ALCOHOL & THE FAMILY

A lawyer's perspective

by Jonathan Goodliffe, Solicitor(1)

 

THE LAW'S ATTITUDE TO ALCOHOL PROBLEMS

Most lawyers who practise in the field of family law are aware that many of their clients' problems are alcohol related. In the early part of my career I specialised in domestic violence cases. Most of the husbands against whom I obtained domestic violence injunctions, and many of the victims, had alcohol problems of one kind or another.

English law and lawyers, however, tend to treat alcohol abuse and alcohol dependence as something incidental to disputes arising in family law, rather than central to them.

There are several reasons for this:

The law has yet to find an appropriate language to use to describe the responsibility of those who fall into this grey area.

It is my experience that lawyers tend to adopt certain standard approaches to alcohol problems. If one tries to persuade them that alcohol abuse is an important factor in a dispute they will ask whether people drink because they have problems or have problems because they drink, implying that if the latter is the case then alcohol is an incidental rather than a central factor. Other typical attitudes run as follows:


"If my client drinks it is because of the problems your client has created, but

your client is an alcoholic, or

your client is just making excuses for his/her behaviour."

The real point of focusing on alcohol as a factor in family problems is not to analyse but to find solutions. Some people begin to solve their problems and become easier to live with, or to communicate with, when they accept help with their drinking problems. They are not necessarily excusing their past behaviour, as opposed to trying to understand it in order to change. This is a process that family law could do more to encourage.

 

THE FRAMEWORK OF ENGLISH FAMILY LAW

English family law is generally procedural in character, rather than substantive. Most of the rules set out in the Children Act 1989, for instance, describe the steps by which a court will arrive at a given decision, rather than what decision it will arrive at. Family relationships are such that detailed regulation is self-defeating. Section 1 of the Children Act 1989 provides that when a court determines any question with respect to the upbringing of a child the child's welfare shall be the court's paramount consideration. The courts have resisted attempts to refine or elaborate on this rule. The meat of family law, therefore, lies not in rules but in the practice of the courts.

The second basic feature of English family law is the confidential nature of most proceedings. They are generally held in private, whether they relate to children or to relationships between man and woman. This does not apply in every country. When I visited the Court of Session in Scotland, for instance, custody cases were being heard in open court and anyone could therefore sit in the public gallery. Until the late 1970s domestic violence cases were generally dealt with in England in open court and often filled the front pages of tabloid newspapers. This rule was changed because such cases so often affect the interests of children, whose affairs should, it was thought, be protected from the public gaze.

A third feature of family law is that the judges in making their decisions are exercising a discretion rather than interpreting rules. A judge, for instance, exercises a discretion when he makes a residence order in favour of the parent of a child. This makes it very difficult to challenge such an order by way of appeal, because there is no "right" or "wrong" way of exercising a discretion. It is only generally when cases are appealed that they can be reported.

The combination of Family law's procedural nature, of the privacy of its proceedings and of the fact that judges in applying it are generally exercising a discretion, makes it difficult to discern patterns in its approach to alcohol problems. Cases which are heard in private are only reported (usually without the names of the parties being given) by leave of the judge. The judge will only give such leave if he considers that a legal point of importance has been decided, or that publicity is in the interests of the family. The fact that a case involves taking difficult decisions arising from one or other of the parties' addiction to alcohol or drugs will not in itself make it worthy of report in the eyes of the average judge.

 

THE ROLE OF THE LAWYER

Representing clients who are alcohol dependent is exceptionally difficult. They are often manipulative, do not accept good advice, give inaccurate instructions and ask their lawyers to do the opposite of what is required to be done to advance their interests. This is because of "denial" which is an inherent part of addiction. The alcoholic blames what is going wrong in his life on everything and everyone except his drinking.

A typical example of this might be the husband seeking contact with his children. The wife objects because the husband has been violent to her in the past and has invariably had too much to drink when he sees the children. The husband assures his lawyer that the wife is exaggerating and that he never has more than one pint before the contact visits. Often the lawyer representing such a client emerges from the case feeling like a fool, with his client blaming him for everything that has gone wrong.

