Drug and Alcohol Testing in Children Court Cases
It is not uncommon for one parent to allege that the other parent has a drug or alcohol issue when a couple split up. Why? There can be a whole variety of reasons and in this blog we look at allegations of drug or alcohol abuse and testing for substance abuse in children court proceedings.
We are Cheshire Children Solicitors
If you need help with sorting out child custody and contact or are concerned about substance abuse allegations in children court proceedings and need advice on a child arrangements order then contact Holmes Chapel based Evolve Family Law, contact us online.
Substance abuse allegations in children proceedings
There are many reasons why substance abuse allegations can be made after a separation or divorce. Sometimes the drug or alcohol consumption is mentioned in passing as ‘no big deal’ with an acknowledgement that the parent is great with the kids. In other families there is a genuine concern for the children as the alcohol or drug consumption has gone beyond recreational use and was the reason behind the relationship breakdown. Worryingly, sometimes allegations are made that are untrue as a means to stop contact or the alcohol or drug use is blown out of all proportion to the reality as a justification to stop the children seeing the other parent.
If you are worried about your children because of a parent’s substance abuse or if you are facing accusations of drug or alcohol abuse it is vital that you get early legal advice from children law solicitors so that you know what your best options are.
What is parental substance misuse?
Parental substance misuse is, for clear reasons, taken very seriously and if you are unsure what the court considers as substance misuse, read one of our recent blogs what is parental substance misuse.
The issue of drug and alcohol testing in divorce and children cases has hit the headlines with reports in the Daily Mail that James Stunt allegedly provided false samples for drug testing during his divorce from Petra Ecclestone.
If one parent uses drugs or alcohol it can have an impact on their ability to look after their children or impact on how much time they should spend with the children. Many parents, despite the trauma of a split, are able to sort out child care and contact arrangements with the help of a Cheshire children law solicitor, mediator or therapist, working around the alcohol or drug issues.
If a mum of teenage boys knows her boys want to see their dad she can minimise the risks posed by her ex and his alcohol issues by insisting that the children aren’t driven in a car by their father and that a relative stays in dad’s house when the boys stay over. In a different scenario, with a toddler, the risks and issues associated with substance misuse may be very different.
Where drug or alcohol abuse is denied or parents can’t reach agreement on the impact, if any, the drug / alcohol use should have on the child care arrangements the parents may have to ask the court to decide how much time the children should spend with each parent and under what conditions.
Children court applications and alcohol and drug testing
A parent can ask the court to order that drug or alcohol testing is undertaken by the other parent before contact with a child takes place. The parent who is alleged to have a drug or alcohol issue can refuse to be tested and the court can’t force him or her to undergo a test. Obviously questions may be asked about the reason for the refusal and sometimes inferences can be drawn.
The court is normally robust in looking behind the reasons why testing is being sought. Background information is needed, for example if a parent alleges that the alcohol misuse by the other parent is longstanding but before the split up both parents shared the care of the children. The question could be raised about why the alcohol or drug use is now a welfare concern for the children. If only occasional drug use is alleged a court may want to question if the usage impacts on the children before ordering tests, for example if a parent has always limited recreational drug usage to times that the children aren’t being looked after by them.
Court approach to drug and alcohol testing
The court in children law proceedings is focused on looking at what is in the best interests of a child and therefore the court is only concerned with allegations of drug or alcohol use if they impact on the parent’s ability to look after or spend time with the children.
If there are serious concerns about a child’s welfare, either before or after drug or alcohol testing, the court can ask CAFCASS or Social Services to prepare a report. The court can also order expert reports such as psychological assessments or can make referrals for parents to attend parenting courses. There are lots of reasons why these referrals are made; sometimes to help family dynamics where there is a parent with an alcohol or drug issues or, in other extremes, where false allegations of drug usage have been made and the family need help with parental alienation issues.
How are drug tests undertaken in children court cases?
