Answering an allegation of drug misuse before contact could resume

The legal issue

Contact between a parent and a child had stopped because of an allegation that the parent was misusing drugs. An allegation of this kind creates a particular difficulty. Until the court knows whether it is made out it cannot assess the risk, and for as long as it does not know, the child is not seeing that parent at all. Delay therefore works against the child whichever way the allegation eventually falls, which is why Children Act 1989 s.1(2) requires the court to have regard to the general principle that delay is likely to prejudice a child's welfare.

Three questions had to be kept apart. First, what evidence would actually answer the allegation. Second, whether that evidence is something the court has power to obtain, and on what terms. Third, running alongside both, what arrangements serve this child's welfare while the answer is awaited.

The child was living with one parent when concerns were raised about the other parent’s alleged drug misuse. Before those concerns arose, the child had been spending regular time with that parent. Contact then stopped while the allegation remained unresolved. The matter came before the family court so that the evidence required, and the child’s arrangements in the meantime, could be considered.

The law this rests on

• Children Act 1989 s.1(1)
• Children Act 1989 s.1(2)
• Children Act 1989 s.1(2A) and s.1(2B)
• Children Act 1989 s.1(3)(e)
• Children Act 1989 s.1(5)
• Children Act 1989 s.8
• Children Act 1989 s.11(1), s.11(2) and s.11(7)
• Children Act 1989 s.11A, in particular s.11A(6)
• Children Act 1989 s.11H
• Children and Families Act 2014 s.10
• Children and Families Act 2014 s.13
• Family Procedure Rules 2010 Part 25
• Family Procedure Rules 2010 rule 25.6
• Family Procedure Rules 2010 rule 25.7
• Family Procedure Rules 2010 rule 25.11
• Family Procedure Rules 2010 rule 12.12
• Family Procedure Rules 2010 Practice Direction 12B (Child Arrangements Programme)
• Family Procedure Rules 2010 Practice Direction 25C

How we approached it

The starting points are fixed by statute and they do not shift because an allegation has been made. The child's welfare is the court's paramount consideration under Children Act 1989 s.1(1). The court must have regard to the principle in s.1(2) that delay is likely to prejudice the child's welfare. It works through the welfare checklist in s.1(3), and in a matter of this kind s.1(3)(e) - any harm the child has suffered or is at risk of suffering - is the item doing most of the work. The court also presumes under s.1(2A) that a parent's involvement furthers the child's welfare unless the contrary is shown, and s.1(2B) makes clear that involvement means involvement of some kind, direct or indirect, and not any particular division of the child's time. Section 1(5) then tells the court not to make an order at all unless doing so would be better for the child than making no order.

The first practical step is getting the case in front of a judge on the right footing. A private law children application is normally preceded by a mediation information and assessment meeting under Children and Families Act 2014 s.10, unless an exemption in the Family Procedure Rules 2010 applies. The case is then managed under Practice Direction 12B of the Family Procedure Rules 2010, the Child Arrangements Programme. That direction provides for safeguarding checks by Cafcass and a safeguarding letter to the court within 17 working days, and for the first hearing dispute resolution appointment to be listed in week 5 or at the latest week 6, with the respondent given at least 14 days' notice. The allegation should be set out plainly in the application so that it is picked up in the safeguarding work rather than surfacing for the first time at the hearing.

The heart of a matter like this is that testing is expert evidence, and expert evidence in children proceedings is tightly controlled. Children and Families Act 2014 s.13(1) prevents anyone instructing an expert for use in children proceedings without the court's permission. Section 13(3) prevents a child being medically or psychiatrically examined or otherwise assessed for that purpose without permission. Section 13(5) prevents expert evidence being put before the court in any form without permission, and s.13(2) makes evidence obtained in breach inadmissible unless the court rules otherwise. Permission may only be given if the court is satisfied the evidence is necessary to assist it to resolve the proceedings justly (s.13(6)). Section 13(7) sets out what the court must consider in deciding that: the impact on the child's welfare, the issues in the case, the questions the expert would be asked, what other evidence is available, whether someone already involved could give evidence on the same matters, the effect on the timetable and conduct of the proceedings, and the cost.

The procedure sits in Part 25 of the Family Procedure Rules 2010. Rule 25.6 requires the permission application to be made as soon as possible and, in private law proceedings, by the first hearing dispute resolution appointment. Rule 25.7 sets out what the application must contain: the field in which the expert evidence is required, where practicable the name of the proposed expert, the issues the evidence is to relate to, whether the evidence could be obtained from a single joint expert, and a draft order dealing with the matters specified in Practice Direction 25C. In children proceedings the application must also state the questions the expert is to be required to answer. Rule 25.11 allows the court to direct that evidence on an issue be given by a single joint expert where two or more parties wish to put expert evidence before it. Practice Direction 25C is explicit that wherever possible expert evidence in children proceedings should be obtained from a single joint expert instructed by both or all the parties. It requires proposed names to be exchanged within five business days, cost sharing to be agreed before the application is made, and a letter of instruction whose questions are within the expert's area of expertise, free of unnecessary or irrelevant detail, and kept to a manageable number.

That last requirement is the one parents most often underestimate. A test result answers only the question the test was asked. Settling those questions in advance, as rule 25.7 requires, is what determines whether the report is useful when it arrives, and it is far harder to put right afterwards.