In my experience the task of a lawyer representing such a client will remain an impossible one until the client starts to come to terms with his addiction. It is thus the business of the lawyer as much as of the doctor or counsellor to identify the root cause of the client's problems and to develop the know-how and the skills to ensure that the client receives the appropriate help, either from professionals or from self-help groups such as AA. The lawyer may often be better placed than other professionals to persuade his client to accept help, since people with severe drinking problems tend to focus on what is wrong in their lives and in what is going on around them, than what is wrong with themselves. In most cases solving the client's addiction problem will solve many of his legal problems as well(6).

Furthermore, the lawyer needs to understand the relevance of alcohol as a factor even when his client has stopped drinking. In the example mentioned above of the man who sought contact with his children whilst denying that he had a drink problem, let us suppose that he was ultimately denied contact. A couple of years later, after he has become sober, he wants to see his children again. His lawyer must be able to help him to prove, and not just to assert, that he is a reformed character. This may be necessary, not just for the benefit of the judge, but also to help overcome his ex-wife's continuing fear and hostility(7).

Similar arguments apply in relation to lawyers acting for the spouses or children of drinkers.

The Law Society has recently been giving continuing education accreditation to courses designed to teach lawyers counselling skills. This may seem like an odd role for a lawyer to adopt, but solicitors are losing their traditional monopolies and can ill afford to adopt a narrow view of their function.

If you do not accept this proposition, you can turn it around and say "lawyers are acting as counsellors for their clients when they are not trained to do so and are more expensive than the experts. This is an additional reason for not cutting back on alcohol services".

 

THE ROLE OF THE EXPERT

There is much scope for specialists in drug and alcohol problems to act as expert witnesses in family cases. This is not a skill that can be easily picked up. Guidelines have been laid down by the judges as to how reports should be prepared and oral evidence given (see for instance Loveday v Renton & Welcome Foundation Limited [1990] 1 Med LR 117 and The Ikarian Reefer [1993] 2 Lloyd's Rep 68). Training is available, inter alia, from the British Academy of Experts (90 Bedford Avenue, London WC1, Tel 0171 637 0333).

One of the most difficult alcohol related issues which commonly arises in legal proceedings is the question of establishing whether a person is recovering from his drinking problem or whether he is simply misleading the court. Two errors are commonly made by lawyers and judges in this context. One is to accept the drinker's claim to be sober at face value, without requiring expert evidence. The other is to expect the expert to guarantee that a person has stopped drinking.

An expert can only ever express an opinion. A variety of scientific tests have been developed with a view to establishing whether a person is or is not alcohol dependent or drinking harmfully. Although much progress has been achieved non#e of these tests is yet 100% sensitive or 100% specific (see for instance Conigrave et al. "Diagnostic tests for alcohol consumption" Alcohol & Alcoholism, Vol 30 No.1, pp. 13,26, 1995). Opinion will therefore be based partly on the results of such tests and partly on impressions formed following interviews with the person alleged to be drinking, and in some cases those with whom he is in contact.

In Re A (Minors), Court of Appeal, unreported, 8th October 1994, a mother resisted a claim by the father of her children to have contact with them on the basis that he had been violent and had a serious drinking problem. He admitted he was an alcoholic and that he occasionally got drunk but claimed that "his attitude had changed and there will be weeks or days when he goes without a drink at all". No expert evidence on the issue of his drinking seems to have been given. Instead the court welfare officer spoke to the father, the father's mother, the "landlord of the public house which was the normal centre for his alcoholic activities" and to the father's counsellor. The latter reported through the welfare officer that the father was controlling his drinking and that "progress was being sustained". Surprisingly the Court of Appeal do not seem to have been clear whether there had been a direct report by the counsellor to the judge or merely an indirect verbal report through the welfare officer.

The mother's objections were overruled by the judge at first instance and her application for leave to appeal to the Court of Appeal was dismissed, the Court of Appeal remarking that the merits of her appeal were "non-existent".

It would perhaps have been more satisfactory, and certainly more reassuring for the mother, if in this case independent expert evidence of the father's condition had been insisted upon and, in default of agreement, for the expert or experts in question to have been submitted to examination and cross-examination. Welfare and probation officers themselves do not usually have appropriate expertise to perform such a function.

