 Hello, thanks for tuning in to this talk video about some area of specialism within family law that I'm particularly interested in and that I've done some research around. My name's Simon Flax, I'm a lecturer at Westminster Law School, and I'm going to talk to you about parental substance use and family justice. Parental substance use and addiction is quite a live public and policy issue. It's very contentious, it's quite morally charged. You may have seen stories in newspapers about the problems of parental addiction and the effect it has on children. Some of these stories are particularly demonising of the parents concerned. In some jurisdictions around the world it's even possible that a pregnant mother would be imprisoned if she uses drugs and alcohol. There's evidence that she uses drugs and alcohol because she's imperiled her unborn child. That doesn't happen in many jurisdictions but it's still the case in some and even when pregnant mothers are not necessarily imprisoned they may be subject to all sorts of coercive mechanisms because it's been discovered that they are using drugs or alcohol. So it's quite a contentious area of public policy and also of law and that's one of the reasons I'm really interested in it and perhaps you might be interested as well. It's not a new issue for people to be concerned about whether in the policy realm or the legal sphere. But I do think that over the last 20 or 30 years it's become much more of a kind of live policy issue if you like and in this country at least. And part of the reason for that is that there are a number of reports published in the early 2000s which identified the harms that children had experienced or were experiencing or could experience as a result of having parents who use drugs and alcohol. And these had quite a severe and considerable impact on public policy. So often in local authorities you will now find hidden harm workers who are employed specifically to kind of work out whether children are at risk as a result of parental drug and alcohol use and also how to resolve the problems that ensue. But most of the interest in this area has mostly been from non-legal fields so the fields of social work, health policy and so on. There's much less interest I think and there has been much less interest in the impact of parental substance use and addiction in the family justice system. So why this matters for you as family lawyers is that substance misuse is thought to be involved in up to a third of care applications. So in terms of public law it's a very kind of common issue to come up in public law cases. If you speak to family law solicitors who are involved in child protection they will often have a caseload that involves at least one or two perhaps more instances where there is some application by local authority because there is evidence of parental drug use or addiction. So it's particularly important in that sense. It's also often cited in private law cases and especially between parents whose relationship has broken down and where there is dispute about childcare and one of those parents or even both of those parents are accusing the other parent of excessive drug or alcohol use. And that's quite common for family solicitors too or family baristers to encounter allegations in that regard. So it's a really important issue and yet there hasn't really been a huge amount of research into it. There's been a lot of research into the family justice system generally in family courts and outcomes in family courts but not so much into... I suppose the things that I'm interested in are what impact does addiction have on parental capacity according to the courts? What do they understand addiction to be? What do they understand drug use to be? And when does that drug use or alcohol use become problematic? Those are sorts of all of the questions that I was quite interested in this respect. But before I talk a bit more about the actual project and some of the research that I've undertaken and the findings that resulted, a bit about just some basic stuff really around what the law says. So you may have encountered these provisions already but under the Children Act. It's possible that under 18s may be supervised by local authorities and removed from the care of their parents through care and supervision orders if there is judged to be a significant risk of harm to the child or to children. And harm in this context means ill treatment or the impairment of health or development, including impairment suffered from seeing or hearing the ill treatment of another. So in the case law we find that harm is being found to encompass, for example, witnessing the domestic abuse of a parent, not attending school, not receiving adequate medical treatment, and also the use of substances in the home. That said there are some correctives and I'll talk a bit more about the domestic context but there are some correctives to that so the European Court of Human Rights ruling is that taking children into care should generally be a last resort and only temporary in order to preserve the rights of both parents and children to respect for family life. And judges in family courts and lawyers actually are often in a really difficult position because the best place for a child is normally with their parents to stay with their family. Outcomes for children who go into care are generally not as good as for children who are able to reside in their family home with the parents or parent who raised them. So it's obviously very difficult for judges to make that decision to kind of pull children away from that environment, from parents who they love, because there's some evidence of some problem happening within that family environment and substance use is often, like I said, cited as a reason for that to be necessary. And as I said in private law cases as well, evidence of parental drug or alcohol use is often used by one party against the other and also may preclude the use of mediation services following family breakdown. So it's a really important issue and as I said there hasn't been a huge amount of research done into it and questions where research has been done, the questions relating to parental substance abuse have mainly been tackled by researchers operating within the fields of social work, public health and so on. So what I wanted to do with my research and I've published a couple of papers on this now and I'm also in receipt of a small grant to take that research further and to do some interviews with lawyers, barrister solicitors and also magistrates and judges was to think a bit more about how substances are framed within family court judgements and my kind of way of which I wanted to approach this question was to think about how parental drug use is problematised. What I was thinking was judges are making these really important decisions, social workers are often providing expert evidence within court cases, whether in person or filing reports but is there consistency