Part of: Child Custody Specialists
Court rules mothers drug test results could be due to contamination
Alcohol or drug testing – even where there is a positive drug test in a child custody case – does not automatically mean that your contact will be stopped or your child will be removed from your care.
In many cases, decisions are heavily influenced by safeguarding reports and interviews, so being properly prepared for your Cafcass involvement or local‑authority assessment can make a real difference to how a positive drug test in a child custody case is understood and weighed.
We often hear about cases in which drug and alcohol abuse are known to affect the welfare and well-being of children. Positive drug tests in child custody cases are now a routine part of these disputes, but the results are not always straightforward to interpret. In such cases, a parent’s drug use or ongoing drug habit can negatively impact the court’s assessment of their parental fitness and their ability to care for the child. Parents abusing such substances are usually denied custody or contact with their children. Even where substance misuse is a genuine concern, the outcome is not automatic. Courts look closely at whether there is a pattern of unsafe behaviour around the child, what steps the parent has taken towards change, and how any risk is managed within existing child custody and contact arrangements. The court considers the parent’s ability to provide a safe and stable environment, taking into account any evidence of a parent’s drug use or drug habit. In many cases, decisions are heavily influenced by safeguarding reports and interviews, so being properly prepared for your Cafcass involvement or local‑authority assessment can make a real difference to how allegations of drug or alcohol use are understood and weighed.
We consider a recent case of W (A child: care proceedings) (2017) in which it was found that positive drug test should not influence the outcome of a care case.
The case concerned a child who was born in 2016 and has been the subject of care proceedings for the duration of his life. The local authorities involvement in the case was due to the mothers past history of difficulties with drugs. At the time of the final hearings all parties involved were in agreement that there were significant signs that the mother had turned her life around.
Should the child be placed in the care of a parent with a positive drug test?
The consideration for the court was whether the child should be placed in the care of his mother who has difficulties with drugs. As part of the court proceedings, the court had commissioned a court-ordered drug test, specifically hair strand testing, to assess drug intake. Courts may use various testing methods, such as urine tests, blood tests, and hair follicle tests, each with different detection windows to identify recent or long-term drug use. The mother had claimed that she was now drug-free and had turned her life around. This was supported by one of the three tests which were undertaken as this showed no traces of drugs.
Surprisingly, the other two tests showed the hair contained levels of a metabolite of cocaine, which was in contrast to what the mother was claiming. In order to address this issue, the court commissioned a report from a trichologist (a hair specialist).
The hair specialist was of the opinion that the metabolite of cocaine is a substance found in the environment, and accordingly, the results could be explained as a result of contamination.
Judge considers whether it would be proportionate to remove the child from the mother
The judge in this case stated that “First, taken at its height, my concern was that these results could, at worst, indicate only a low level of cocaine consumption. Would it in these circumstances be proportionate to separate mother and child?” This shows that even where there is a positive drug test in a child custody case, the court still has to decide whether removal is a proportionate response to the actual risk.
Despite the report from the hair specialist the local authority wishes to maintain its primary case which is that the mother may, in fact, be someone who has ingested drugs despite her claims to the contrary. However, following the report of the hair specialist and in a display of realism it presented an alternative plan for child’s future. TThe local authority was of the view in the making of a supervision order, which is a court order designed to ensure the child’s safety, and, under that supervision order, a return for the child to the care of his mother. This return would involve intensive support from the local authority and social services. Children’s services may also be involved in monitoring compliance with the court order and providing ongoing support.
Judge orders return of the child to the mothers care
In making the decision the judge stated: “Having accepted Dr Rushton’s evidence, it would not, in my judgment, be in child’s best interests for him to be in any form of care other than care provided by his mother. A supervision order is the right result”.
The judge also had the task to decide on how much time if any the father should spend with the child. The father had supervised contact with the child for a long while, regularly once each week. The father has also had substance abuse difficulties in the past, and there are a number of concerns about him regarding violence and a criminal record.
Nevertheless, it seems to the judge that the focus of his attention should to be towards the fathers behaviour around the child. The judge was of the opinion that there is no suggestion that any of the father’s past difficulties have surfaced in the context of the time he spends with the child. There have been about ten months during which the father has more than proved himself. The father’s visitation rights were determined based on his recent behaviour and the absence of current concerns.
