and nurses across the country.

But, a small amount of tempered optimism aside, it all – of course – comes back to money. The Care Crisis Review explicitly seconds the request of the Association of Directors of Children’s Services and the Local Government Association for the government to make up the £2bn shortfall in children’s social care. In considering whether that will happen, we might wish to read too the report, released in the same month, of the Institute of Fiscal Studies and Anne Longfield OBE, the Children’s Commissioner for England – Public Spending on Children in England: 2000 to 2020, June 2018, available online on the Children’s Commissioner’s website. There, the IFS note that England now spends nearly half of its entire children’s services budget on 73,000 children in the care system, leaving the other half for the remaining 11.7 million children.

Anne Longfield hopes that her report “will now help to move the debate on from one simply about the headline amount we spend on children, and to a debate about how we spend it”. But, where half of the children’s services budget is required to fund the care system, that funding is demonstrably insufficient, and if there is not enough left for the other 11.7 million children, the headline amount is, let us be frank, vital.

And, of course, more money in one place leads to cuts elsewhere.

The threat to FDAC 

One such cut is to the Family Drug and Alcohol Court (FDAC). Remember the well-founded criticisms when LASPO 2012 took a scythe to the legal aid bill that this would prove a false economy? Well, it turns out that no one listened. Because that same scythe, sharpened and glistening, has decapitated FDAC.

FDAC, as many readers will know, is an award-winning problem-solving court. It is a court which, in contrast to the reactive and adversarial functioning of the Family Court, takes an interventionist role: it assists parents and children blighted by addiction to break the cycle and reach a safe and positive future.

The moral justification for such a court is self-evident. So, let us begin instead with the headline economic figure: it is calculated that FDAC saves the local authorities who participate £2.30 for every £1 spent. That is quite a lot; indeed, one might think that a stretched local authority would wish to spend a fair few £1s on the FDAC process so as to recoup those £2.30s.

Sitting atop local FDACs is the FDAC National Unit – the umbrella organisation that helps organise and guide the local FDACs, including assisting with the roll-out of the FDAC programme to new courts and in new areas. In Sir James’ view, it is the “midwife and… health visitor” which is “so important in the planning, implementation and nurturing of each new FDAC”.

Sounds important, right?

But, wait for it… in September 2018, funding ceased and the core team is no longer in post. Between now and April 2019, the National Unit will run at a minimum operational level, while discussion about its future continues.

Whilst the removal of the FDAC National Unit need not lead to the closure of local FDACs, it – clearly – makes life more difficult. To return to Sir James more fully, quoting from his judicial announcement Care crisis: Family Drug and Alcohol Court of 21 June 2018, (available online at www.judiciary.uk):

 “While I very much hope that this latest development will not prejudice the continuing viability of the established FDACs, this profoundly disturbing news must be of immense concern to everyone who, like me, is passionate about the need to improve our family justice system for the benefit of the families, children and parents we serve. For those families and parents, unable at present to access FDAC, and who were anticipating the possible early arrival of an FDAC in their area, the outlook is bleak in the extreme. They surely deserve better of us.
 What this demonstrates is, dare it be said, a failure of imagination, of vision and of commitment by government, national and local.”

To understand why this “failure of imagination” is so very unfortunate, we can do no better than recall the words of the FDAC’s inspirational founder, Nicholas Crichton, a (retired) district judge, quoted in The Law Society Gazette of 21 June 2018:

“We must not let it go under, we really must not. The adversarial system does not work in family law – it’s what we have to fall back on if the parents are not willing to listen to us and make use of the support we give them. But a system that removes the fourth, fifth or sixth child – which happens quite routinely – from families without doing anything about the reasons for the removal is a failing system. Getting government to understand that is actually quite a challenge.”

Has government understood? Erm, not yet. To return to Sir James:

“FDAC improves the life chances of some of the most vulnerable and marginalised parents and children in our society: it increases the sum of human happiness and decreases the sum of human misery – and it saves the system money. […]
 The [Justice] Minister recently visited a settlement conference court. The visit, I would imagine, was valuable and informative. Would it not be possible for time to be found in the Minister’s no doubt busy diary for a Ministerial visit to an FDAC?”

So, in the absence of government, it falls to civic society and broader political forces. In other words: it falls to us.

In that respect, there have been promising signs. Starting with the financial contributions of Hall Brown, family law firms have been urged to pledge to contribute to the National Unit’s running costs. There are political stirrings too: on 6 June 2018, the Earl of Listowel raised it – quoting at length from Sir James – in the second reading in the House of Lords of the Courts and Tribunals (Judiciary and Functions of Staff) Bill. There have been other parliamentary discussions too. Where does all of that leave us? The latest available update from the FDAC website is that “It is the National Unit’s hope that, from April 2019, further funding will be obtained and the National Unit re-established.”

Let us all share that hope, and do something to support it.