Addiction and coparenting – how to arrange drug and alcohol testing in the context of childcare disputes and other legal proceedings involving children.
Concerns surrounding a parent’s substance abuse are a common safeguarding issue raised in children proceedings before the family court. Understandably, all involved in decisions as to the arrangements for a child’s care need to be reassured that the child will not encounter or be impacted, whether directly or indirectly, by an alcoholic or drug-addicted parent abusing those substances.
To that end, the courts have the power to require parents to undergo drug and/or alcohol testing on a standalone or regular basis. These orders are generally made on the recommendation of the Children and Family Court Advisory and Support Service (CAFCASS), whose role is to advise the court on how to protect children and act in their children’s best interests.
It is also open to parents to agree to testing on a voluntary basis outside of course proceedings. Parents with a history of substance abuse may wish to offer testing to reassure their co-parent that their addiction issues are in the past, or to provide that the allegations made against them are unsubstantiated.
Drug and alcohol testing can take many forms, and careful consideration should always be taken as to what form of testing would work best for a family, depending on their circumstances and budget.
How does drug testing in family law proceedings work?
Drug testing can take the form of hair strand testing, whereby a hair sample is taken and processed by the laboratory of the chosen drug testing provider. The longer the hair sample, the longer the period that can be covered by the test (though this is also influenced by factors such as the speed at which that person’s hair grows).
If the testing has been ordered by the court, the relevant court order will specify what drugs are to be tested for. If the testing is on a voluntary basis, the parents will need to agree on this, with help from their solicitors and the laboratory if needed. Given that the cost of testing usually increases in line with the number of substances being tested for, it is important to strike the right balance between testing all substances which may be relevant, while also not taking an unnecessarily broad approach.
The laboratory can also be instructed to prepare a segmented test, so that the period tested is broken down and results given for each period. This can be useful in demonstrating whether a parent has reduced or increased their drug use, and also showing how much time has elapsed since they last consumed the substance in question.
An alternative to hair strand testing is nail testing, whereby finger or toenail samples are taken and analysed. This option has some limitations compared to hair testing, but can be useful where the test subject does not have sufficient hair for a sample to be taken, or where there is a concern about the hair being capable of being tested, such as where it has been dyed or chemically tested.
How does alcohol testing in family law proceedings work?
Hair strand testing can also be used to establish the extent of an individual’s alcohol use by testing levels of alcohol markers such as Etg (Ethyl Glucuronide) and FAEE (Fatty Acid Ethyl Esters). The test results will confirm whether the subject’s alcohol use over the period covered by the sample (usually several months) is chronic and excessive.
Alcohol testing can also be carried out by blood test, whereby a blood sample is taken from the individual and tested for levels of Phosphatidylethanol (PEth), another alcohol marker. The blood test deals with short term consumption, and so can be particularly useful where there is a concern that the excessive alcohol use is recent. Urine testing can also be an option where testing is only required to deal with recent consumption.
Another option for monitoring an individual’s alcohol consumption moving forwards is for them to be fitted with a “scram” alcohol monitoring device, which is fitted to the test subject’s ankle and takes ongoing skin readings and can provide notification of alcohol consumption.
What are the options for instant drug and alcohol testing?
It is possible for instant drug testing to be carried out, whereby a mouth swab sample is taken and tested instantaneously by the sample taker to establish whether a parent is under the influence of drugs at a specific time, such as when the child is due to spend time with them. If relevant, the parent can also be required to provide a breathalyser sample, which again provides immediate confirmation as to whether a parent is under the influence of alcohol at the time.
These forms of instant testing can be made a prerequisite to a parent collecting a child to spend time with them, on the basis that the plans will only proceed if the test results are confirmed by the sample taker to be clear. Often instant testing requirements are linked to a requirement that the parent’s time with the child is supervised by a third party, to protect against the risk of them consuming drugs or alcohol after they have passed the test. This third party can either be a professional contact supervisor or someone who is personally known to and trusted by both parents. Where appropriate, it may also be agreed that the supervisor will carry out the testing, to avoid the cost of a formal drug test provider joining.
What happens after a positive drug or alcohol test?
The consequences of a positive drug or alcohol test result will depend on the facts of the case, including the type and extent of the drug and alcohol consumption indicated by the test results, the age of the child, the extent of the safeguarding risks identified, and the steps which can be taken to address those risks. In deciding how things should proceed, the court will take into account the test results, the child’s age, the views of Cafcass/other professionals as to what is best for the child, the evidence of both parents and the support available to the parent who has tested positive. Outcomes might involve the parent committing to a sobriety programme or to seek other forms of support, and their time with the child being subject to supervision and instant testing requirements.
Co-parenting can be particularly challenging when one parent is dealing with drug and alcohol addiction. Family lawyers can help navigate the issues that arise in such cases, including involving the courts where testing arrangements or contact arrangements cannot be agreed, dealing with the practical arrangements for testing, and advising on how to proceed in light of test results once received.
Written by Cate Maguire, Senior Associate in the Family and Divorce Team at Kingsley Napley.