Fail to prepare, prepare to fail. It’s a motto that definitely applies to Family Law cases: inadequate preparation for a client’s court date could lead to the wrong decision being made in a child custody case.
Hair strand testing is being used more and more frequently in the Family Courts, and while it’s an incredibly accurate way of establishing an individual’s drug use (or lack thereof), it’s only accurate when it’s done right. So, to avoid the risk of your hair test results being thrown out as inadmissible, here’s a checklist to ensure you’re fully prepared.
1. Obtain court permission
Some Family Law cases will require court permission for you to conduct a hair test in the first place and to use the results of such tests in court. This will depend on whether your case is private or public.
In a private family law case, the parents or guardians will be involved in a custody dispute, or be arguing over decisions that need to be made relating to the child(ren). In a public family law case, local authorities will have been brought in to consider whether the child needs to be removed from the parents or guardians, and placed into care.
- You may like: What do drug levels of the system mean in reality?
In a private law case, any hair testing will require an agreement between the parents or guardians involved. But in a public law case, the hair test can only be conducted with the permission of the court: family lawyers must apply to the court to conduct the test, and the judge will order it, if agreed.
Simply having permission, where needed, to conduct a test, though, does not automatically mean the results can be used as evidence. In both private and public court cases, you’ll need to obtain the permission of the judge to use the results in legal proceedings. Without this permission, the results will not be considered admissible in court.
2. Request a witness statement
While it’s likely that the client’s lawyer will be present when their hair sample is taken (and therefore able to validate the legitimacy of the process), they won’t be present when the sample is transported to the lab and analysed.
That’s why you should request a witness statement, to enable you to verify the chain of custody of the entire hair testing process.
A witness statement will document the whole process, including when the sample was collected, when it was transported to the lab, and when it was analysed. It will also state the results and what they mean, according to the laboratory’s interpretation.
Without this witness statement, it would be impossible for a family lawyer or the family court to ascertain whether a hair strand test has been conducted reliably and according to stringent protocols.
3. Let the lab interpret the results
It’s inevitable that a donor will want to know their test results immediately when they return - and they’ll often be quite nervous, even if they know they’ve got nothing to worry about. After all, the decision of the family court could rest on the results of the test.
As a result, family lawyers can be tempted to give their own interpretation of the results. Our advice? Let the lab use their experience and knowledge to provide the necessary interpretation.
It may be that the test results report that every substance tested for is “not detected”. If a family lawyer relays this to the judge in court, they would inevitably accept this as gospel. However, the results may not be this clear-cut: there may be mitigating and aggravating factors to be taken into account.
The donor, for example, may have bleached or dyed their hair to decrease the amount of a drug that can be detected. The confirmed presence of a drug may be due to external contamination, rather than actual usage. For reasons like these, lawyers should avoid taking the interpretation of hair test results into their own hands, and instead leave it to the lab and its trained clinicians.
By obtaining court permission to use hair testing results as evidence, ensuring you have witness statements in place and avoiding the temptation to interpret the test report yourself, you’ll avoid the risk of having it thrown out of court, or of inaccuracies leading to the wrong, life-changing verdict. Do it right, though, and you’ll be rewarded with reliable evidence and an improved care outcome.
Ensure your next client hair test is as reliable as possible with our Ultimate Checklist for Organising a Hair Drug Test.