There is a long line of cases in which mothers have refused to comply with orders granting the fathers of their children contact with the children (see Parker and Eaton, "Opposing contact" November [1994] Fam Law 636). The father's violence and/or his addiction to alcohol and drugs featured in several of these cases. Judges assume that the problem in these cases is the mother's attitude. The legal system itself, however, also needs to recognise its own shortcomings and to consider what can be done to close the "credibility gap" by acknowledging that the sobriety or otherwise of a party to litigation can be a justiciable issue.

Other functions which could be performed in family court proceedings by addiction specialists include acting as mediators. Mediation is a function which is currently being promoted in order to save the costs which would otherwise be paid to lawyers whose approach may be more confrontational ("Looking to the future: Mediation and the ground for divorce" (HMSO)(1993)). At the same time the government's parsimony in providing funds for alcohol services may be preventing this "mediation" function from being performed before divorce proceedings are even initiated or contemplated. One species of "mediation" function might be for the addiction specialist initially to supervise contact arrangements relating to children where one parent is concerned about the other's drinking.

Whether addiction specialists can respond to the challenge presented to them by the courts' reluctance to face up to alcohol related issues is of course another matter. Some people who act as counsellors have dubious qualifications and are poorly paid. Most medical students receive little education on alcohol related problems. Many psychiatrists are reluctant to diagnose their patients as alcohol dependent, preferring more fashionable labels such as "depression", "stress" or "exhaustion". Many counsellors are reluctant to advise their clients to consider, much less accept, abstinence as a treatment goal, or to encourage membership of self help organisations such as Alcoholics Anonymous.

Just as an expert can help a lawyer to win his client's legal case a lawyer can help an addiction expert to provide a more effective service to the client by giving the client a motive to come to terms with his addiction and ensuring that the expert is fully informed of all facts relevant to the client's case - something that may often not happen except against the backdrop of court proceedings. If a father with a drinking problem has to prove that he has done something about his addiction in order to get contact with his children, then the appearance of recovery with which his lawyer is primarily concerned may, depending on the sophistication of the lawyers and the judge and the quality of the expert advice, ultimately translate itself into reality.


THE ROLE OF THE JUDGES

Similar remarks also apply to judges as apply to lawyers. The only way of gauging the attitudes of the judges to alcohol issues in English family cases, if you are not one of the parties or a lawyer acting for them, is to refer to cases which have gone to the Court of Appeal, even though the most interesting disputes are probably being resolved at grass roots level by circuit judges, recorders and district judges.

My own impression is that the judges sometimes do not appreciate the impact that the drinking of a parent can have on a child. In a case last year(8) a judge regarded a report by a doctor (it is not clear whether it was a GP or a specialist) as to the father's alcohol problems as exaggerated. 3 sessions of supervised access had appeared to work, but the father was drunk when supervised access was attempted. The mother opposed any access at all. The Judge ordered that supervised access be restored. His decision was confirmed by the Court of Appeal. No attempt seems to have been made to encourage the father to do anything about his drinking problem.

In Re B (a minor) Court of Appeal, unreported, 29th October 1992, Judge Galpin refused to consider evidence from a police officer to the effect that the father of the child still had a drink problem and had been seen drunk, despite his claims to have controlled his drinking. The evidence also indicated that the father had on one occasion threatened the mother with a knife.

The judge commented:

"Nothing is said against the father except that it is suggested that he drinks too much. He agrees that there was a time when he was drinking too much. He says for two years he has not drunk anything at all except on two occasions, one at Christmas 1991, and another at the last access, which took place in February 1992 when [the mother] was too upset by the forthcoming court proceedings to attend the access herself and he went alone. He agrees he was not drunk but he agrees that he had been drinking before he went on that access. Many parents drink and are still good parents to their children."

On this occasion the judge's decision to allow the father contact with the children was reversed by the Court of Appeal. How many judges share Judge Galpin's attitudes?

A statement made by Judge Goldstone(9) in a recent child care case:

"I have no doubt that she [i.e. the mother] is the more perceptive carer, and the carer better equipped, because of her emotional stability and her lack -- if I may use an old fashioned word -- of vice (in this case, drink) that the children must be the safer with her."

may or may not be typical of current judicial attitudes. It is hardly likely to to encourage people who have had drinking problems to be open and honest about them.

