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Often one parent will allege that the other parent has an alcohol issue when the couple split up. Why this is done can depend on a whole variety of reasons.

Sometimes the alcohol consumption is mentioned in passing but with an acknowledgement that the parent is great with childcare. In other families there is a genuine concern for the children as the alcohol consumption has gone beyond recreational use and was the reason behind the relationship breakdown.

Sometimes allegations are made that are untrue to stop contact or alcohol consumption exaggerated as a justification to stop the children seeing the other parent.

Children Court applications and alcohol testing

A parent can ask the court to order that alcohol testing is undertaken by the other parent before contact with a child takes place.  The parent who is alleged to have a alcohol issue can refuse to be tested and the court cannot force him or her to undergo a test. This however can cause issues for the refusing parent as questions may be asked by the Court and especially Cafcass about the reason for the refusal and sometimes inferences can be drawn which can be detrimental to that parent. Even if the parent against whom the alcohol accusation is made agrees to testing however, the judge can still say that the court does not think that testing will assist.

In the absence of testing and a report the judge will have to base the decision on whether a parent misuses alcohol 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.

The court is normally robust in looking behind the reasons why testing is being sought. Background information is needed, for example if a parent alleges that the alcohol misuse by the other parent is longstanding but before the split up both parents shared the care of the children. The question could be raised about why the alcohol use is now a welfare concern for the children.

The court in children law proceedings is focused on looking at what is in the best interests of a child and therefore the court is only concerned with allegations of alcohol use if they impact on the parent’s ability to look after or spend time with the children.

If there are serious concerns about a child’s welfare, either before or after alcohol testing, the court can ask Cafcass or Social Services to prepare a report.

The court can also order expert reports such as psychological assessments or can make referrals for parents to attend parenting courses.

 How are alcohol tests undertaken in children court cases?

If a court orders testing and a parent agrees to the testing then it can take a variety of forms: hair, blood, urine, then samples are obtained in the presence of a medical professional and after formal identification of the person providing the sample and any testing for court purposes has to be carried out by a recognised testing service.

Does a positive test stop contact?

If a test comes back positive for alcohol it will not necessarily stop contact. Many parents with alcohol 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 Cafcass report or other expert report, decide 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 consider 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 considering 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 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.

Next steps

If you are worried about an ex-partner and their 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 cannot reach an agreement on the childcare 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 use it is equally important to get legal advice especially if contact has been stopped or restricted. That is because the longer contact does not take place, or is restricted, the harder it may be to secure the sort of child arrangements order that you would ideally like.

For family advice  please contact Lesley Smythe on 01244 354813 or email her on lesley.smythe@dtmlegal.com

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