If a court orders testing and a parent agrees to the testing then it can take a variety of forms: hair, blood, urine. If you read the Daily Mail article you might think it is easy for parents to falsify reports but if a test is arranged privately through Cheshire children law solicitors or the court then samples are obtained in the presence of a medical professional and after formal identification of the person providing the sample.
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What to do next?
If any parent finds that they are in a dilemma about whether their children should see their other parent as a result of concerns about drug or alcohol use then the important thing is to speak to a Cheshire children law solicitor to discuss the issues and explore the options for contact to take place in a safe environment.
If you are a parent facing a battle to see your children because of allegations of alcohol or drug use it is equally important to get legal advice from a children law solicitor. That is because the longer you don’t see the children for then the tougher it can become to get to see them again and resolve the family dynamics that led to the substance abuse allegations.
Whether you are a parent worried about your ex’s drug use or a parent desperate to see the children the important thing to remember is that the court and professionals approach is to do what is in the children’s best interests, and that can include contact if it is best for a child to maintain a relationship with both parents in a safe environment.
Louise Halford
Jul 17, 2018
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6 minute read
What is Parental Substance Misuse?
Parental substance misuse is an extremely serious issue and it is not uncommon for one parent to allege that the other parent has a drug or alcohol issue when a couple splits up. Why? Well sometimes the parental substance misuse, be it drugs or alcohol, is mentioned in passing as ‘no big deal’ with an acknowledgement that the parent is great with the kids. In other families, there is a genuine concern for the children as the parental substance misuse has gone beyond recreational use and was the reason behind the relationship breakdown. Finally, sometimes allegations are made that are untrue as a means to stop contact or the alcohol or drug use is blown out of all proportion to the reality as a justification to stop the children seeing the other parent.
The issue of drug and alcohol testing in divorce and children cases has hit the headlines with reports in the Daily Mail that James Stunt allegedly provided false samples for drug testing during his divorce from Petra Ecclestone in an attempt to disprove accusations of parental substance misuse.
If one parent uses drugs or alcohol it can have an impact on their ability to look after their children or impact on how much time they should spend with the children. Many parents, despite the trauma of a split, are able to sort out child care and contact arrangements with the help of a solicitor, mediator or therapist, working around the parental substance misuse.
As an example of parental substance misuse, if a mum of teenage boys knows her boys want to see their dad, she can minimise the risks posed by her ex and his alcohol issues by insisting that the children aren’t driven in a car by their father and that a relative stays in Dad’s house when the boys stay over. In a different scenario with a toddler, the risks and issues may be very different.
Where drug or alcohol abuse is denied or parents can't reach agreement on the impact, if any, the drug / alcohol use should have on the child care arrangements the parents may have to ask the Court to decide how much time the children should spend with each parent and under what conditions.
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Many parents are wary about raising parental substance abuse allegations in Court proceedings or alternatively parents are worried that allegations of alcohol or drug usage will automatically be believed and will result in them losing all contact with their child. That is why it is important to get early professional advice on your options. As an example the Court may question why a parent allowed lots of unsupervised contact if there are very serious allegations of parental substance abuse or why, in a different scenario, a parent hasn’t seen their child for months, making the parent child relationship harder to repair. Sometimes it pays to take things slow and at other times it is vital that a parent pushes for contact notwithstanding the allegations of parental substance misuse.
For legal help with children law and child care arrangements where there are allegations of drug or alcohol misuse please contact us.
Louise Halford
Jul 06, 2018
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3 minute read
Grandparents Rights Reform Proposed
Good news for grandparents – children law reform proposed – to give grandparents a right to apply to Court to see their grandchild.
As a children lawyer I smile when I see a grandparent out with a grandchild. Why? I’m often asked for advice on grandparents ‘rights’ and it is therefore great to see children enjoying time with grandparents.
Sadly grandparent contact can stop if:
There is a family fallout with a son or daughter-in-law;
Parents separate and the parent who is looking after the children thinks that a grandparent took sides during the divorce or wants to exert control;
The death of a child and the remarriage of a son or daughter in law;
Family moving away or going to live abroad.