CASE REVIEW

I mentioned in the first part of this article, published last week, that the law's approach to alcohol related problems is often difficult to establish. There are, however, a few cases which have been reported which are worthy of note and illustrate current attitudes. Because lawyers do not readily recognise alcohol as a factor in family proceedings the emphasis in cases where this factor is recognised is on the problem in its most obvious form where the drinker is likely to be severely dependent.


Husband/wife maintenance


As with section 1 of the Children Act 1989, sections 25 and 25A of the Matrimonial Causes Act 1973 do not purport to lay down any precise rules as to how the financial liability of one spouse to the other should be calculated. The judge must exercise his discretion in deciding how to allocate the family resources. However, a number of factors are required to be taken into account by the courts when dealing with applications for financial provision, including:


In K v K [1990] 2 FLR 225 the husband and wife had got divorced and their house had been sold. The proceeds of sale, about 100,000, had been paid into a joint account pending the determination of the court as to how it should be divided. The wife asked for her half share. The husband, who had a drinking problem, was said to suffer from a personality disorder and had been unemployed for some 8 years. He claimed that he should receive more than a half share of the 100,000 and that the wife should pay him maintenance.

The court considered that his present situation was self-inflicted, that his "conduct" should be taken into account. The Court accordingly declined to award him maintenance. However he was granted 60,000 of the 100,000 on the basis that his needs were greater than those of the wife who had a well paid job.

Should a court be as generous as this to a husband, or indeed a wife, who has a serious drinking problem and is making no effort to seek help and rehabilitate himself? What is the point of awarding 60,000 to a person in such circumstances who does not appear to be able to shoulder any kind of responsibility and is as likely as not going to spend most of the money on alcohol? Is it practicable to put pressure on the husband to seek help for his addiction and personality disorder by withholding some or all of his financial entitlement or by investing any funds that he is entitled to in such a way as to ensure that family assets are not wasted? How does the order of the court in K v K square with the factors set out in sections 25 and 25A which the court is required to take into account in determining financial provision?

Another financial provision case illustrates a different issue. In Kyte v Kyte [1988] Fam 145, the husband was a manic depressive who also seems to have had a drink problem. He made a number of suicide attempts. After the second attempt the wife made no attempt to restrain the husband, indeed she provided him with alcohol and drugs to help him to achieve his purpose. She also formed a relationship with another man.

Ewbank J held that her conduct should be disregarded, but the Court of Appeal took the opposite view and reduced the money to which she would otherwise have become entitled on the grounds of her "gross and obvious misconduct".

The Court did not take the same view about the husband's behaviour. The Courts sometimes punish people who are affected by the behaviour of problem drinkers more severely than the drinkers themselves(10).

In other cases there is an assumption that a spouse is in some way responsible for the other spouse's drinking. For instance, the rule established in R v North Devon District Council, ex parte Lewis [1981] 1 WLR 328, is that when a husband makes himself homeless by spending all his money on drink, the wife will also be regarded as "intentionally homeless", and thus not entitled to be rehoused, if she "acquiesced" in his drinking(11).

 

Custody of children

The fact that one parent is claimed to have a drinking problem is often an issue in proceedings relating to children, although I have seen no "reported case", i.e. no case considered by lawyers and judges to be of sufficient interest to be worth reporting, specifically raising this point.

Custody cases involving mothers with drug and alcohol problems are, by contrast, often reported in American law reports. Statutory provisions make express reference to alcohol and drugs. For instance the New York Family Court Act provides that:

"... proof that a person repeatedly misuses a drug or drugs or alcoholic beverages ... shall be prima facie evidence that a child of or who is the legal responsibility of such person is a neglected child except ... when such person is voluntarily and regularly participating in a recognised rehabilitative program."

The American courts have the power, which is frequently exercised, to order a parent to undergo treatment for addiction. In England, although a criminal court can order such treatment as part of a probation order (under Schedule 1A of the Powers of Criminal Courts Act 1973 as amended by the Criminal Justice Act 1991), no such power exists under the Children Act 1989, although when a supervision order is made under Schedule 3 of the Act, a supervisor, usually a local authority, can impose a treatment requirement if it has the resources and the will to do so(12).

