Drug and Alcohol Concerns - Children Act Proceedings

If you are concerned that contact between your child(ren) and ex-partner is not safe because of substance abuse (whether the drugs are legal or illegal) or excessive alcohol consumption, but are unsure what to do, you have come to the right place. We can help you understand what the law says about issues such as these and what rights you, as a parent, have.

All parents have a duty to safeguard their child(ren) from risk and ensure that they are kept safe. If your ex-partner is taking drugs or drinking alcohol to excess, or you suspect they are, then it may be appropriate to stop your children having contact, even if there is an Order in place that allows contact.

If the contact arrangements have been ordered by the Family Court via a Child Arrangements Order, you may need to apply to vary the arrangements to ensure that you are not in breach of the Order.  

If your ex-partner has not made an application to enforce the original Court Order but you know they are about to, then you may wish to wait until their application is made and then apply to vary the contact arrangements within those new proceedings. If you are unsure on whether a court application is required, it is important to seek urgent legal advice and we can help you understand what will need to be done.

As specialist family lawyers, we are often faced with questions about drug and alcohol testing when we deal with children’s law and family proceedings. A few common questions are answered below.

Do I need to go to court in order to have a drug/alcohol test?

The simple answer is no. You can easily agree to take a drug/alcohol test without bringing the matter to the court’s attention. There are many reputable organisations that can help you with testing. If you are already going through the court process, an application will need to be made setting out which organisation you wish to use, which test you are seeking and what the charges will be.

Who pays for the drug/alcohol testing report?

The payment can be made by the party who is being tested or apportioned equally. We find that because the results of the test can impact the contact a child will have with their other parent, the court often orders that the costs be shared. If you are on a low income or in receipt of Universal Credit, you may be eligible for some public funding to assist with the payment.

What does a drug/alcohol test entail?

Normally, a drug test is undertaken through a hair strand sample. However, if your ex-partner has no hair or has recently dyed it or cut it really short, there are other options available, such as fingernail testing. The sample is collected either at home, at a testing site or at your GP’s premises. 

Hair samples are shaved or cut and not plucked. However, depending on the report required, it may be that the sample is taken from other parts of your body.

A hair strand test can also be used to test for alcohol although most people prefer to have results from a blood test. Technology has really come a long way and we increasingly see the courts use results from special bracelets that assess alcohol consumption 24 hours a day. Whether allegations of excessive alcohol consumption have been made by you or against you, these bracelets can really help determine whether alcohol has become a problem.

How many months does the test cover?

This depends on the substance and the type of sample. A hair strand drug test can cover up to 12 months whereas the same sample will only cover six months for alcohol consumption. 

The difficulty often faced by clients is that the sample is insufficient to cover the desired period. By way of example, you need approximately one centimetre of hair to cover one month of test results. When people have very short hair - for example, six centimetres - the results will only cover six months. This does not mean that you have no other options. As stated above, there are other methods of checking drug use/alcohol consumption.

How will the court decide whether drugs or alcohol consumption are of concern?

The court has to weigh up what is in the best interests of your child. Just because a parent takes drugs or drinks alcohol to excess, it does not automatically mean that the court will refuse all contact.

In making a decision about contact, the court will consider the ‘welfare checklist’ as follows:

• How capable each parent is to care for the child and meet the child’s needs
• The child’s wishes taking into account their 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 individual characteristics of the child that the court thinks are relevant.

This checklist allows the court to consider how often the drugs/alcohol are used and, on balance, what type of court order will help to maintain your child’s relationship with the other parent whilst keeping your child safe.

The court does not want to stop a child from seeing their parent as it is widely recognised that a child usually benefits from having a relationship with both parents, unless that would put them at risk of harm. Ultimately, it boils down to whether the child is safe with your ex-partner and whether they are able to care for your child if left alone with them. If the answer is no, then direct unsupervised contact is unlikely to be ordered.

The court can also order a parent to attend courses to help them manage their substance abuse. As well as helping the parent to maintain contact with their child, this can often be the first step in addressing their addiction.

What shall I do about contact?

If you are not convinced that your ex-partner can keep your child safe without supervision/support, then you need to consider other options. These can include, but are not limited to, a friend or family member supervising/supporting contact, arranging meetings at a contact centre or having virtual contact through video calls. It may also be possible to test regularly before and after contact (for instance through a urine sample) to ensure that the parent is not under the influence of drugs/alcohol at the time they see the child.

Supervised contact requires the supervisor to be present at all times, whereas supported contact simply requires a supporter to be around and to intervene if they suspect that the child is at a risk of harm or discomfort.