All too often when families split up grandparents can be forgotten, despite providing support such as:
Continuity and stability in a grandchild’s changing post-divorce world;
Childcare if both parents have to go back to work after a marriage breakdown;
Family historian;
A fun relative and role model.
The current grandparent and child law
Under current children law, grandparents don’t have an automatic right to apply to Court to see their grandchildren. Grandparents have to undergo a two stage process:
Ask the Court for permission to be able to apply for a Court Child Arrangements Order.
If they get permission then apply for an order setting out the time a grandchild should spend with their grandparents. The Order can provide for regular contact or just cover a one off special holiday or the grandchild being able to come to an 80th birthday party or golden wedding celebration.
When a grandparent asks for Court permission to apply for a Child Arrangements Order the Court considers:
The connection with the child (how close are the grandparents to the grandchild);
The nature of the application for contact;
Whether the application might be potentially harmful to the child's well-being in any way.
Although it is usual for a Court to give permission for a grandparent to apply for a Child Arrangements Order the two stage Court process can be off putting to a grandparent desperate to see their grandchild. Once permission to apply for the Court order is granted the Court then has to decide whether contact is in the child’s best interests.
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The proposed grandparent reform
According to press reports the proposed change to the children law is to do away with the need for grandparents and other close family to have to ask the Court for permission to apply for a Court order to see their grandchild.
https://www.dailymail.co.uk/news/article-5697961/Grandparents-right-grandchildren-parents-split-new-law.html
If the law is changed then grandparents will be treated in exactly the same way as a parent asking for a Court order to see their child. The reform has long been advocated by people’s campaigner and grandmother, Esther Rantzen. If the law is reformed it will make it easier for grandparents to see their grandchildren and grandparents will have the same ‘’rights’’ as parents to apply to stay in touch with their loved ones.
For help with any aspect of children law please contact us
Louise Halford
May 09, 2018
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3 minute read
Surrogacy Reform: Law Commission Review on Surrogacy
Surrogacy reform is on the cards with Law Commission review on surrogacy
There is nothing quite like welcoming a new baby into the world. As a children lawyer I have been privileged to help parents secure Parental Orders after they have had a child through a surrogacy agreement. I therefore know just how stressful the months leading up to the birth of the child are as well as the worry of how quickly a parent can secure a Court order. For many parents they couldn’t relax and enjoy their baby until all the legalities were sorted out.
Surrogacy laws were first introduced about 30 years ago. Society and the medical options available to couples have changed over the years. Many parents, medics and legal professionals have concluded that the current surrogacy legislation, once thought to be ground breaking, is no longer ‘’ fit for purpose’’ and doesn’t meet the needs of the surrogate, the parents and, most importantly, the baby.
Under current English law a surrogate mother is the legal mother of the child even if she has no genetic link to the baby. A Parental Order, in favour of the parents, can only be applied for after the baby has been born and various conditions have to be met, namely:
The application must be made within six months of the child’s birth;
The surrogate mother must fully consent to the Parental Order and must understand that she will be giving up parental rights;
No payment should have been made to the surrogate mother save for necessary reasonable expenses. The Court can give retrospective approval to payments over and above reasonable expenses;
There must be a genetic connection between the child and at least one applicant for the Parental Order;
At the time of the application and the making of the order the child’s home must be with the person applying for the order;
Either or both applicants must be domiciled in the UK
There is a concern amongst professionals that current UK surrogacy laws and conditions encourages the use of international surrogates where, in some countries, there is less regulation and protection for all participants.
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The Law Commission reforms will consider changes to the law relating to:
the legal parentage of the baby;
the regulation of surrogacy including payments;
the rights of the child to obtain information about their origin and the surrogacy arrangement;
the rights of the surrogate, parents and child and how best to avoid exploitation in the surrogacy process.