about what, how drugs and addiction affect parental capacity, if there isn't consistency why, what do we judge consistency to be? So those are really important questions in relation to the research but what I wanted to do as a sort of first tranche of research if you like was I went into Westlaw as you might hopefully will do at some point over the course of your studies to basically source all the cases, all the reported cases that I could find where parental substance use and addiction was mentioned and that totalled 178 cases. Now that doesn't sound like many but bear in mind that these are only reported cases so that to be something significant enough about these cases for them to have been reported in some kind of journal or another. And my analysis was informed by this sort of what we call a problematisation perspective or a theoretical approach in which I wanted to really critique exactly what was meant by drug use and addiction and this is sort of informed by quite a lot of literature in the non-legal field, drug studies, health studies and so on that has really explored drugs and addiction as not the sort of stable objective terms that we might come to think of them as but actually drugs and addiction are often sort of made or produced differently depending on the context in which they're talking about. So in other words they're not the stable characteristics and they can change and actually that can have a really important effect on the outcome for example people who are using drugs or indeed children as well. So I should say that I didn't want to criticise the judgments, like I said the judges and the magistrates involved often have these really difficult cases before them and I also don't want to suggest that children are not harmed by the use of substances by parents or within families or addiction but I wanted to look more at how terms like drugs addiction and parenting are framed and what the relationship was between them really. So the first question I wanted to think about was what is exactly the risk to children and also what does Keisler say about what the effect of drugs and alcohol use, abuse however it's termed and the use of terms is also contentious and problematic and how does that affect outcomes? So Lady Hale has taken or took a fairly kind of immediate and not ambiguous but fairly kind of level view and she said we're all frail human beings with our fair share of unattractive character traits, bad behaviours and so on and that this might include the abuse of alcohol or drugs and basically that's not a big enough reason in and of itself to remove children from a family environment and to be looked after by the state. There isn't necessarily a lot of consistency in this respect though this is a slightly older case but in this case Lord Justice Thorpe said in his experience sitting on the bench 11 years as a judge of the family division his view was that parents who deal in drugs or dabble in drugs or even take drugs have great difficulty retaining care of their children so not even abuse of drugs in how Lady Hale talked about it but just dabbling in drugs, just evidence of having taken some drugs that that's going to be a real problem for retaining the care of their children. Now this case is, as you can see, it's about 10 or 15 years old so the situation might have changed in family courts and we also have now problem-solving courts so family drug and alcohol courts unfortunately it looks like those are going to be discontinued but it will vary from court to court as I imagine I'm from judge to judges to what extent drugs results in these sorts of outcomes and I suppose that's the reason why I wanted to study it really it didn't seem to be a clear perspective or a clear precedent for precisely how it's going to affect cases for either in public law or private law. So one of the things I was interested looking at and I'll just outline three here there'll be, I want to talk a bit about how drugs are produced how addiction is produced, that's to say how is it framed in the decisions I'll also look a bit about the gendered nature of problematic use and I'll also look at or tell you a bit about another finding which pointed towards how drugs are often isolated as the cause for family breakdown when there might have been other contextual factors at play and I'll talk about those things as we go along a bit more context, the general sense you get where I got from reading the cases was that drug use was considered to be immoral, it was frowned upon it was considered to be a failure of personal responsibility you might not be surprised as lawyers to notice or to find out that courts are more likely to see, to frame this in terms of responsibility considering responsibility is so important to law and legal logic but judges talked about things like drug taking was like catching a disease drug use was framed as threatening and infectious drug abuse would be more higher than learning difficulties of the parents in terms of personal character defects and it wasn't just about the risk posed by taking drugs it was also being involved in the drug culture as well so that's just a bit of a flavour of some of the general comments that judges tend to make in the transcripts about the use of drugs it wasn't condemned to put it that way in terms of then how drugs were framed and how addiction was framed there wasn't consistency in which substances were and were not problematic nor in how much use was problematic across the cases so judges said different things so in this case I've highlighted it because caffeine was considered to be a drug of abuse and the father involved was thought to be abusing caffeine along with various other drugs and you can tell in this quote, I won't read it out to you because I'm sure you're capable of reading that caffeine was alongside other drugs almost as if it was equal to other drugs in some cases excessive use of prescribed drugs were also problematic so benzodiazepine sleeping pills they were thought to impede good parenting although it wasn't always clear what excessive use of those drugs meant quite a lot of people use benzos as they called on a daily basis quite a lot of people use alcohol on a daily basis it wasn't entirely clear the extent to which that became problematic there was also a difference of opinion about whether people who are on maintenance therapy that's to say they are taking drugs, prescribed medicine in order to come off say heroin whether that would impede parental capacity either so there was a lack of consistency really about drug effects and it depended on the case as to what kind of substances inhibited parental capacity and as you can imagine I think that's a potential problem in terms of consistency and fairness of outcomes and there might be a dependency on the moral views of the judge as to whether the use of a particular substance was or was not problematic another takeaway, important takeaway I thought was the ways in which