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Family Law

Drug testing in family court – how reliable is evidence?

By April 20, 2020February 23rd, 2024No Comments

A case in the UK has raised the interesting issue of falsification of drug testing service reports after a father provided a doctored report that ‘proved’ he was not using drugs. The falsification only came to light because the mother happened to think that the father’s hair appeared longer at custody changeovers than the length his hair sample was described as being in the test report. Could this happen in Australia? With drug testing in family court, should testing service reports really be provided to parents to submit to their solicitors or would it be better if they were directly provided by the service to the courts?

In both countries, when courts order drug testing to occur in parenting matters, the parties undergoing the drug testing are required to obtain the tests themselves from an accredited testing service, and the results are then provided to all parties, with solicitors providing them to the court. But how closely do the courts scrutinise the validity of these test results? Is it up to the other parent to assess whether the reports are valid?

Drug testing in family court is ordered when it is suspected that children are at risk of parental drug use. This may happen after parties have submitted their Notice of Risk document to the court at the beginning of the litigation process, indicating they feel a child is at risk of neglect or abuse due to the other parent’s drug use. An Independent Children’s Lawyer involved in a parenting dispute can also request a drug test.

Testing may take the form of urine analysis, blood tests, or, when there is a suspicion of longer term drug usage, hair follicle testing which can provide a record of drug use over time. (This is because substances in the bloodstream are incorporated into growing hair.)

In the UK case, described as “slightly worrying”, a father accused of abusing cocaine was required to prove he had abstained from drug use, with hair strand testing for three months. The father arranged the testing himself and provided a report from the testing service to his solicitors, who then filed the report with the court.

The report said the father had provided a hair sample of 3.6cm in length and that it was clear of substances. However:

“The length of the hair sample did not accord with observations by the mother in relation to the father’s hair length at contact handovers. The mother requested her solicitor to contact the testing service, to establish whether the report they received was legitimate.”

The mother’s solicitor then discovered that the report the father had filed was not in fact the report that had been prepared by the testing service. The dates were different and the hair sample reported by the testing service was only 1.5cm in length–and did test positive for cocaine.

This clearly meant the father had falsified the report. He eventually admitted his actions and showed remorse, which led to the judge in the case handing him a suspended jail sentence.

“[The judge] also suggested that in future particular reports from drug test providers should be filed with the court directly, rather than through any other party.”

Rather than rely on a parent being alert to differences in their ex’s hair length of only centimetres, it would seem this would be the far better course of action.

You can read about the UK case here.

Do you need advice regarding a parenting matter involving allegations of drug use by a parent or other significant carer?  For confidential advice, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.

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