The Commission says that a report on proposed changes in the law will be available within a year. There will then need to be an impetus to get any recommended changes in current surrogacy laws into new legislation so that all involved in surrogacy arrangements feel that the law is working to protect them and the child.
For help on any aspect of children law please contact us
Louise Halford
May 08, 2018
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3 minute read
The Law on Male Baby Circumcision
Recently there has been a lot of discussion on whether male infant circumcision should be banned unless the procedure is carried out on medical grounds.
Why the debate? It flows from the media discussions and press coverage on the banned female genital mutilation and the news that the Icelandic government is proposing legislation to outlaw male circumcision for anything other than non-medical reasons. Now anti-circumcision advocates are asking the British Medical Association to add support to their call for a change in UK law to stop male circumcision unless it is carried out on medical grounds.
Male infant circumcision is an important passage for those of the Jewish or Islamic faiths but according to a recent You-Gov poll 62 per cent of people in Britain support a new law banning infant circumcision.
Under current UK law and BMA guidelines both parents must give informed consent for what is termed non-therapeutic or ritual circumcision. If parents can't agree on whether or not their child should be circumcised a doctor should not carry out the procedure without a family law Court order. In some situations children are old enough to express their views and, if so, their wishes must be taken into account. When parents are separated or divorced it is sometimes impossible to reach a consensus view on what is best for their child.
The Court application for circumcision
So, what happens if parents can't reach agreement on whether their child is circumcised or not? The Court procedure is exactly the same for a situation where parents can't agree on whether their child should have any other type of operation or if parents can't agree on the school their child should attend or the religion their child should practise.
Either parent can apply to the family Court for what is known as a ‘’specific issue order’’ for a judge to decide on whether the child should be circumcised, undergo any other medical procedure or determine the choice of school or religion.
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How does a judge decide what is best for a child?
The judge has to consider what is in the child’s best interests. In a case called Re S a judge decided that it was the mother’s need to portray herself as a religious person that was behind her desire to have her 8 year old son circumcised , against the father’s wishes, and the Court application was refused. The rationale behind the refusal was that it is the child’s best interests and needs that are paramount, not the parent’s needs. Each Court decision will turn on the individual family circumstances and, in many situations, a judge is likely to rule in favour of circumcision after taking into account a range of welfare factors.
If there is a change in the law regarding male circumcision or there is a ground swell of public opinion away from male circumcision for non-medical reasons judges may be less ready to determine that the procedure is in the best interests of an infant child.
For help with any aspect of children law please contact us
Louise Halford
Apr 26, 2018
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3 minute read
Risks of Taking Children to Live Abroad After Separation
For one mother there was a happy ending, all thanks to the Court of Appeal. The appeal judges decided to reverse an earlier Court’s decision that said two children should be returned to the USA whether or not their mother could get a visa to re-enter the States.
The family Court appeal made all the difference.
The family Court appeal centred on whether two children, age 5 and 3, should return to their country of birth, the USA, at their father’s request under a Hague Convention Court application. The mother had taken the children to England, the country of her birth, without a USA Court order or the father’s agreement, after marriage difficulties made her conclude that she and the children should live in the UK. If the mother had realised the complexity of the immigration issues facing the father and herself she may well have thought twice and not taken the children out of the USA.
For the children immigration wasn’t a problem as they had dual citizenship, having been born in the States and having British citizenship through their mother. The children’s Pakistani father was classified as an illegal over-stayer in the USA and if he decided to come to the UK to challenge Court rulings or to see the children he faced not being able to get back into the States, a country that he had called home from the age of 12. For the mother, as a British citizen who had entered the USA on a temporary visa and married the father in the States, it was unlikely she would be able to get a visa to go back to the States.
The situation of both parents was stark. If the father ‘won’ his Hague Convention application and the Court ordered the return of the children to the States to enable the USA Court to decide on what was in the children’s long term interests, then the mother was unlikely to get a visa to go back with them. The High Court ruled in the father’s favour and the mother felt she had no alternative other than to appeal.
