The Family Court must consider your children’s welfare as its first consideration when deciding who they live with and the sort of contact they might have with either parent. It is not there to police your life and order you to become teetotal, so if you enjoy a drink now and again without it having any adverse impact on your or your children’s lives then alcohol will not be a relevant factor for the court. However, if your relationship with alcohol has an impact on your ability to look after your children then it can have a significant impact on the quality of contact that the court will be prepared to sanction.
The powers that the court has are very broad. For example, they can order that all contact with one parent is supervised, or, in more extreme circumstances, they can suspend contact with one parent and require them to demonstrate that they have taken steps to address their relationship with alcohol before it can restart. Any orders that the court makes will be governed by the “welfare checklist”.
What is the “welfare checklist”?
The court must take a number of factors into account when making decisions that affect children. This is known as the “welfare checklist” and is found at section 1 of the Children Act 1989. They key elements that they will look at are as follows:
1 Welfare of the child.
(1) When a court determines any question with respect to—
(a) the upbringing of a child; or
(b) the administration of a child’s property or the application of any income arising from it, the child’s welfare shall be the court’s paramount consideration.………………….
(3) In the circumstances mentioned in subsection (4), a court shall have regard in particular to—
(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
(b) his physical, emotional and educational needs;
(c) the likely effect on him of any change in his circumstances;
(d) his age, sex, background and any characteristics of his which the court considers relevant;
(e) any harm which he has suffered or is at risk of suffering;
(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
(g) the range of powers available to the court under this Act in the proceedings in question
(4) The circumstances are that—
(a) the court is considering whether to make, vary or discharge a section 8 order, and the making, variation or discharge of the order is opposed by any party to the proceedings;
It is clear that significant alcohol consumption is relevant to several of these factors, such as the physical and emotional needs of the child, and any harm that they are at risk of suffering. For example, if you drive when under the influence of alcohol then the court will be likely to take the view that you could be a risk to your children and order that the children are not to be in any car that is driven by you. If you are regularly under the influence of alcohol then the court may feel that you are unable to keep them safe and may therefore order that you are not to have unsupervised contact. The younger your children are, the more impact it is likely to have.
My ex-partner is raising alcohol as a concern, but I don’t think I have an alcohol problem.
If you do not agree that your alcohol consumption is a problem, then the court can make orders to get to the bottom of the issue. It will try to avoid delaying proceedings, so if you have a conviction for drink driving or any other criminal offence that involved alcohol, then it is likely to conclude that alcohol is an issue, and it will be up to you to show that it is no longer of concern (see below).
If there is no independent evidence regarding your alcohol consumption, then the court may order that you undertake alcohol testing to see whether your alcohol intake is problematic.
How does alcohol testing work?
There are several ways that you can test for chronic alcohol use. The most obvious are breathalysers and urine samples, but these only show how much you have in your bloodstream at the time rather than providing evidence of your general alcohol consumption. You can also have a blood test done to show your liver function, but this will only show up as an issue if you have significantly damaged your liver. The court favours hair strand testing, as it can provide a more accurate picture of your alcohol use over a period of months.
These tests are conducted by an independent laboratory and require you to provide samples of your head hair. These are then tested for metabolites (chemicals that your body produces when it processes alcohol). Head hair samples can be segmented and show how your alcohol consumption has changed over a period of time. While they can be affected by bleach or other hair colour treatments, they are generally regarded as the most accurate method of testing by the court.
If the court orders you to undertake hair strand testing, then do not shave your hair off. This will almost definitely lead to the court inferring that your result would have been very concerning which could be worse than the result you were seeking to avoid.
I only drink occasionally. Will this show on the test?
The tests are for chronic alcohol consumption. There is a big difference between the World health Organisation’s definition of chronic alcohol consumption and the NHS guidelines of 14 units of alcohol per week. While everyone processes alcohol differently, the consensus is that you will not have a positive test if you are drinking within NHS guidelines.
What will happen if the court thinks alcohol is an issue?
If you have a positive hair strand test, or there is other evidence that you regularly abuse alcohol then the court may order CAFCASS (Children and Family Court Advisory and Support Service) to prepare a welfare report to examine the potential impact of your alcohol consumption on your relationship with your children, and to make appropriate recommendations regarding contact with them. CAFCASS are independent social workers who advise the court on what is safe for children and in their best interests.
If this is ordered then the CAFCASS officer will talk to you, your ex-partner and (depending on their ages) your children as well as considering any independent evidence (such as your hair strand test results) and prepare a report which will recommend what orders the court should make. This report will address all the factors on the welfare checklist.
The court does not have to follow the recommendations of CAFCASS, but they have to provide reasons if they choose to take a different course. Therefore, while it is possible that they will depart from recommendations made, it is far more common that a court will follow them. The rationale for this is set out in the case of re W, when the court remarked:
‘Judges are hugely dependent upon the contribution that can be made by the welfare officer, who has the opportunity to visit the home and to see the grown-ups and the children in much less artificial circumstances than the judge can ever do’.
The job of CAFCASS is to put the children’s welfare first, so their recommendations will probably have a “safety first” approach. Therefore, if there is evidence that you have an issue with alcohol, you will need to address this at the earliest opportunity.
How can I prove that alcohol is no longer a concern?
You can undertake further hair strand testing after a period of a further 3 months to demonstrate that you have your drinking under control, but this will only show that you have stopped drinking for now. Depending on the nature of your problem, you may have to go a little further than that if you want the court to trust that this is no longer an issue. It is also wise to seek independent treatment from services such as Alcoholics Anonymous who are well used to providing letters to the court in support of your involvement in their programme. Be aware that they will provide independent verification of your engagement with their programme as opposed to writing what you ask them to, so you need to be prepared to engage with them if you are considering taking this step as it is not a “tick box” exercise.
The best way to remove restrictions to your contact is to engage with the sort of professional support that the court can trust. There are a number of different agencies that can offer you this. You should obtain legal advice from a Solicitor who will be able to talk through your individual circumstances and will know what services are available to you locally.
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