Implications for testing in London Borough of Richmond v B and Others

Proving "Alcoholism" (Alcohol Dependence Syndrome) in Family Law: the Implications for testing in London Borough of Richmond v B and Others [2010] EWHC 2903 (Fam) (Mr Justice Moylan)

One of the more common reasons for the instruction of experts in family law cases is in the "proving" of alcoholism (alcohol dependence syndrome), harmful or problem drinking, or alcohol abuse (an issue which warrants a separate article).

In extreme cases where the alcohol-related behaviour creates physical risk for the child (the stereotypical example being given of dropping the baby into hot bathwater), the facts may speak for themselves and the court able to protect the welfare of the child, through its range of available orders without requiring a formal diagnosis.
Consistent with the abuse of alcohol in society, and the fact that physical manifestations of alcohol-related behaviour simply represent the tip of an iceberg, the main body of which is comprised of the emotional and psychological problems underlying such destructive behaviour, there are many more cases of seemingly otherwise "normal" working and middle class families where alcohol abuse is a concern expressed by one of the parents but where the children have not been directly impacted by its use.  
In these cases, the parent making the allegations is frequently caught in an ever increasing in intensity "foxhunt", where very frequently without independent corroborative evidence, they seek to prove that certain actions and behaviours of the other parent are evidence of the claimed alcoholism.  However, consistent with the lack of corroboration, the adversarial nature of family proceedings and the inevitable symptomology of denial, such skirmishes may comprise: accusations of an unwillingness to interact with the other parent in preference to drinking alone in a different part of the house - typically explained in terms of escapism from the failing marriage (thereby, introducing a spin-off argument of cause and effect); the loss of employment - typically explained in terms of a long-term lack of enthusiasm for that job and the people they work with; leaving the child alone for short periods of time on the odd occasion - where the trip to the very nearby newsagent is explained away as the need for supplies for the children or, in an attempt to garner sympathy, to fuel the lesser culpable uncontrolled addiction for nicotine; an increase in nocturnal social activities involving alcohol (again explained by a need to release the marital pressure) or "throwing oneself into work"); attendances at Alcoholic Anonymous or mental health care professionals (which invariably were only ever attended, so the rebuttal goes, because the parent under suspicion felt pressured by the complainant and, in an attempt to deflect the accusation, claims that they would have done anything to save the marriage, - the failure of which only proves that their use of alcohol was not the causative factor in the first place).  All very neat and manipulative as is the way with addictive behaviour.

As the examples fail to result in the "win", the accuser subconsciously tends to adopt a strategy of "more of the same", frequently only to see their case backfire amongst counter- accusations of such behaviour being a further symptom of the accuser’s obsessive nature, often coupled with counter-accusations that because, at times, both parties consumed alcohol together, it is really the accuser that has the problems with alcohol and that this case building is simply transference.  These types of manipulative and frustrating behaviours will come as no surprise to the parent who, during the relationship, has unsuccessfully sought to utilise logic, emotion and psychology to prevent their loved one from putting themselves and the marriage in harm’s way, only to experience a further intensity in the resistance as their loved one appears to be controlled by a puppet-master whose only reason for being is to preserve the addiction. 

Few litigants are "fortunate" (in terms of proving their case) to have clear and unobjectionable evidence such as conviction(s) for drink-driving or other alcohol-related offences or physical injury caused to the struggling parent themselves resulting directly from the consumption of alcohol.
In the pursuit to prove alcoholism, it is an extremely risky course of action for practitioners to approach the problem solely on the basis that the answer to allegations of alcoholism by one party is to seek expert evidence on the matter.  Alcoholism does not equal psychosis, and even less stupidity.  It will be a very rare individual indeed who during an attendance at an involuntary assessment with a psychiatrist with typically several weeks of notice and being fully aware of the stakes of "failing" the test, would participate in the inevitable "Q and A" based meeting in such a way to incriminate themselves.  Such denial may be "unintentional" and simply a further demonstration of the refusal to acknowledge reality which was not resolved even though it became the deal-breaker for the marriage, and the cause of financial and other loss to the family.  In the absence of a case history which directly evidences alcohol abuse (physical symptomology usually occurring many years if not decades after the emotional and psychological symptomology), psychiatrists, as clinicians, attribute most significance to answers given in interview and the least significance to disputed accusations by the other parent in the context of acrimonious legal proceedings.

Further, as essentially a caring professional, the core reason for a diagnosis is to understand the prognosis and available treatment plan in order to help the individual.  Once the diagnosis has been made, the problem is quantifiable and can therefore be managed which may result in the other parent’s concerns being significantly neutralised.

Clinical testing for alcoholism may also be inconclusive.  Blood tests which are more sensitive than hair tests in detecting recent alcohol abuse (even to the extent that alcohol related behaviour during the relationship can be proved, litigants will invariably rely upon the fact that this occurred many months ago and was caused by the problems in the marriage and that they have seen the errors of their ways) are significantly fallible.  Certain blood tests may be as much as 40% fallible, and may be entirely inconclusive where alcohol consumption has ceased or been reduced perhaps for many months prior to the instruction of an expert [1].  Further, many of the connected physical symptoms of alcoholism can be inconclusive, such as spider naevi (which can also be caused by prolonged exposure to sunlight).  Absent a liver biopsy (any volunteers?), alcohol-related liver damage cannot be proved and there is always the possibility of false positives and false negatives [3]. 