drugs were blamed for family breakdown and family problems so what you sometimes found is a discussion, quite a lengthy discussion in the transcripts of all sorts of problems that had affected these particular families so perhaps one or both of the parents had experienced some kind of abuse as children perhaps they were then behaving problematically when they were older by using drugs and alcohol, perhaps dealing in drugs and alcohol but there was often some background and often some contextual factors it wasn't middle class people who suddenly started using drugs and having problems with drugs and alcohol but perfectly well adjusted middle class people who hadn't had much trauma in their background it was almost always unfortunate cases really of people who'd experienced disadvantage and were now using drugs and alcohol but what was interesting I thought was how judges tended to nevertheless isolate drugs as the causal factor that was leading to family breakdown so in this case the judge said that all four children have experienced a chronically unstable, chaotic and unsafe home environment due to their mother's drug misuse and the accompanying issues of neglect of their basic needs and poor emotional achievement and in this case the mother had experienced all sorts of child abuse, sexual abuse she'd been raped in the past but it was due to the mother's drug misuse that was the problem and I just thought that was quite interesting because most evidence and in fact as is said in other cases it's usually kind of a number of factors that cause that lead to the children being neglected and leading to problems with children's upbringing not simply usually to do with the drug misuse although I'm not discounting the possibility of course that drug misuse is does cause enormous problems depending on the drugs and how much it's used so harm wasn't consistently really taught there wasn't a consistent way in which harm was thought to kind of be experienced and the final takeaway that I thought you might be interested in thinking about was how the judgments were gendered and a bit of background to this so although research on female substance use remains relatively limited women consumers do tend to be portrayed as doubly deviant and more disturbed than their male counterparts and this is probably not surprising to any of you who've studied feminist critiques of the law whether it's the criminal law or family law but women who basically are thought to behave in a deviant manner they're not only deviant because of that behaviour but also because of their transgression of traditional gender roles it is not lady-like or it is not woman-like somehow to take drugs plus there is also the moral program associated with taking drugs in the first place so good mothers don't really use substances and those that do are portrayed as negligent and unfit a good mother is generally thought to be thoughtful, outthoristic, patient, devoted to her children she sets her own goals and interests aside she devotes herself entirely to her children she sacrifices her own happiness and wellbeing for her children that's a lot of literature that's remarked on how that's generally how women are represented and how mothers are represented in the social sphere and women's drug addiction has consistently been framed within this domain of social reproduction so it's not just that they're addicted it's that they are somehow failing to ensure the correct bio, social and development survival of their children or development of their children and this was replicated really in the cases so although there were often cases where there was drug use by both the father and the mother it was often the mother's behaviour and the mother's drug use that was remarked upon as being particularly problematic so in this case the father was identified as a user of crack cocaine and possibly heroin but the judge only commented on the mother's plight and said it was truly pitiful and seemingly particularly ill befitting of a mother and woman so although the father was thought to be self-centred, controlling and over assertive it was actually the greatest damage to the mother's chances of carrying for her children was through her longstanding addiction to drugs and drink there wasn't a mention so much of the behaviour of the father although he was described as having a sort of anti-social personality nevertheless it wasn't seen as particularly kind of disturbing in the same way that it was for the mother in this case or as important to the outcome and the judicial constructions of the life narratives of the women they also tended to draw on either bad choices and deviant behaviours or tragic histories of the women who had been caught up in cycles of deprivation and abuse and yet it was still the drug use that was normally cited as being the problem the key problem that was causing her to lose custody residents contact with the children and the permission to mother was generally contingent on abstinence from drugs so I hope you found that interesting I suppose there's a few things that you might want to take away from it I hope you found it interesting anyway but I suppose what I found was that the focus on individual responsibility and parental responsibility fitted quite well with the ways in which socially excluded mothering practices have been subject to particular scrutiny in market-based societies and in that sense parents are often seen as primarily responsible for all sorts of deficits and problems that are set to arrive in families and in society and this is often to the exclusion of structural variables such as poverty in class so into some extent it's not really surprising drugs is an easy way to say look this is the problem it's much easier to say this is a failure of personal responsibility than to get into all of the circumstances of inequality and how to resolve those problems of inequality and we do know that by the way that drug problems are much more concentrated in deprived areas they tend to coagulate there it's not that middle class people don't use drugs it's just that drug problems people developing problems tends to be more likely to occur in more deprived communities and so yeah substance use was tended to be identified as causally responsible for the family problems and even for child harm and there was less kind of mention of the importance of things like social support particularly from fathers, financial problems, mental health issues or domestic violence even and also pointed out that the relationship between substance use and motherhood was constructed as especially problematic and this is troubling in terms of I suppose how we understand and view gender relations and particularly the ways in which we hold women more responsible for failing to conform to the ideals of a maternal and parental role thank you very much for listening I hope you enjoyed that please feel free to get in touch with me if you've got any questions and thanks again