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When Courts Draw Adverse Inference

Can Parents suspected of alcohol or drug abuse refrain from taking a drug test? How will it impact the decision of the judge?

Many of us know about the 'right to remain silent' when speaking with the authorities. Though in some circumstances, remaining silent can have a negative impact on your case. This is where your silence can lead the court to draw an 'adverse inference' (a negative conclusion). The same is also true when parents refrain from agreeing or complying with drug and alcohol testing within care children proceedings.

When it comes to allegations of alcohol abuse or substance misuse independent testing can help the court make decisions on what arrangements are in a child's best interests.

When a court orders drug or alcohol testing against a parent, the court cannot force them to undergo the testing against their will.

When parents refuse to partake in drug and alcohol testing, the court will try to understand the reasons behind the refusal or as to why the parents may be reluctant. It is the court's duty to take into consideration all the evidence, reports, statements etc. to draw inferences against the parent/s based on the evidence it possesses.

The court will likely need to see proof of alcohol or drug abuse before administering a drug test. In such instances we advise our parent clients to engage with the tests as ordered by the court. Refusing such testing without a reasonable defence will lead to the court drawing adverse inferences and this may lead to severe consequences such as the patents' responsibility being severed.

In many events Working openly and honestly with the court may work in the parents' favour. A failed drug or alcohol test alone is not decisive. It is important to remember a positive test does not inevitably mean the parent will lose rights/contact with their child. The family courts have a paramount duty to keep families together.

Contrary to popular belief you cannot pass or fail a test, each result is looked at individually considering the particulars of the case. Should the parents test come back 'positive' for alcohol or substances this does not automatically mean PR/contact will stop. Numerous parents with alcohol or substance issues still care for their children or have regular contact with them.

Ultimately, the judge will assess the significance of the testing results based upon the circumstances of the case.

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