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While many adults drink alcohol responsibly, unfortunately there is a significant percentage of the adult population in England that misuse alcohol.  Government statistics for 2020 show that over half a million adults in England were admitted to hospital, primarily due to excessive alcohol consumption.  The misuse of alcohol and substance misuse is a significant factor in a large proportion of cases where children are removed from the care of their parents.

When misuse of alcohol is a factor in family breakdown it can be a particular concern when there are children and arrangements need to be agreed for their residence and contact with a separating parent. It is not uncommon for someone with an alcohol problem to deny any problem exists, or to minimise the extent of any dependency especially if they fear they may not get to see their children.  Meanwhile the other parent with the day to day care of the children may be concerned and fret over the safety of their children in their former partner’s care and also as to what might be the consequences of the involvement of the local authority’s child protection department if contact proceeds when the children may be at risk.

When courts examine child arrangements, the focus is not solely on a parent’s alcohol misuse but on the potential risks it poses to the children. Parents struggling with alcohol misuse should ideally seek professional help. In cases involving child protection or private family proceedings, courts will consider whether a parent is taking appropriate actions in the best interest of their children. Being proactive in obtaining help and implementing necessary safeguards are crucial factors courts consider in these situations.

Recognising genuine risks

When alcohol misuse is denied, it also tends to increase the acrimony between parents.  Often the concerned parent wants the other parent to have a good relationship with their child but is distressed about the potential risks this poses.

Commonly the biggest risk arises from a parent driving under the influence of alcohol with the child as passenger.  However, if a parent misuses alcohol or any other substance while caring for a child, there can be other negative impacts on children including potential neglect and seeing a parent under the influence of alcohol making a child feeling frightened.

It is important that any concern raised is genuine.  To establish whether it is or not the parent who is suspected of alcohol abuse can be required to undertake tests. A false accusation, made in the hope of preventing one parent seeing their children, may backfire and in an extreme case could even result in a court finding the accuser as ‘implacably hostile’ to contact or alienating the children from the parent from whom they are separated which can have an impact on who the children live with.

The use of alcohol testing

If your former partner does not accept that they have a problem, then you can request that they undergo alcohol testing.  You can try and agree this privately between yourselves, or you can ask a court to order an alcohol test as part of an application for the court to look at your children’s living arrangements.  The court cannot force your former partner to undergo testing however if they refuse to undertake such testing the court may think they have something to hide and the judge can draw a negative inference from their refusal which may impact their case and options to see their children.

The testing for alcohol misuse can be carried out in several ways:

• a urine test shows up recent alcohol consumption only and may not tell you a lot if your former partner is a weekend binge drinker or has abstained from alcohol knowing their testing is coming up, but it can be used in combination with other testing; and
• a blood test can show if there has been damage caused to the liver because of excessive alcohol consumption over an extended period of time and shows as certain markers in the blood that will be elevated if there has been excessive alcohol consumption – phosphatidylethanol (PEth) is the most accurate blood marker as it can only be produced if alcohol has been consumed.

Although usually more expensive, it is also possible to obtain nail clipping analysis or hair strand testing:

• hair analysis can show the results of alcohol consumption for up to 12 months although there can be issues which impact upon the accuracy of hair strand testing such as hair dye, hairspray, wax and gels used, it is not uncommon for people to completely shave their hair in the hope of avoiding this test, and
• nail analysis is usually only used if someone does not have sufficient body hair for a hair analysis, as this can provide an analysis for just six months.

Ensuring a child’s best interests

If significant concerns are raised about a parent’s alcohol consumption, then the court may order a CAFCASS report, or another expert report such as a physiologist.  CAFCASS represent children’s interests and independently advise the court about what is safe and what is in a child’s best interests.

If alcohol is shown to be an issue then the judge may decide to allow that parent to see their children only on conditions that may be included in a court order that certain safeguards remain in place.  These safeguards could include, amongst other things:

• another responsible adult being present to ensure the children are safe;
• the amount of time spent together being limited to times of the week where alcohol is less likely to be a risk factor, such as avoiding weekend contact if that is the parents drinking pattern;
• allowing indirect contact time only to be spent via phone or video calls;
• allowing time to be spent in a public venue where alcohol is less likely to be consumed;
• have a responsible adult visually assess at the start of contact that the parent is sober; or
• arranging for a responsible adult to transport children to and from contact to minimise the risk of the parent driving the children while under the influence of alcohol; oralcohol testing immediately before the childrens contact is due to take place.

How we can help

If you are concerned that alcohol misuse is a problem for your former partner, and that this may impact on their relationship with their children, or you have been accused or have issues with alcohol misuse yourself, then it is important that legal advice is obtained in advance of any proceedings concerning your children both to minimise the risk of harm to the children or the involvement of the local authority.

Contact us

For further advice please contact one of our Family Law experts.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.