Addressing parental drug and alcohol abuse as an issue in custody proceedings does not, however, require that there should be specific rules on the subject. What is more important is that lawyers and judges should be informed and educated about the subject and capable of dealing with it in a sensitive way when it arises. The American approach has been much criticised(13). Often a mother with a drinking problem is better than no mother at all. The extent to which it is legitimate for the courts to put pressure on a mother with a drinking problem must to some extent at least be a factor of the extent and the quality of resources available to help her to recover from her condition.

Sometimes the American courts get carried away in overprotective or paternalistic attitudes. For instance, in In the Matter of Susan (1984) 124 Misc. 2d 443, a New York family court postponed a mother's resumption of custody of her daughter even though the mother had overcome the drug and alcohol problem which had originally led to the removal of the child. The court took the view that the mother's anger robbed her of the energy to develop deep personal relationships. "Only when [the mother] has faced and forgiven herself will she be able to help Susan to forgive her".

Anyone trying to help a problem drinker, including lawyers and judges, has to temper firmness with understanding. On the one hand the English courts tend to avoid facing up to alcohol related problems. On the other hand the American courts are sometimes too heavy handed. The most effective approach may be somewhere in between.

 

Contact with children

I referred above (under "Role of the lawyer") to the difficulties which often arise when the custodial parent objects to contact because the parent seeking contact is intoxicated at the time when he or she sees the children. One solution that is sometimes adopted to this problem in England is for the parent seeking contact to give an undertaking that he or she will not drink whilst in the company of the child. In theory breach of such an undertaking is punishable by imprisonment. In practice the courts are reluctant to send parents to prison for breach of court orders. When such a course is taken it rarely solves any problems.

Another device which is sometimes adopted is to require the contact sessions to be "supervised"(14), i.e. if the father is to have supervised contact the mother might insist either that she herself, or that a third party (often a member of the mother or the father's extended family or a court welfare officer), should be present.

However, where the parent in question is severely alcohol dependent, rather than securing from him an undertaking that may be largely meaningless, or creating potentially explosive situations by elaborate supervision arrangements, it may be more effective in some cases to withhold contact until the drinker has done something constructive about his problem.

A less drastic solution is to require that his contact with the children be supervised initially by an addiction expert and for such supervision to be relaxed as and when he makes progress in recovery. Such experts are better qualified than welfare officers to help in situations of this kind.

These proposed solutions assume, of course, that the appropriate professional help is available.


Domestic violence

I have not attempted to make any detailed study of the vast literature on domestic violence, however, I do detect some resistance on the part of some experts, to appreciate that there is a considerable overlap between the study of man's violence to woman and the study of his addiction to alcohol and drugs. Common themes include "denial", "anger management", "assertiveness training", "controlling behaviour", "violence in the family of origin", "depression" and "personality disorders".

Edleson and Tolman(15) on the one hand say that:

"programs for batterers must be prepared to treat or refer chemical dependence problems".


On the other hand they say:

"Men often blame alcohol or their childhood for their current violent behaviour. The belief that past or current events or persons control one's behaviour interferes with the development of non-violent behaviour in several ways."

People who get sober in Alcoholics Anonymous, for instance, often do not regard themselves as responsible for their actions when they were drinking, although they compensate for this by taking moral inventories of themselves and making amends for wrong done to others. If saying "I am an alcoholic" makes a man start to behave responsibly, then the fact that he blames everything on his drinking may be an irrelevance.

The Everyman Centre in Kennington, South London, which helps violent men to reform themselves, insists that men with an alcohol problem should deal with the latter problem before being accepted in the Centre's Programme. The Bolton self-help group, however encourages involvement in AA simultaneously with attendance at their group meetings(16).

For many years the law imposed a high standard in terms of the behaviour on the part of a man which would justify granting an injunction to his wife. Some judges used to insist on personally inspecting the bruises on the wife's body. When an injunction was granted it was usually too late to salvage anything from the wreckage of the man's relationship with the wife and often the man's relationship with the children.

However, the molestation which will nowadays be regarded as justifying the grant of an injunction includes "persistent pestering and intimidation through shouting, denigration, arguments or threats, nuisance phone calls, following the wife about, repeatedly calling at her home or place of work, filling car locks with superglue, and installing the mistress into the home with three children"(17). In B v B(18) the Court of Appeal held that jealous argumentative and unyielding behaviour on the part of a husband could be sufficient grounds for excluding him from the matrimonial home. In an unreported case in September 1994 the heavy drinking of the husband, without any accompanying violence resulted in a similar order being made(19).

