If there is an allegation of substance abuse in family proceedings, the court may wish to make an order for drug or alcohol testing to help determine the facts. These types of order are most commonly used during child arrangement applications, with analysis becoming a crucial part of the evidential picture. This helps the court decide what is in the best interests of the child and which parent can offer them a safe, stable home environment. It will also determine how contact will take place.
If there is an allegation of substance abuse in family proceedings, the court may wish to make an order for drug or alcohol testing to help determine the facts. These types of order are most commonly used during child arrangement applications, with analysis becoming a crucial part of the evidential picture. This helps the court decide what is in the best interests of the child and which parent can offer them a safe, stable home environment. It will also determine how contact will take place.
If you have a family law issue and you require legal advice to understand your options, contact specialist family law solicitor Liza Gatrell. Vicki is a trusted and highly capable family lawyer and divorce solicitor and a Partner at the specialist family law firm, Stowe Family Law.
Why is drug or alcohol testing used in family proceedings?
Drug and/or alcohol testing is predominately used in children cases in order to protect the child from exposure to individuals abusing such substances. It also helps the court ensure they safeguard children by assessing the environment and living conditions they are exposed to when being looked after.
Several different types of test are available including hair drug testing, hair alcohol testing, blood alcohol testing, nail clippings, urine, and saliva. Family courts generally use hair drug tests because it is easier to detect a substance for up to 12 months. The hair samples can also be divided into smaller batches to produce month-by-month analysis, which will provide a more detailed pattern of drug or alcohol intake. Nail clippings are used in cases where there is insufficient hair available. This type of test can detect substance abuse for up to 6 months.
Saliva testing is a fast method, producing immediate results which can detect recent drug use from 30 to 60 minutes after ingestion up to 2 days afterwards . Urine tests are rarely used as they can only provide detection for up to a few days, depending on the type of substance taken. These forms of instant testing can be made a prerequisite to a parent collecting a child for contact on the basis that it will only go ahead if the test results are confirmed by the sample taker to be clear. Often, instant testing requirements are linked to supervised contact visits, with third parties such as a professional contact supervisor carrying out the testing to protect against the risk of consuming drugs or alcohol before the contact session takes place.
The decision on which test the court will choose depends on the substance being tested for and the detection time frame.
What happens during the drug test?
Drug testing must be carried out according to specific instructions as ordered by the court. The tests must also be conducted by recognised testing services to ensure the reliability of the evidence. These instructions are referred to as the “chain of custody” and mean that samples must be collected under supervised observation to prevent and eliminate any form of tampering or adulteration. There is also a legal requirement that samples remain in the custody of those who have a responsibility to ensure the authenticity of the results.
The process of hair strand testing begins with a professional taking a hair sample of around 5mm thickness from the head or body. It is then deposited into a sealed, tamper-proof envelope. The amount of hair needed for the sample depends on the time frame of detection required. The window in which alcohol can be detected from a hair sample is from 7 days to 6 months, whereas for drugs it is from 7 days as long as this can be shown by the hair length of the individual in question.
What are the implications of a positive drug or alcohol result?
A positive drug or alcohol test does not necessarily mean losing custody or contact of your child. Family courts are keen on keeping families together, so they have the love and support of both parents. However, the court will act with caution and consider the factors contained in the welfare checklist. This list helps the judge, and any other agencies or organisations involved in the proceedings, to answer questions essential to the upbringing and wellbeing of the child.
The consequences of a positive drug or alcohol test result will also depend on the type and extent of the drug or alcohol consumption shown by the test results, the age of the child, the extent of the safeguarding risks identified, and the steps that can be taken to reduce those risks. Outcomes may involve the parent committing to a sobriety programme or seeking some other form of support such as therapy, and their time with the child being supervised which may include instant testing requirements.
Can a parent refuse to take a drug or alcohol test?
If a court orders drug or alcohol testing and the individual refuses to undergo the tests, the court cannot force them against their will. In such a case of refusal, the court will look at any expert reports, or witness statements that are already in its possession, and may draw inferences against the parent based on the evidence before it. It is generally advisable to take the test as ordered by the court instead of blatantly refusing, because there is a real risk of losing contact or custody of the child.
Can CAFCASS order a drug test in family proceedings?
CAFCASS cannot order a drug or alcohol test in family proceedings, but they can recommend to the judge that such testing should be carried out. It is then up to the judge to determine whether this should take place and make an order to that effect.
Who pays for the drug/alcohol test?
Depending on the drug and alcohol testing ordered, it can become expensive. If both parties to the proceedings have legal aid, then the costs will be shared equally between their public funding certificates. If only one party is publicly funded and the other party is representing themselves, for the most part, the funded party’s legal aid will pay the fees. Where neither party is legally aided, the court often orders that the costs be shared, whether or not solicitors are acting on their behalf.
Requesting alcohol or drug testing in family proceedings
In some cases, one parent may have genuine concerns that the other parent’s alcohol or drug use could place a child at risk. Raising those concerns in family proceedings is possible, but it must be done carefully. Allegations alone are rarely enough for the court to order testing.
