A recent article in Gulf News dated 3 November 2012 confirmed a recent Saudi Arabian Court decision that it was not considered to be in the best interests of children for them to live with a mother or father who smoked.

To quote the article “Saudi Judges are setting a new trend…..by using cigarette smoking as a factor in child custody cases” and a legal official is quoted as saying “A parent could now lose the custody case if he or she is proven to be a smoker”.

In the Middle East, it seems as if this thought process is not just limited to child custody cases

The same article reports that in July 2012 a Judge ruled that women who suffered undefined damage as a result of their husband’s smoking could file for divorce. The Court said that a marriage could be ended because of the harm smoking causes if the woman did not know that the husband smoked prior to the marriage. The position would not however be the same for women who were aware of the man’s smoking prior to marriage!

Whilst it seems that some of the States in the USA consider smoking a factor in child custody cases, English Courts are yet to take smoking and its effects into consideration on either residence/contact applications or indeed divorce.

In relation to the Children Act Applications, the Court has to consider what is in the best interests of the children. Is it in a child’s best interest to be subjected to second hand smoke? It appears to be a medically accepted fact that passive smoking over a period causes health problems and that smoking during pregnancy causes harm to the unborn child.

To date, it appears the Courts consideration has been limited to the effects of smoking drugs on the children of the household. In Law –v- Knight (2005) EWCA Civ 918 a father made an application for a Residence Order in respect of two girls when it transpired during his weekend contact that their mother, with whom the girls lived, smoked cannabis and allowed it to be smoked by others when in her home. There were other allegations made including the mother having equipment on her premises being used for crack cocaine and her new boyfriend dealing in crack cocaine.

However, despite this, the Judge ordered the father, who had not returned the children after weekend contact, to return them and granted the mother an Interim Residence Order. The s.37 report apparently gave a generally positive view of the mother even though the author had reported seeing young people being allowed to smoke cannabis within the mother’s property.

Whilst this case is a step on from the potentially harmful effects of tobacco smoking, which is of course legal, it does beg the question as to whether it is in the best interests of children to be in a household where blatantly illegal activity is allowed by a parent.

Given the various issues which an English Court can and does take into consideration when deciding what is in the best interests of a child on a contact or residence application, it cannot be too long before a Court is asked to consider whether being in a house with a smoking parent is in a client’s best interest.

In the USA there have been three recent cases of note:

Heck –v- Reed where the North Dakota Supreme Court gave a “wife beating” but non smoking father custody of the children in preference to the smoking mother.

Smith –v- Smith where visits by a father to a child were suspended because he violated the condition that he should not smoke in the presence of the child.

Unger –v- Unger where the Court ordered a mother not to smoke in the presence of her children or have contact where she had smoked within the previous 10 hours.

Whilst not direct authorities for use in English Courts, such cases could be persuasive in the right case where a parent has grave concerns about their child or children being subjected to second hand smoke.

At Mackrell Turner Garrett, we have an experienced Family Department who can advise on this and all other issues relating to children and relationships.

We offer a free initial half hour consultation.

If we can be of assistance, we can be contacted on 0207 240 0521

Alison Green
Partner
Head of Family Law
Email: Alison.green@mackrell.com