The court’s approach to alcohol dependency in private family law cases

The court is often asked to deal with disputes between separated parents and wider family members in respect of the arrangements for children. When dealing with such disputes, the court is governed by the Children Act 1989.

The first section of that Act confirms that, when the court is asked to determine any question with respect to the upbringing of a child, ‘the child’s welfare shall be the court’s paramount consideration’. The Act also confirms that the court will assume ‘unless the contrary is shown, involvement of a parent in the life of a child will further the child’s welfare’.

When making an order in relation to children, the court considers various factors include the wishes and feelings of the child; the child’s physical, emotional and educational needs; any harm the child has suffered or is at risk of suffering; and how capable each of the child’s parents are of meeting his or her needs.

The position is, therefore, that a child’s contact with both parents will be promoted and encouraged, provided it is safe for contact to take place, and provided that the parents are able to meet the child’s needs. The structure of a child’s contact arrangements with their parents will largely, in the absence of any welfare concerns, be dictated by practicalities, such as where the parents live, the child’s school/extra-curricular routine, and the parents’ work commitments.

As the court has a duty to prioritise the child’s welfare, alcohol dependency in respect of either parent is quite understandably a valid concern, which must be properly explored.

Alcohol dependency and its impact on children

A 2010 study, conducted by Professors Nutt, King and Phillips, concluded that alcohol is more harmful than heroin, crack cocaine and tobacco. The study attributed a high ‘harm score’ to alcohol based on it’s wide-spread and excessive consumption throughout the UK, and the impact it has not just on individuals but on their family members and society at large.

Research indicates that alcohol consumption in the UK is slowly falling. According to Alcohol Change, alcohol consumption among adults in the UK ‘reached a peak in the mid-2000s’ and since then has been ‘falling steadily, especially among young people’.

The current average alcohol consumption per adult in the UK is approximately 18 units per week. That is approximately eight pints of beer or cider (at 4% ABV) or eight regular glasses of wine (at 12.5% ABV). The Chief Medical Officers’ recommendation is currently that men and women should limit their alcohol intake to 14 units per week and should ideally spread their alcohol consumption over multiple days.

Whilst alcohol consumption in adults appears to be slowly declining (particularly in respect of the younger generation), the NSPCC reported in February this year that ‘the number of children in England with a parent who misuses alcohol remains consistently high […] with more than 70,000 cases being recorded each year since 2019/20’.

The National Association for Children of Alcoholics (NACOA) confirms that the effects of parental alcoholism on children can be wide-reaching and can affect all areas of a child’s life. According to the NACOA, children with alcohol-dependent parents may experience financial insecurity, inconsistent and unpredictable behaviour, aggression and violence, a lack of nurturing and a need to take on additional responsibilities at home (such as cooking, cleaning and caring for their parents or siblings). They may take responsibility for their parent drinking and be encouraged to collude with them, to keep the issue concealed from third parties.

Ultimately, the children of alcohol-dependent parents are more likely to be exposed to physical abuse, neglect and psychological trauma; all of which can result in long-term problems, which persist throughout childhood and into adult life.

The court process when allegations of alcohol dependency are made in private law Children Act proceedings

If court proceedings are issued, the first step is for the Children and Family Court Advisory and Support Service (Cafcass) to file a safeguarding letter at court. Essentially, Cafcass will have initial discussions with the parties and will ascertain their respective positions/concerns. Cafcass will also make enquiries with the police and local authority, to establish whether the parties or child are known to those agencies. Cafcass will then summarise their findings in a safeguarding letter.

The purpose of Cafcass’ safeguarding letter is to identify whether any welfare concerns exist and guide the court and parties as to the appropriate way forward. If either parent has concerns about the others’ alcohol use, those concerns should be relayed to Cafcass during the initial safeguarding discussions.

The parties will attend court for an initial directions hearing, known as the First Hearing Dispute Resolution Appointment, or FHDRA, after the safeguarding letter has been filed. At the FHDRA, the court will make case management decisions (known as directions) which take the case forward. The directions made at the FHDRA will usually align with the recommendations made by Cafcass in their safeguarding letter. Common directions include the parties being ordered to file position statements and obtaining a report from the child’s nursery or school. Where concerns have been raised about potential alcohol dependency, the court will usually direct the relevant parent to undergo testing.

There are three types of testing that are commonly used to identify the presence of alcohol in the system, namely blood testing, urine testing and hair-strand testing. The latter is the most common in Children Act proceedings. That is because blood samples and urine samples can only detect alcohol consumed in a short window of time directly prior to the test, whereas hair-strand testing can in theory detect a history of excessive alcohol consumption over a period of several months.

If the court orders a parent to undergo hair strand testing, a referral will be made to an expert testing company, who will usually request the attendance of the parent in question in-person to collect a sample. The testing company will subsequently file a report at court, to summarise their findings. The parties will then return to court and will reflect on that expert evidence and the appropriate way forward. The expert report will form part of the ‘factual matrix’ of the case and will assist the court with establishing fundamental questions, such as whether contact between the parent and child should be facilitated or limited, and whether ongoing testing is justified.

