This is the first part in a series of blogs answering common questions in relation to drug and alcohol testing in children proceedings in the Family Court.
Parents whose relationship has broken down, or who cannot agree decisions in respect of a child, may find themselves in court proceedings in relation to their child or children.
When the court determines how decisions should be made in relation to the children, the paramount consideration will be the children’s welfare. In circumstances when concerns and allegations have been raised that one or both parent abuses drug or alcohol, the court will need to assess the seriousness of those allegations, and determine whether or not further evidence is required, such as drug and/or alcohol testing, in order to assess the risk to the child before a final decision can be made in relation to the children.
Simply because a parent has alleged the other parent uses alcohol or other substances, does not automatically mean that a Judge will require testing. Whether or not drug or alcohol testing is likely to be necessary in the proceedings will depend the circumstances of each case including consideration as to: on what basis it is believed that the parent abuses drug/alcohol; how often it is alleged that the parent has used drugs/alcohol; how long ago it was; what substances and how much it is alleged the parent has used; whether the children might have been exposed to drugs/alcohol or to the parent’s behaviour whilst under the influence; whether there are any admissions of abuse of drugs or alcohol; whether there are any police records relating to drug/ alcohol abuse; and whether the parent is willing to provide an undertaking, i.e. a formal promise not to use drug/alcohol.
The person who is the subject of the allegations may agree to provide a testing sample, for example: to demonstrate that the allegation is false, or that they have ceased using drugs/alcohol, or that their level of consumption is lower than alleged by the other parent.
If a parent refuses, or is reluctant to provide a sample, the Judge cannot force that parent to provide a sample.
In these circumstances, the Judge may have to make a decision based on other evidence, such as the evidence from both parents as well as any witnesses. The Judge may also draw negative inferences from any parent who refuses to participate in drug or alcohol testing.
This means that the Judge might assume that the reason why that parent has refused to undertake testing is because the allegations of drug/ alcohol abuse are true.
Similarly, the court may draw negative inferences if a parent who has been directed to undertake testing attempts to interfere with the testing results, for example by dyeing or cutting their hair very short at the time of testing.
In summary, whilst a parent can refuse to undertake drug or alcohol testing, if this has been determined as necessary by the court and the parent refuses to co-operate by providing a sample, then the court may draw negative inferences and assume the refusal is because the allegations of drug/alcohol abuse are true. Therefore, if the parent subject to the allegations of drug/alcohol says the allegation are untrue it will be in their best interest to cooperate in providing a sample to prove this.
If you or anyone you know would like advice in relation to child arrangements, or drug and alcohol testing in children proceedings, please contact our family team, or call us on 01206 835300.