The judge concluded that the father should maintain contact with the child and it was agreed that contact be for four hours every two weeks. The judge also ordered the local authority to remove supervision at the latest of 12 weeks from making the order. In the judgement the judge stated: “the child should be spending time with his father in natural surroundings, rather than the artificial surroundings of a contact centre”. This represents a shift from supervised to unsupervised contact, reflecting the court’s assessment of risk and the child’s welfare.
Cafcass alcohol test and positive drug test concerns
Usually if you’re involved in child act proceedings you will be contacted by Cafcass and will be asked to prepare a safeguarding letter to the court, which often becomes the starting point for any positive drug test or alcohol‑use concerns raised later on. This letter identifies whether there are any safeguarding concerns which may affect the wellbeing and safety of children and how these should be addressed. A normal course of action would be for one parent to notify Cafcass of any alcohol concerns they have in relation to the other parent.
When Cafcass are investigating this matter, they will consider your concerns regarding alcohol or drug misuse problems and present these to the court. In custody disputes, the court and Cafcass require credible evidence to support allegations of substance misuse before ordering drug or alcohol testing. Allegations of illicit drug use still need supporting evidence before any testing is ordered. Should both Cafcass and the court believe there is credible evidence and that further investigation is needed, the court can order drug or alcohol tests for the relevant parent. It is therefore important that where you feel such concerns are likely to impact the welfare and safety of your child you communicate this effectively to both the court and Cafcass. Such an issue could affect the type of contact, if any, that is awarded to the parent against whom the concerns are raised, if proven to be true. At Kabir Family Law our child specialists can assist you in preparing for your Cafcass call to ensure you get across your concerns to Cafcass in a clear, concise and coherent manner.
Ultimately the courts will consider the report of Cafcass, which they will consider as part of their decision making process.
How are alcohol tests undertaken in child law proceedings?
If the courts are satisfied that there are serious concerns regarding one parent’s alcohol or drug abuse, based on information provided by the other parent as well as the Cafcass report, the courts can order testing that may ultimately produce a positive drug test in your child custody case. The test ordered by the court is usually by hair strand testing, this way it can be easier to get segmented results which can cover a period of up to 12 months. However other forms of testing such as blood and urine can also be ordered the testing is usually carried out by approved drug and alcohol testing laboratories. These tests are then processed with the results being sent to the parties and the courts. The Court will usually make an order which will need to be served on the laboratory and there will be deadlines which will need to be complied with.
Testing is only one part of the picture. Courts also look carefully at who has raised the concerns, how consistent those concerns have been over time, and whether there is any evidence of exaggeration or tactical use of allegations to disrupt child arrangements and custody. In some cases, especially where there is a history of conflict, your lawyer may advise using a structured Scott Schedule to set out the key incidents and responses clearly, so judges and Cafcass can see whether the testing request is rooted in genuine welfare worries or part of a wider pattern of dispute.
What happens if the parent refuses an alcohol test?
If the parent against whom allegations of alcohol misuse are made refuses to take part in alcohol testing then the courts cannot force them to do so. However the court can question their reason for refusal to engage in alcohol testing. Refusing to participate in testing can negatively impact parental rights and custody rights and, in some cases, may result in a parent losing custody or being limited to supervised visitation. The family court can also draw a negative inference from that refusal based on the evidence already before it, including the information presented by the other parent as well as the report and analysis of Cafcass or the local authority.
Does a positive drug test or alcohol test mean contact will be stopped, or my child will be removed from my care?
Alcohol testing and a positive result does not mean that your contact will be stopped, or your child will be removed from your care. Similarly, a positive alcohol or drug test does not automatically give the other parent valid reasons to stop child contact altogether. The court will look at how recent and serious the use is, what support or treatment you are engaging with, and whether safeguards such as supervised or supported contact can protect the child while you work on your recovery. Where contact has already been restricted or stopped because of test results, our specialists can advise on urgent applications to reinstate contact, or on enforcement of existing child arrangements orders once you have addressed the court’s concerns. The result is considered in conjunction with other factors, as with all child maters, the key priority for the court is the welfare of the child. The court will therefore assess the significance of the alcohol test and the report of Cafcass or other experts as well as considering the child’s wishes and feelings, whether the child has suffered any harm or is likely to suffer any harm as a result of the alcohol and the capability of the parent to meet the children’s needs and their ability to care for the children. The court will also consider whether the alcohol or drugs are consumed in the presence of the children and whether these can be accessed by the child whilst in the concerned parents care. A positive result alone may not be a decisive factor given the courts take into account other factors when making their decisions.