Hair-strand testing

Hair-stand testing involves identifying biomarkers in hair which are typically only present when ethanol has been ingested. Those biomarkers are Ethyl Glucoronide (EtG) and Ethyl Palmitate (EtPa). The current consensus of the Society of Hair Strand Testing (SOHT) is that the following concentrations of these biochemicals can be indicative of either abstinence, regular alcohol consumption or chronic excessive alcohol consumption:

The above consensus is based on guidance from the World Health Organization, which defines a ‘heavy drinking episode’ as the consumption of 60 grams of pure alcohol (equivalent to approximately six standard alcoholic drinks). Drinking at that level over a prolonged period is deemed to be chronic and excessive.

There are undoubtedly limitations to the assessment of these biochemicals in hair. For example, as some hair products contain alcohol, EtG can be incorporated into the hair strands of a teetotal individual. As EtG is a water-soluble compound, its presence in hair can be reduced by excessive washing. The concentration of EtPA, which is a lipophilic compound, can be impacted by significant weight loss. Studies also suggest that differences in hair colour, ethnicity and an individual’s rate of hair growth can impact test results. It is, therefore, possible for tests to produce false positive or negative results.

Relevant case law concerning the use of hair-strand testing

The limitations of hair-strand testing were explored by the court in the case of LB Richmond v B & W & B & CB [2010] EWHC (Fam). The case involved a mother who had a long-term alcohol dependency. During the course of care proceedings, she undertook regular hair-strand testing. She informed the local authority and the court that she had stopped drinking entirely. However, one of the laboratory reports produced indicated that, one of the hair-strand tests (which was said to relate to a 1-month period) indicated that the mother had consumed alcohol. This led the local authority to believe that the mother was lying about her alcohol intake and was unable to care for her children.

It transpired that the approach taken by the laboratory in case was unhelpful. They had cut a 3 cm sample of hair into three separate 1 cm pieces and had treated each separate piece of hair as being representative of 1 month. As such, they identified an EtG concentration of 22 pg/mg in one of the hair samples (indicative of regular alcohol consumption). A further test, which was undertaken at the mother’s request in the following month, and relied upon a 6 cm piece of hair, identified a negligible concentration of EtPa and produced a negative result.

The key principles established by the court in the case were as follows:

• hair-strand testing is limited to indicating whether there has been excessive alcohol consumption. It cannot provide a clear chronology or an individual’s alcohol consumption or identify any specific drinking patterns;
• likewise, hair-strand testing cannot be used to prove abstinence. Even in teetotal individuals, there can be low levels of EtG and EtPA identified in hair samples;
• it is not scientifically sound to segment hair into monthly sections. That is because of the way in which EtG and EtPA are secreted into the hair. It is only possible to assess the average concentration of those compounds across one sample;
• it is helpful, where necessary, to commission both EtG and EtPA tests, and to use a range of other tests (such as blood and urine testing) to build an overall evidential picture; and
• ‘you cannot put everything on a hair test,’ ie, hair strand testing should be treated as one piece of evidence that forms part of an overall picture; not conclusive evidence that is looked at in isolation.

The science of hair-strand testing was further explored by the court in Re H (A Child: Hair Strand Testing) [2017] EWFC 64. This case involved the use of hair-strand testing to establish whether a mother had been using cocaine, at a low level, over a period of 2 years. The mother was adamant that she was abstinent. However, evidence provided by various testing organisations indicated that that there had been some low-level consumption for at least part of the 2-year period in question.

The judgment in the case summarised the evidence given by the expert witnesses at Alere Toxicology, E4 Law Limited and DNA Legal. It was essentially noted that there are various reasons why a hair-strand test can identify drug metabolites even after a period of abstinence. The judge confirmed that “the variability of findings from hair strand testing does not call into question the underlying science but underlines the need to treat numerical data wit proper caution. The extraction of chemicals from a solid matrix such as human hair is inevitably accompanied by margins of variability […] as previous decisions remind us, a test result is only part of the evidence. A very high result may amount to compelling evidence, but in the lower range numerical evidence must be set alongside evidence of other kinds”.

Conclusion

Alcohol dependency is a serious issue which must be properly addressed by the court when Children Act proceedings are issued. Laboratory testing of blood, urine and (most commonly) hair samples can be a useful instrument for detecting alcohol in a donor’s system. However, these tests have their limitations and can only be treated as one part of the evidential picture.

In private law Children Act cases, it is often the case that allegations of excessive alcohol consumption are made and then quickly dispelled following the production of a report. Hair-strand testing is expensive, and the court will not expect parties to pay for repeated and costly testing where there is no evidence of serious alcohol abuse. However, where tests produce positive results, or where there are long-standing and well-established concerns regarding the relevant parents’ alcohol dependency, regular testing can take place.

When the court has concerns about a parent’s alcohol consumption, it is very likely that the child’s contact with that parent will be limited. Contact may take place on an indirect basis only (for example, with the use of FaceTime or the exchange of letters and video messages). If direct contact takes place, it will likely be on a supervised basis (ie, at a contact centre or under the supervision of a trusted third party).