Family lawyers are experienced at getting injunctions for wives in such circumstances. Legal aid will, subject to financial eligibility, generally be granted for such an application. What is much more difficult is to advise and represent the molesting husband. In most cases legal aid will be refused to such a husband because the Legal Aid Board considers that an injunction will inevitably be granted. In many cases, therefore, the husband is unrepresented, although the solution of the family's problems would often be helped if he were to receive legal and other professional advice.

At present the courts do not have the power to require either the man or the woman to accept treatment in domestic violence proceedings. Clause 18 of the Family Homes and Domestic Violence Bill proposes that the court should have power to remand for medical reports where violence (i.e. more than just molestation) has occurred or is threatened. It does not, however, contain powers to require a person to receive treatment for alcohol or drug dependence (as for instance under the Powers of Criminal Courts Act 1973) or for personality problems falling short of mental illness or severe mental impairment. Moreover alcohol studies are a multi-disciplinary subject. The relevant expertise, and the ability to assist the court, is not confined to the medical profession.

The wider the concept of "molestation" becomes, the more likely it will be that a solution more constructive than simply excluding the man from all contact with the woman and the children can be achieved, and the more important it will become for the law to devise remedies other than non-molestation injunctions and ouster orders, and for society to provide the resources for finding more constructive solutions to the problems created by the drinking of spouses and parents.

Domestic violence proceedings are particularly expensive. Cut-backs on expenditure on alcohol services may deprive people of the opportunity of solving drink related problems without recourse to the law. Such a policy will generally be self-defeating.

Jonathan Goodliff 1995

NOTES

1. 1 Published in the New Law Journal, May and June 1995. Based on a presentation at the Institute of Alcohol Studies in March 1995.

2. 2 In Re Kersey (1987) 520 A. 2d 321.

3. 3 See, for instance, R v Tandy [1989] 1 WLR 350; Goodliffe, "R v Tandy and the Concept of Alcoholism as a Disease" (1990) 53 MLR 809.

4. 4 See Pritchard, B; "Causes rather than Costs of Default", Law Society's Gazette, 18th November 1992, Goodliffe, J; "Alcohol and depression in English and American lawyer disciplinary proceedings", Addiction (1994) 89, 1237-1244.

5. 5 See for instance "Civil Commitment for Drug Dependence: the Judicial Response", T L Hafemeister & A J Amirshahi, Loyola of Los Angeles Law Review, November 1992, Vol 26 page 23 and "Court Ordered Drug Treatment does Help", The Judges Journal, Winter 1994, Vol 33, page 10.

6. 6 See "The Alcoholic Client" Solicitor's Journal 26th May 1989 and "The Alcoholic Lawyer" Solicitor's Journal 28th July 1989.

7. 7 The example used here is based on the real life case of Re D (A minor) (Contact: Mother's Hostility) [1993] 2 FLR 1.

8. 8 Re F (Minors), unreported, Court of Appeal, 17th February 1994.

9. 9 In Re H (unreported, decided on 6th November 1992, and confirmed by the Court of Appeal).

10. 10 As in the Thornton case.

11. 11 See Arden's Manual of Housing Law, 5th edition, Sweet & Maxwell paragraph 10.20.

12. 12 Children Act 1989 Schedule 3 paragraph 3(1)(a). Nottinghamshire County Council v P [1993] 2 FLR 134, Cobley and Lowe (1994) 110 LQR 39.

13. 13 See Janet L. Dolgin "The Law's Response to Parental Alcohol and "Crack" Abuse" (1991) 56 Brooklyn Law Review 1213.

14. 14 As in Re F (Minors), unreported, Court of Appeal, 17th February 1994.

15. 15 In "Intervention for men who batter, an ecological approach" (1992), Sage Publications.

16. 16 See J Cuffe, "Batterers try to beat a violent habit", Independent, 6th February 1989.

17. 17 These examples are taken from the Law Commission's report on "Family law, domestic violence and occupation of the Family home" (Law Com No 207) (1992).

18. 18 The Times, 6th October 1993.

19. 19 The judge in this case refused to release his judgment for general reporting.