Exclusive Family Law: Court of Appeal guides on hair strand testing

In his latest exclusive article for family law and social workers, Family Law blogger John Bolch discusses the details from a case heard at the Court of Appeal and its important guidance upon the use of hair strand testing evidence in family cases.

The guidance was given in the course of an appeal by a mother in public law proceedings against a decision to authorise the removal of three of her children from the care of their maternal grandmother and maternal uncle.

Giving the leading judgment of the Court of Appeal Mr Justice Cobb said that the appeal had brought into focus once again the science of hair strand drug testing – its evidential value in context, its inherent reliability, and its limitations.

Alarming test results

The background to the appeal was as follows.

The case concerned four children, three girls and a boy, aged between 13 and 4, although the appeal focussed only on the three girls, the boy having moved to live with his father.

In July 2022, one of the girls (then aged four years old) was admitted to hospital exhibiting abnormal behaviour. Subsequent blood testing confirmed a likely overdose of topiramate, a medication used to manage and treat epilepsy and migraine which had been prescribed for her older sister.

Almost exactly one year later, the girl was once again admitted to hospital, this time suffering auditory hallucinations, tonic seizure activity, and loss of vision. It is said that the mother denied that she could have ingested any substance, but blood tests again confirmed high levels of Topiramate (a drug used to treat Epilepsy).

Following the intervention of the Local Authority, on or about 30 July 2023, the children were placed with their maternal grandmother.

In September 2023, the Local Authority applied for care orders and interim care orders in respect of all four children. An interim care order was granted on 12 October 2023, and has been continuously in place since then.

Bear in mind: hair strand testing and cut-off levels...

Court-ordered testing and toxicology

In October 2023, hair samples had been taken from each of the children and submitted for analysis by an independent toxicology laboratory.

On 23 November 2023, the laboratory provided hair strand test reports on the children, which revealed that all of them showed signs of passive exposure to Topiramate in the period up to October 2023. The reports recommended further testing of unknown additional compounds identified in the children's hair samples.

On 14 December 2023, the Court gave permission for the Local Authority to instruct the same laboratory to undertake further testing for additional compounds of the samples already collected from each of the children.

Addendum reports from the laboratory were filed on 29 January 2024, which indicated that the children had been passively exposed to a range of Class A drugs (including cocaine, ketamine and MDMA) and cannabinoids (compounds found in cannabis), throughout the testing period (October 2022 to October 2023).

The general summary section of the report in relation to the oldest child, for example, stated that she had had regular exposure to cannabis, cocaine and MDMA during the period from around February to late October 2023 (i.e., three months after placement with the maternal grandmother), although this was not entirely supported by the data.

Additional familial testing is undertaken

In January 2024 the Local Authority applied for and obtained orders to facilitate hair strand testing of the maternal grandmother, maternal uncle, and mother. However, the maternal grandmother and uncle refused to submit to the tests. The maternal grandmother later told the court that she was “concerned that the children's positive hair strand tests for illicit drugs are inaccurate and is worried that the same inaccuracies could affect her care of the children and employment.”

On 14 March 2024, the results of hair strand tests on the mother, undertaken by a second laboratory, were filed and served. This report revealed no evidence in the samples of any of the wide range of proscribed drugs over the period from the end of February 2023 to the end of February 2024.

The matter went before the court on 26 March. Describing the results of the January testing as “alarming”, the judge concluded that the children should be removed from the care of their maternal grandmother and maternal uncle.

The mother appealed.

Contradictory

Following the hearing, and in accordance with the Judge's direction issued on that day, further hair strand and nail testing of the children, and testing of the grandmother and uncle, was undertaken by Cansford Laboratories.

No evidence of Class A drugs was detected in any of the samples provided by the children covering the period March 2023 – March 2024. There was some evidence of cannabinoids in the samples taken from the three girls, but this was significantly diminishing over the months for which the samples had been provided, with no evidence detected in the most recent samples.

No evidence of drugs was detected in the samples taken from the grandmother and uncle. Thus, the January report of the first laboratory and the reports of Cansford Labs were contradictory.

The Appeal

One of the grounds of the mother’s appeal was that the judge had formed erroneous conclusions about the hair strand testing results, wrongly treating the general opinion of the first laboratory as to its findings (as she was encouraged and/or believed them to be) as presumptive of the children's exposure to Class A drugs while they had been in the care of the maternal grandmother.

Mr Justice Cobb agreed, and allowed the appeal. He said that the judge had been wrong to attach such weight to the results of the hair strand tests, for a number of reasons, including:

"that previous decisions had shone a light on recognised and inherent occasional anomalies in hair strand testing science which should be factored into judicial evaluation of this issue in all cases; and that the data contained deeper within each of the first two reports reviewed by the judge “painted in some, and highly material, respects a different (certainly more complex or nuanced) picture than the plain opinions/summaries offered by the experts in the narrative sections of the reports suggested”.

Guidance for advocates

In the circumstances Mr Justice Cobb gave the following guidance for advocates in cases involving hair strand testing.

1. Draw the Judge's attention to what the science can and cannot tell you.
2. Carefully examine the hair strand test reports in full; as far as it is thought helpful or appropriate to do so, they should distil their contents accurately so as to provide with Judge with a reliable summary, not just a rehearsal or précis of the general 'Summary' or 'Opinion' section;
3. Assist the Judge to consider the hair strand test results in the context of the whole of the evidence, including:
a) The statements of those who are alleged to have exposed the children to the drugs identified;
b) Other evidence (i.e., from observation) which may suggest drug use within the home;
c) Other evidence which may suggest that drugs are not used within the home;
d) The presentation of the children and the adults;
e) The history of the family generally.

This, he said, is all the more important, of course, in cases where the test results are in the lower range.

You can read the full judgment here.