By way of an example I was involved in a leave to remove case on behalf of the respondent-father, where the applicant-mother was eventually shown to be drinking at approximately 4.5 times the dangerous level for women (approximately 140 units per week) for a number of months and yet she passed every single blood, scan and physical assessment, including being a clean bill of health from the expert psychiatrist in their written report.  It was only with having the facility of an adviser in the area of alcohol consumption, and employing evidential and psychological techniques that the individual was found to be suffering from moderate ADS with all of the emotional, psychological and potential physical symptomology that accompanies it.

Perhaps most significantly, just because an individual drinks excessively even for long periods does not mean they are addicted.  Even if they are addicted they may not necessarily have any symptomology which would ever compromise their ability to physically care for their children.  As Mr Justice Moylan acknowledged [2] in the context of hair testing (the preferred method of testing where, as is to be expected in private law cases the individual’s alcoholism is not so uncontrolled that consumption cannot be ceased for weeks or months - temporary abstinence not being inconsistent with alcoholism) such testing is not able to make any statement as to the environment, circumstances, amount or frequency in which alcohol is consumed on each occasion.  For example, there are no laws against the parent, during periods of weekend or holiday contact when they are not caring for the child drinking heavily and, therefore, distorting test results.  The amount of alcohol consumed is not necessarily an indicator of addiction.  With the problems of youth and middle-class drinking becoming more prevalent in society, the stereotype of the tramp underneath Waterloo Bridge is not, and I suspect never was, appropriate in family cases.  The impact on the family can be just as damaging and of concern to the court where one parent drinks a bottle of wine a night (not seen as excessive by many, but as newspapers are reporting in excess of the dangerous limit for men) where the behaviour is a symptom of unresolved emotional or psychological distress in the parent and leads that parent being emotionally unavailable to their children.

In London Borough of Richmond v B and Others, hair tests for excessive alcohol use were in the spotlight.  In the extremely thorough analysis of the methodology and effectiveness of hair testing, it was universally agreed that abstinence could not be tested by hair tests.  The same is true of urine, blood, swab and breathalyser tests where, as is commonly the case, the parent has ceased or reduced their alcohol consumption in anticipation of the proceedings many weeks or months before.  This provides an obstacle to the accusing parent as in determining addictive behaviour, failed attempts at ceasing consumption are viewed as an extremely important diagnostic criteria.  However, again demonstrating the difficulty of relying upon clinical matters in isolation to prove alcoholism, temporary abstinence is only of conclusive evidential value in those rare instance where alcoholism has already established prior to the commencement of the proceedings and has been recommended as part of a treatment plan.

Consequently, in determining the appropriate order to be made for a child, the court must be encouraged by the claimant parent to make judgments, taking into account all the evidence including but not limited to expert evidence and, in the context of what is necessarily an available snapshot of the family in any event, speculate as to the future consequences for the family if safeguards are not put in place (as all of the professional advocates agreed was the correct approach in the case in Richmond Borough [4]). 

In order to do so, two approaches are important.  Firstly, the case must be presented appropriately, with any strategic approach based on what is truly unique about the case, the parents’ respective psychologies as opposed to turning on allegations and counter allegations.  Secondly, the use of expert involvement in the parties’ interactions with the court appointed expert which, as London Borough of Richmond demonstrated, if mishandled or oversimplified, can lead to significant delays and additional costs as the expert evidence suffers from the principle of "rubbish in, rubbish out" and has to be unwound. 

As demonstrated by Mr Justice Moylan, the judiciary are extremely adept at cutting through a mass of expert evidence in order to process their logic for their judgment.  They cannot and should not be expected to do so, however, without refined expert evidence being inputted into the case by there being a "bridge" of expertise between the legal process and the expert evidence.  Such a breach facilitates expert advisers to speak the language of the court appointed expert and to clarify and challenge the report prior to the hearing in considered and informed correspondence. 

Without this dual approach, it is difficult to consider how the call for thoroughness made by Mr Justice Moylan can be fully satisfied when he said:
"The evidence in this case and these conclusions have highlighted the need for the exercise of considerable caution when hair tests for alcohol are being interpreted and relied upon, both generally and particularly in isolation.  Further, these conclusions only emerged during the course of the oral hearing.  This should not have occurred as they should have been apparent at a much earlier stage of the proceedings.  I regret to say that the hair testing evidence given in this case failed the parties and in particular the children" [5]

That being said, the courts have to keep pace with the aspirations of the concerned parent so far as they wish to produce evidence is concerned.  Losing the argument on alcohol may cost the concerned parent their child (for example, in leave to remove cases) or may entirely validate the previous behaviour of the accused parent who only seeks to deny their behaviour in the context of the litigation, perhaps having confided of their struggles with the other parent during their relationship, albeit, inevitably in an uncorroborated way.  

As a result of being able to employ its joint legal and psychological approach, Gregorian Emerson Family Law Solicitors have a wide range of evidential and psychological techniques to deal with cases involving alcohol and substance related issues.

Footnotes

[1] This being acknowledged by Mr Justice Moylan at paragraph 13 of the judgement in London Borough Richmond
[2] Paragraph 16 of the judgement in London Borough of Richmond
[3] The subject of comment at paragraph 21 of the judgement in London Borough of Richmond
[4] Paragraph 22 of the judgement in London Borough of Richmond
[5] Paragraph 55 of the judgement in London Borough of Richmond