The parent requesting testing will normally need to demonstrate that the concern is credible and relevant to the child’s welfare. The family court’s guiding principle is the welfare of the child, meaning the court will only authorise testing if it is considered necessary and proportionate. This often requires more than suspicion; there should be some supporting evidence that suggests substance misuse may be occurring. This might include previous admissions, police involvement, safeguarding reports, or behaviour that raises clear welfare concerns.
Where a parent wishes to pursue testing, the issue is usually raised at an early hearing, such as the First Hearing Dispute Resolution Appointment (FHDRA) in private children proceedings. The party requesting testing can ask the court to make directions requiring the other party to provide a sample. The judge will then decide whether testing is justified, taking into account the seriousness of the allegations, the potential impact on the child, and whether other evidence might already provide sufficient clarity.
It is important to understand that the court does not view testing as a routine step. Requests that appear speculative or designed simply to discredit the other parent are unlikely to succeed. Judges are mindful that testing can be intrusive, costly, and time-consuming. As a result, they will often want to see a clear explanation of why the testing is necessary to determine the issues in dispute.
Where testing is ordered, the court will usually specify the type of test required, the laboratory to be used, and the timeframe in which the sample must be provided. These directions ensure the integrity of the evidence and that the results can be relied upon during the proceedings.
Responding to allegations of substance misuse
For a parent who is accused of alcohol or drug misuse, the experience can be stressful and potentially damaging to their case. However, there are several ways to respond constructively.
In many cases, the accused parent may choose to cooperate with testing voluntarily. This can demonstrate openness and a willingness to address concerns directly. Agreeing to testing may also help resolve allegations quickly, particularly where they are unfounded.
Parents should also ensure that any relevant medical information is disclosed. For example, prescribed medications may appear in drug tests, and laboratories must be informed in advance so that the results can be interpreted correctly. Failure to disclose prescriptions could lead to misunderstandings about the results.
If a parent believes that testing is unnecessary or disproportionate, they can challenge the request through their solicitor or directly in court if they represent themselves. The court must ultimately be satisfied that testing is justified. Where there is insufficient evidence supporting the allegations, the judge may refuse to order testing.
It is worth noting that while an individual cannot generally be forced to provide a sample, refusing to cooperate after a court has indicated that testing is appropriate may have consequences. Judges may draw negative inferences from a refusal, meaning the court could assume the refusal is linked to an attempt to conceal substance misuse.
For that reason, parents facing allegations should carefully consider their approach and seek legal advice wherever possible.
What happens if the results are negative?
A negative result can significantly affect the direction of a family case. If the testing indicates that the parent has not been misusing drugs or alcohol, the court may view the allegations as unsubstantiated. This can strengthen the position of the tested parent and may lead the court to move forward with decisions about contact or living arrangements without ongoing concern about substance misuse.
Negative results can also help rebuild trust within the proceedings. For example, if interim restrictions were imposed on contact because of safeguarding concerns, those restrictions may be reconsidered once the results are available.
However, negative results do not automatically end the issue. The court will still consider the broader evidence within the case. Allegations may relate not only to substance use but also to behaviour, parenting capacity, or lifestyle concerns. Testing is simply one piece of the evidential picture.
In some circumstances, the court may even question why the allegation was raised if the results strongly contradict it. While family courts recognise that safeguarding concerns should be taken seriously, repeatedly making unfounded allegations can undermine a party’s credibility.
What happens if the results are positive?
Positive test results do not necessarily determine the outcome of a case, but they will influence the court’s assessment of risk.
If testing confirms ongoing or significant substance misuse, the court will usually consider what impact that behaviour may have on the child. The key issue is not simply whether drugs or alcohol have been used, but whether that use affects parenting ability or creates a risk to the child’s welfare.
The court may respond in several ways depending on the severity of the results. In some cases, the parent may be asked to engage with treatment or support services. The court might also direct further testing at a later stage to assess progress.
Where concerns are more serious, the court may decide that contact between the parent and child should initially be supervised. Supervised contact can take place at a contact centre or in the presence of a trusted third party. This allows the relationship to continue while ensuring that the child’s safety remains the priority.
Positive results can also affect longer-term decisions about child arrangements. If substance misuse is persistent or untreated, the court may conclude that the child should primarily live with the other parent until the issue has been addressed.
The importance of context and interpretation of results
While laboratory testing can provide important information, it is not always straightforward to interpret. Courts know test results must be understood within the wider context of the case.
For example, hair strand testing may show patterns of substance use over time, but interpretation can still be complex. Certain factors, such as passive exposure or external contamination, may sometimes affect the findings, and expert evidence may be required to explain the results.
As a result, the court may rely on expert reports from the testing laboratory or independent toxicology specialists. These reports can help clarify what the results actually demonstrate and how they should be understood.
Find The Best Divorce & Family Lawyers Near You
We independently review and list the top divorce lawyers and family solicitors in the towns and cities near you. 100% free.
The information on this website is to be considered a guide and is therefore not legal advice. You use this information with the understanding that Wiselaw does not accept liability for any direct or indirect losses as a result of anyone relying on or acting upon the information on this website. Whilst we endeavour to provide accurate information, Wiselaw does not accept liability for any errors or omissions on this website.
