We often hear about cases in which drug and alcohol abuse are known to affect the welfare and wellbeing of children. Drug tests are a routine part of these cases. In such cases parents abusing such substances are usually denied custody or contact with their children.
We consider a recent case of W (A child: care proceedings) (2017) in which it was found that positive drug test should not influence the outcome of a care case.
The case concerned a child who was born in 2016 and has been the subject of care proceedings for the duration of his life. The local authorities involvement in the case was due to the mothers past history of difficulties with drugs. At the time of the final hearings all parties involved were in agreement that there were significant signs that the mother had turned her life around.
The consideration for the court was whether the child should be placed in the care of his mother who has difficulties with drugs. As part of the court proceedings the court had commissioned hair strand testing for drugs. The mother had claimed that she was now drug-free and had turned her life around. This was supported by one of the three tests which were undertaken as this showed no traces of drugs.
Surprisingly the other two tests showed the hair contained levels of a metabolite of cocaine, which was in contrast to what the mother was claiming. In order to address this issue, the court commission a report from a trichologist (a hair specialist).
The hair specialist was of the opinion that the metabolite of cocaine is a substance found in the environment, and accordingly, the results could be explained as a result of contamination.
The judge in this case stated that “First, taken at its height, my concern was that these results could, at worst, indicate only a low level of cocaine consumption. Would it in these circumstances be proportionate to separate mother and child?”
Despite the report from the hair specialist the local authority wishes to maintain its primary case which is that the mother may, in fact, be someone who has ingested drugs despite her claims to the contrary. However, following the report of the hair specialist and in a display of realism it presented an alternative plan for child’s future. The local authority was of the view in the making of a supervision order and, under that supervision order, a return for the child to the care of his mother. This return would involve intensive support from the local authority and social services.
In making the decision the judge stated: “Having accepted Dr Rushton’s evidence, it would not, in my judgment, be in child’s best interests for him to be in any form of care other than care provided by his mother. A supervision order is the right result”.
The judge also had the task to decide on how much time if any the father should spend with the child. The father had supervised contact with the child for a long while, regularly once each week. The father has also had substance abuse difficulties in the past, and there are a number of concerns about him regarding violence and a criminal record.
Nevertheless, it seems to the judge that the focus of his attention should to be towards the fathers behaviour around the child. The judge was of the opinion that there is no suggestion that any of the father’s past difficulties have surfaced in the context of the time he spends with the child. There have been about ten months during which the father has more than proved himself.
The judge concluded that the father should maintain contact with the child and it was agreed that contact be for four hours every two weeks. The judge also ordered the local authority to remove supervision at the latest of 12 weeks from making the order. In the judgement the judge stated: “the child should be spending time with his father in natural surroundings, rather than the artificial surroundings of a contact centre”.
Usually if you’re involved in child act proceedings you will be contacted by Cafcass and will be asked to prepare a safeguarding letter to the court. This letter identifies whether there are any safeguarding concerns which may affect the wellbeing and safety of children and how these should be addressed. A normal course of action would be for one parent to notify Cafcass of any alcohol concerns they have in relation to the other parent.
When Cafcass are investigating this matter, they will consider your concerns regarding alcohol or drug misuse problems and present these to the court. Should both Cafcass and the court believe your concerns are valid, and need investigation, they then can order the relevant parent to take part in alcohol and or drug testing. It is therefore important that where you feel such concerns are likely to impact the welfare and safety of your child you communicate this effectively to both the court and Cafcass. Such an issue could affect the type of contact, if any, that is awarded to the parent against whom the concerns are raised, if proven to be true. At Kabir Family Law our child specialists can assist you in preparing for your Cafcass call to ensure you get across your concerns to Cafcass in a clear, concise and coherent manner.
Ultimately the courts will consider the report of Cafcass, which they will consider as part of their decision making process.
If the courts are satisfied that there are serious concerns regarding one parents alcohol abuse based on information provided by the other parent as well as the Cafcass report, the courts can order alcohol and or drug testing. The test ordered by the court is usually by hair strand testing, this way it can be easier to get segmented results which can cover a period of up to 12 months. However other forms of testing such as blood and urine can also be ordered the testing is usually carried out by approved drug and alcohol testing laboratories. These tests are then processed with the results being sent to the parties and the courts. The Court will usually make an order which will need to be served on the laboratory and there will be deadlines which will need to be complied with.
