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Drug and alcohol testing
If an allegation of alcohol or substance misuse is made in children act proceedings the court will need to assess the seriousness of the allegations and whether:
Any application for alcohol or substance testing should be granted
If there is a need for a separate finding of fact hearing for the family judge to decide on whether to make findings on any allegations
Whether the court should ask for an independent report from a Child and Family Court Advisor (CAFCAS) to carry out an assessment and report on the child’s wishes or a combined report on the child’s wishes and best interests
Whether the court should order an expert assessment by a psychologist or a psychiatrist.
Is drug and alcohol testing always ordered in custody and contact cases?
Parents often assume that if one parent makes an allegation that the other parent is drinking to excess or is a substance abuser that testing will automatically be ordered by the family judge. That isn’t necessarily the case.
In every children act proceedings (whether it is an application for a child arrangements order, specific issue order or prohibited steps order) the family judge has the job of deciding whether expert reports are needed, including drug or alcohol testing.
Even if the parent against whom the drug or alcohol accusation is made agrees to testing, the judge can still say that the court does not think that testing will assist.
You may question why a family law judge might not order alcohol or substance testing but if, for example, the accusation is one of social drinking or occasional recreational drug use that the other parent was aware of during the relationship and nonetheless during the relationship left the child in the care of the other parent (such as to go on holiday with friends) the court could take a robust view on the need for testing, especially if the child is older and the principle of contact isn’t in dispute.
What happens if drug or alcohol testing is not agreed?
If an accusation of alcohol or substance misuse is made then the parent who makes the allegation will need to say if they want the court to order testing.
The other parent can then decide if they agree to the testing process and a report being prepared for court. If the other parent doesn’t agree to the testing then the court cannot order the testing against an adult’s wishes or force the parent to participate in the testing.
Many parents are keen to take part in testing in order to ‘’clear their name’’. Other parents think that it is in their best interests to agree to the tests because they believe that the test results will show an alcohol or substance misuse problem that is far less serious than the other parent is alleging.
What can the court do if a parent won’t agree to alcohol or substance testing?
If a family law judge thinks that drug or alcohol testing would help them make a decision on child custody or contact but the parent against whom the allegations are made won’t agree to participate in the testing then the judge can’t force the parent to undergo testing.
In the absence of testing and a report the judge will have to base the decision on whether a parent misuses alcohol or drugs on the evidence that he or she hears from both parents and any witnesses. The judge can also make inferences against the parent who refused to participate in the tests. It is important to appreciate the consequences of not agreeing to the tests before making a final decision on whether to cooperate or not. Sometimes the initial reaction is to say no to the testing as a matter of principle or because an ex-partner has said that they want the tests to take place.
It can be best to carefully think about the request rather than refuse immediately the other parent or judge raises the issue of testing.
How are drug tests undertaken in child custody and contact cases?
If a family court orders testing then it can take a variety of forms: hair, blood, urine. Testing over a period of time may be required to look at future usage. Historical usage of some drugs can be tested through hair strands if the strands are of sufficient length.
Any testing for court purposes has to be carried out by a recognised testing service. Samples are obtained after formal identification document is provided by the parent providing the sample.
Does a positive drug test stop contact?
If a test comes back positive for alcohol or substances it won’t necessarily stop contact. Many parents with alcohol or substance issues care for their children or have regular contact with them.
The judge will assess the significance of the testing results and report and then, potentially with the help of a CAFCAS report or other expert report, make a decision on what child custody and contact is in the child’s best interests.
In making the decision on the appropriate child arrangements order the court will take into account a range of factors , known as the ‘’welfare checklist’’. This list includes:
How capable each parent is to care for the child and meet the child’s needs
The child’s wishes taking into account the child’s age and understanding
The child’s physical, educational and emotional needs
Any harm the child has suffered or is at risk of suffering
The likely effect of a change of circumstances on the child
Any relevant characteristics of the child that the court thinks are relevant.
This checklist allows a judge to look at a child’s age, health, wishes and other factors to reach a balanced view on what type of child arrangements order is in the child’s best interests. If a parent has drug or alcohol issues they can put a case to say that the extent of their usage does not affect their parenting or that their usage was historical.
The other parent can present their views and say why, in their opinion, either contact or unsupervised contact would present a risk to the child.
If you are worried about an ex-partner and their drug or alcohol use it is best to take legal advice to discuss the issues and explore the options for contact to take place in an enjoyable and safe environment for the child. If you can’t reach an agreement on the child care and contact arrangements either you or your ex-partner could apply to the court for a child arrangements order.
If you are a parent facing allegations of alcohol or drug use it is equally important to get legal advice especially if contact has been stopped or restricted. That is because the longer contact doesn’t take place, or is restricted, the harder it may be to secure the sort of child arrangements order that you would ideally like.
If you need advice on alcohol and drug issues and the impact on child contact then the we are here to help you.