There is a limit here that matters more than any of the above, and it is a real one. The statutory provisions considered here do not give the family court a general power to compel an adult party to provide a drug or alcohol testing sample. An activity direction cannot require medical or psychiatric examination, assessment or treatment. A parent’s agreement to testing may therefore be sought and recorded in directions, but if agreement is withheld the court must decide the welfare issues on the admissible evidence available. Section 11A allows the court to make an activity direction requiring a party to take part in programmes, classes and counselling or guidance sessions, but s.11A(6) expressly provides that such a direction may not require a person to undergo medical or psychiatric examination, assessment or treatment. Testing of an adult therefore proceeds on the basis of that person's agreement, usually recorded when the directions are made. If a parent declines, the court does not acquire a power to insist. It decides the allegation on the evidence that is actually before it, and that evidence will not include a test result.

Where the evidence does come in, the machinery for rebuilding a child's time with a parent is Children Act 1989 s.11(7). A section 8 order may contain directions about how it is to be carried into effect, may impose conditions which must be complied with by a person named in the order or by a parent or other person with parental responsibility, may be made to have effect for a specified period, and may make such incidental, supplemental or consequential provision as the court thinks fit. That is what allows a staged schedule, a condition linked to agreed ongoing testing, where that is lawful, proportionate and appropriate on the evidence, and provision for the matter to return to court for review, where appropriate, within the court’s case-management powers. Section 11(7) permits directions on implementation, conditions applying to specified people, time-limited provisions and incidental or supplemental provisions within a section 8 order. The court sets the timetable for it under s.11(1) and s.11(2), which require it to draw up a timetable with a view to determining the question without delay and to give such directions as it considers appropriate, and under rule 12.12 of the Family Procedure Rules 2010, which carries the court's general case management powers in children proceedings. Where the court wants to know whether an arrangement is actually being kept to, s.11H allows it to direct a Cafcass officer to monitor compliance and report, for a period which may not exceed twelve months.

The order in which the court works through all this is worth stating plainly, because parents often argue the last question first. Is the further evidence necessary to assist the court to resolve the proceedings justly (Children and Families Act 2014 s.13(6))? If it is obtained, what does it show? What harm has the child suffered or is at risk of suffering (Children Act 1989 s.1(3)(e))? Can that risk be managed by directions and conditions under s.11(7), or can it not? Only then does the presumption in s.1(2A) do any work, and only then does the court ask under s.1(5) whether an order is better for the child than no order at all. Because a sample, a report and a further hearing all have to be fitted into that timetable, a phased return is measured in months rather than weeks, and a parent should plan on that basis.

We assisted the parent whose time with the child had stopped following the allegation.

The outcome

The orders open to a court in a matter of this kind are: a child arrangements order under Children Act 1989 s.8 regulating with whom and when the child is to live, spend time or otherwise have contact; directions and conditions attached to that order under s.11(7), including a staged schedule, conditions to be complied with by a named person, an order limited to a specified period, and a review; an arrangement for indirect involvement only, which s.1(2B) treats as involvement for the purposes of the presumption in s.1(2A); an activity direction under s.11A, subject to the exclusion of medical examination, assessment or treatment in s.11A(6); a direction under s.11H that a Cafcass officer monitor compliance for a period not exceeding twelve months; permission for expert evidence under Children and Families Act 2014 s.13, or a refusal of it where the court is not satisfied the evidence is necessary under s.13(6); and, under Children Act 1989 s.1(5), no order at all.

Which of these a court chooses is governed by s.1(1), the welfare checklist in s.1(3) and s.1(5). It is not governed by how forcefully either parent puts their case.

The court made a child arrangements order, with directions for the evidence needed to resolve the issues and arrangements for the child’s relationship with the parent to be reviewed as the case progressed.

Outcomes of this kind turn entirely on the evidence in the individual case. Nothing here is a prediction or a promise about any other case.

What to take from this

• Testing is expert evidence. Nobody may instruct an expert, or put expert evidence before the court, in children proceedings without permission - Children and Families Act 2014 s.13(1) and s.13(5) - and evidence obtained without it is inadmissible unless the court rules otherwise under s.13(2).
• Permission is given only if the court is satisfied the evidence is necessary to assist it to resolve the proceedings justly, weighing the child's welfare, the delay and the cost. Children and Families Act 2014 s.13(6) and s.13(7).
• Ask by the first hearing, not later. Family Procedure Rules 2010 rule 25.6 requires the permission application in private law proceedings to be made by the first hearing dispute resolution appointment, and rule 25.7 requires the questions the expert must answer to be set out in the application itself.
• Expect a single joint expert rather than one of your own. Family Procedure Rules 2010 rule 25.11, and Practice Direction 25C, which says expert evidence in children proceedings should wherever possible be obtained from a single joint expert instructed by both or all the parties.
• The court cannot make an adult be tested. Children Act 1989 s.11A(6) prevents an activity direction from requiring a person to undergo medical or psychiatric examination, assessment or treatment, so testing depends on agreement - and where it is not given, the court decides on the evidence it has.
• A phased return is built out of Children Act 1989 s.11(7), which lets a child arrangements order carry directions about how it is to be carried into effect, impose conditions on named people, run for a specified period and include supplemental provision. Section 11H lets the court have compliance monitored for up to twelve months.
• Delay is not neutral while an allegation is unresolved. Children Act 1989 s.1(2) treats delay as likely to prejudice a child's welfare, and s.1(2B) means indirect involvement can keep a relationship alive in the meantime.