Can I request an alcohol test on the other parent part way through proceedings?
You may be a parent who has come to know about alcohol or substance misuse concerns regarding the other parent either through social media, a third party, or your child which you were not previously aware of, and these concerns often arise in family court during private family law cases. You might be at a stage in proceedings where Cafcass or the local authority are no longer involved, in the first instance we would recommend you raising such concerns to Cafcass and the local authority as soon as you can. Our family law specialists can also assist you in preparing a statement which contains your concerns ahead of any future listed hearings, this is to ensure the courts also become aware of your concerns.
We can also assist you in preparing an interim application for alcohol testing based on you just learning of such concerns, which ordinarily you would have raised to the relevant parties at the start of the proceedings. If you are a concerned parent who has just come to know of concerns involving an illicit substance, alcohol, or drugs more generally with the other parent, and are concerned of the effect on the safety and wellbeing of your child, then contact us today so we can discuss this with you through a free initial consultation.
What happens if my alcohol or drug test returns positive and the courts have stopped my access to my children?
Where there is a positive result or a failed drug test, or a finding of excessive alcohol use, the court may, after considering all the relevant factors, look to suspend your contact. In such a situation the court and Cafcass or the local authority may provide guidance as to what you may need to do and require you to comply with certain directions. This could involve undergoing drug treatment or rehabilitation, especially if you have been identified as a drug user, as well as carrying out any specific courses. Demonstrating your commitment to drug treatment and recovery is important, as the court will assess whether you can provide a safe environment and a safe and stable environment for your child. Once these directions have been completed and complied with, you may then be able to revert the matter back to the court to re-instate your contact and/or obtain custody, provided there are no further safeguarding concerns. If both parents are unfit, custody may be granted to a third party. You may also be subject to a further alcohol or drug test to prove you no longer have such issues.
What can I do if there have been false allegations of alcohol misuse made against me?
You may find yourself in a position where the other parent has restricted your contact and made allegations of alcohol or drug misuse, sometimes pointing to a positive drug test without explaining the full context. If this is the case then you should seek legal advice and assistance as soon as possible. Advice should be as sought as early as possible and ideally as soon as your contact has been restricted or stopped. This is as the longer you leave the matter the more difficult it could be for you to resolve issues. If there is currently no court orders in place then we can assist you in making an urgent application to the court to reinstate your contact. We can assist you with preparing your statement in support which will outline the nature of the allegations and assist you with using your evidence to show how such allegations are false. Making false accusations of substance misuse or domestic violence can have serious consequences in custody proceedings, as the court takes these matters very seriously and they can significantly impact the outcome.
If there is a child arrangement order in place but your access to your child has been restricted due to concerns over alcohol misuse, then we can also assist you in making an enforcement application to ensure your contact is not restricted.
Who can request alcohol or drug testing in family proceedings?
Alcohol or drug testing is usually ordered by the parent making the allegation of alcohol or drug misuse. However where Cafcass have recommended alcohol testing they can request the same. Where a case concerns care proceedings, then a local authority can make a request to the court for alcohol or drug testing. Children’s services can request for an alcohol or drug test at any stage of the proceedings. Ultimately it will be the decision of the court whether to order testing, and if so this will be recorded in an order of the court and may later lead to a positive drug test in your child custody case being relied on in evidence.
Where false or exaggerated allegations about drugs or alcohol have already led to contact being restricted, you may need to tackle both the testing issue and the underlying order. That might mean applying urgently to re‑establish contact or to enforce a child arrangements order if the other parent is withholding time without solid evidence, or inviting the court to make clear findings about what did and did not happen. In more serious cases, especially where fabricated allegations form part of a wider pattern of control, our team can also advise on whether protective steps such as non‑molestation or occupation orders are appropriate to draw firmer boundaries around your co‑parenting relationship.
If you would like any advice and assistance in establishing child custody or in dealing with a positive drug test in your child custody case, contact us today on 0330 094 5880, or let us call you back to arrange a free initial consultation. We deal with all aspects of family law and can also provide consultations by way of Skype. With family lawyers in York, Newcastle, Cardiff, Oxford, Northampton and London we are able to serve client’s nationally across the country.