If the parent against whom allegations of alcohol misuse are made refuses to take part in alcohol testing then the courts cannot force them to do so. However the court can question their reason for refusal to engage in alcohol testing. The courts can also draw negative inference and can just make their decision based on the evidence and information presented by the other parent as well as the report and analysis of Cafcass or the local authority.
Alcohol testing and a positive result does not mean that your contact will be stopped, or your child will be removed from your care. The result is considered in conjunction with other factors, as with all child maters, the key priority for the court is the welfare of the child. The court will therefore assess the significance of the alcohol test and the report of Cafcass or other experts as well as considering the child’s wishes and feelings, whether the child has suffered any harm or is likely to suffer any harm as a result of the alcohol and the capability of the parent to meet the children’s needs and their ability to care for the children. The court will also consider whether the alcohol or drugs are consumed in the presence of the children and whether these can be accessed by the child whilst in the concerned parents care. A positive result alone may not be a decisive factor given the courts take into account other factors when making their decisions.
You may be a parent who has come to know about alcohol concerns regarding the other parent either through social media, a third party or your child which you were not previously aware of. You might be at a stage in proceedings where Cafcass or the local authority are no longer involved, in the first instance we would recommend you raising such concerns to Cafcass and the local authority as soon as you can. Our family law specialists can also assist you in preparing a statement which contains your concerns ahead of any future listed hearings, this is to ensure the courts also become aware of your concerns. We can also assist you in preparing an interim application for alcohol testing based on you just learning of such concerns, which ordinarily you would have raised to the relevant parties at the start of the proceedings. If you are a concerned parent who has just come to know of alcohol and drug issues with the other parent, and are concerned of the effect on the safety and wellbeing of your child, then contact us today so we can discuss this with you through a free initial consultation.
Where there is a positive finding of excessive alcohol or drug use the court may look to suspend your contact after they have considered all the relevant factors. In such a situation the court and Cafcass or the local authority may provide guidance as what you may need to do and comply with certain directions. This could involve going through treatment or rehabilitation as well as carrying out any specific courses. Once these directions have been completed and complied with you may then be able to revert the matter back to the court to re-instate your contact and or obtain custody providing there are no further safeguarding concerns. You may also be subject to a further alcohol or drug test to prove you no longer have such issues.
You may find yourself in a position where the other parent has restricted your contact and made allegations of alcohol misuse. If this is the case then you should seek legal advice and assistance as soon as possible. Advice should be as sought as early as possible and ideally as soon as your contact has been restricted or stopped. This is as the longer you leave the matter the more difficult it could be for you to resolve issues. If there is currently no court orders in place then we can assist you in making an urgent application to the court to reinstate your contact. We can assist you with preparing your statement in support which will outline the nature of the allegations and assist you with using your evidence to show how such allegations are false.
If there is a child arrangement order in place but your access to your child has been restricted due to concerns over alcohol misuse, then we can also assist you in making an enforcement application to ensure your contact is not restricted.
Alcohol or drug testing is usually ordered by the parent making the allegation of alcohol or drug misuse. However where Cafcass have recommended alcohol testing they can request the same. Where a case concerns care proceedings, then a local authority can make a request to the court for alcohol or drug testing. Children’s services can request for an alcohol or drug test at any stage of the proceedings. Ultimately it will be the decision of the court whether to order for testing and if so this will be recorded in an order of the court.
If you would like any advice and assistance in establishing child custody or information around court drug tests contact us today on 0330 094 5880, or let us call you back to arrange a free initial consultation. We deal with all aspects of family law and can also provide consultations by way of Skype. With family lawyers in York, Newcastle, Cardiff, Oxford, Northampton and London we are able to serve client’s nationally across the country.
We are a team of family law and divorce experts with years of experience in dealing with all areas of family law matters.
We are not part of a firm of Solicitors, do not undertake legal reserved actives unless permitted and are therefore entirely independent.
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