The Court of Appeal then faced the dilemma of deciding if the children would be exposed to a grave risk of harm if returned to the USA under the Hague Convention. The mother ran this argument as there are limited defences available to try and stop a Hague Convention ordered return. The Appeal Court concluded that the children could not be removed from their primary carer despite the fact that the mother had created the situation that the family found itself in and even though the Appeal Court decision made contact between father and children problematic given his precarious immigration status in the USA.
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The family circumstances may appear unusual but as a child abduction solicitor I often have to investigate the immigration issues that arise after a child has been taken out of or has entered the UK and present the best possible evidence on immigration status and attachment. It is vital to do so as immigration status can be the key to the Court decision, as it was in this case as the children’s attachment to their mother as their primary carer, meant they would be at risk of harm in returning to the States without her. Would you risk it? The High Court decision, reversed by the Court of Appeal, shows just what a risk was taken. Sadly though there are no winners or losers in this family situation as the father now faces the same immigration dilemmas and difficulties in seeing his children.
For help with child abduction or children law please contact us
Louise Halford
Apr 05, 2018
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4 minute read
The Effect of Child Relocation on the Family
In the immediate aftermath of a parental separation it can feel devastating to not be there every night to read a bedtime story to your child or, if they are older, to help them with their homework. Imagine how much more difficult it is to come to terms with a separation if one parent announces their decision to move abroad with a child. It’s highly unlikely that the parent left in the UK will be able to continue to see the child each week, take the child to ballet or football practice or to be there as a taxi service after the first school dance.
I may paint a vivid picture but that is the reality for the parents I represent in child relocation applications. As a specialist children and child abduction lawyer I am in the privileged position of meeting parents and getting a snapshot of their family lives. That’s necessary to help me gain a real appreciation of why a parent is desperate to move abroad with their child or how not only a parent but the child’s extended family will be effected if a child does move abroad.
What happens if a parent objects to a move abroad?
If one parent wants to move abroad and the other parent objects there are a number of alternatives:
The parent can still move abroad – they just can't take their child with them unless they get the other parent’s agreement or Court permission;
The parent could take the child abroad without agreement or Court order – that may amount to a criminal offence under child abduction law and ultimately could lead to the child’s removal from the parent;
The parent could apply to Court for permission to take the child abroad to live or the other parent could apply to Court for an order prohibiting the child’s removal from the UK.
Even after Court proceedings have been started it can sometimes be possible to reach an agreement over whether a child should move abroad. It is my job when representing parents facing an application for a child to live in a foreign country to weigh up the chance that the Court application will be successful, and if the prospects are high, to negotiate the best contact arrangements.
How does a Court decide my child’s future?
Whether the Court is deciding on whether your child should move to France or Bermuda or if the child should live with you or their other parent the Court has to look at what the judge thinks is in the child’s best interests taking into account a set of criteria known as the ‘’welfare checklist’’.
When a judge makes the decision if a child should relocate abroad the child’s interests aren’t paramount as the Court has to consider the effect of granting or refusing the application on both parents. That is why it is so important for a solicitor to know all about family life and not only what the child will gain and lose by a move abroad but how the Court decision will impact on each parent.
A parent refused permission to take their child to their country of origin and where all their extended family still live may find the Court refusal more difficult to accept than a parent who wants to move for lifestyle choices or because they have found a new job based abroad.
No two parents are the same and even if the parents of two children in different families have the same amount of contact with their child each week the emotional effect of a move on the parent left behind can be very different; one parent may quickly adapt to travel abroad to see the child and the other may become depressed and unable to come to terms with the Court decision.
Although the Court is focused on the child’s needs as a lawyer it is my job to not only to look at the Court criteria in relation to the child but also the impact of a decision on the parent I am representing. That’s because if either parent is devastated by the Court decision and can't come to terms with the ruling then it is bound to have a negative impact on the child. That is something that a Court needs to consider when deciding whether it is in a child’s best interests to move out of the UK.
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What next?
If you are a parent contemplating a move abroad with a child or a parent facing a potential Court application then the best option is to get legal advice. The sooner a parent gets specialist advice on the pros and cons of making or opposing a Court application and what steps they and their lawyer will need to do to successfully get permission or to oppose an application the better. It is like many things in life: tomorrow belongs to those who prepare for it today.
For help with the process of taking a child abroad to live or for help in opposing an application please contact us
Louise Halford
Mar 26, 2018
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5 minute read
Gambling Income & Child Support
The Child Maintenance Service, the government organisation tasked with assessing and administering the statutory child support regime, frequently gets bad press for its bureaucracy and the intricacy of its rules and regulations surrounding the payment and enforcement of child support.
A recent Court decision has hit the headlines because the Court of Appeal has said that a father’s sole source of income can't be classed as earnings upon which to calculate how much child support should be paid. The first two child support tribunals took the approach that if someone lives off an income then it can be viewed as ‘’income’’ but on an appeal by the father and by the Secretary of State for Work and Pensions the Court of Appeal disagreed.
You may question when income isn’t ‘’income’’ but the Court of Appeal decided that income for child support purposes should be considered in light of rulings on what is classed as income for tax purposes.
In this family, the father derived his entire income from professional gambling, namely bets on the horses and cards. Under income tax rules and regulations earnings from gambling are not treated as self-employed taxable income even if they are a person’s only source of financial support. The Court ruled that the definition of earnings to assess liability for child support is the same as assessing eligibility for welfare benefits or liability to pay income tax.
The Court ruling may make logical sense to the Department of Work and Pensions but where does it leave the parent who requires child support for their children when the other parent is earning a living from gambling or another non-taxed source?
Critics have long argued that assessing child support using a statutory rigid scheme leads to these types of anomalies and that these situations were avoided when the Court had the power to order child maintenance based on what a judge thought was the right amount to meet the child’s needs.
With any process there are always winners and losers and for some the Child Maintenance Service has simplified the child support process and made the collection of child support more straightforward, taking the worry out of relying on an ex-partner for child maintenance. For others, particularly where their former partner or spouse is self-employed or lives a lifestyle that doesn’t seem consistent with their taxable income the child support regime and government agency has made life more complicated than relying on the old Court system for assessing child support.
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You may think that there are very few professional gamblers so the Court of Appeal decision won't affect many children. However the rules do apply to other scenarios such as the investor living off capital gains rather than dividend income or the more common situation of a self-employed person’s reported income not appearing to reflect the reality of their daily expenditure.
As a children lawyer this case emphasises the importance of getting expert legal advice when parents separate and to not sort out financial matters on a piecemeal basis. Often a husband or wife will want to agree on a split of the proceeds of sale of their house so that they can each rehouse themselves leaving issues such as spousal maintenance or child support to be agreed later on. That can lead one parent as the financial winner and the other as the financial loser if, as a result of the child support rules and regulations, the child support payments are assessed at a lot lower figure than was anticipated when committing to the new house. As frustrating as it is to wait and sort out all financial matters together the gamble of dealing with child support in isolation just isn’t worth it.
For joined up advice on children law and child support please call me on +44 (0) 1477 464020 or email me at louise@evolvefamilylaw.co.uk
Louise Halford
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4 minute read
Evolve Family Law open New office In Prestwich, Manchester
Following our success at our Holmes Chapel Offices, Evolve Family Law have opened offices in Prestwich, Manchester. This is an important decision for both our clients and our team as it allows us to provide face to face advice and services to both South, Central and North Manchester. You can now meet with us by appointment at Evolve Family Law Ltd, Suite 8, 1 Chapel Street, Prestwich, Manchester. M25 1AE
Call 0161 466 0332 or contact us via our Contact Form.
Louise Halford
Mar 15, 2018
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1 minute read
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