Don’t (Let the Court) Be Blinded By Science

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In this article, Family Law expert David O’Brien discusses one of his cases that brought into question the sole use of hair strand testing as determinative scientific evidence and why the results of such tests might not always be as they first seem.

I recently acted for a 37-year-old mother in care proceedings in respect of her 4th child (BB). The mother’s three other children had been permanently removed from her care during two previous court cases.

Sadly, the mother had been addicted to amphetamines from the age of 16 and had a long history of alcohol misuse and mental health difficulties, with suicidal and self-harm ideations.

All of the mother’s relationships had been categorised by domestic violence and the police had been called to over seven “domestics” in the year prior to the mother discovering she was pregnant with BB. The mother was described not only as the victim but at times also the perpetrator.  In all of the incidents, she was described as either being intoxicated or under the influence of drugs.

The mother’s involvement in criminal activity had been extensive, resulting in several custodial sentences. Due to her behaviour and violent relationships, the mother had been alienated from her family for many years.

BB’s pregnancy was unplanned; however, the mother was determined this baby would not be removed from her care. She took stock of her life and set about making significant changes.  The mother:

  • Ended her violent relationship and did not resume/commence any relationship;
  • Organised a move to an address unknown to her partner;
  • Set about reducing her alcohol and amphetamine use. The mother’s case was that the last time she had taken amphetamines was the week before BB’s birth and completely stopped in the month following BB’s birth. BB was not born with drug withdrawal symptoms.

At birth, BB was made the subject to Police Protection based on historical concerns and was removed from the mother’s care. Care proceedings were instigated and the mother co-operated fully. The parenting assessment was positive and the contact notes highlighted the relationship between BB and the mother.

The psychological assessment recommended therapeutic work the mother should undertake. The mother proactively sought a counsellor and used savings to instigate the counselling. Subsequently her brother, from whom she was previously alienated, recognised the mother’s efforts to make positive changes and loaned the money to her for the counselling to continue.

There had been no further police call outs, anti-social behaviour or concerns as to the mother’s presentation at the numerous meetings, hearings and contact, which the mother attend religiously. Significantly, she had put on over 2 ½ stone in weight – clearly consistent with her not using amphetamines. Hair strand tests revealed no evidence of chronic excessive alcohol consumption; however, the hair strand tests for amphetamines were positive for every month following BB’s birth.

Initially it was considered that given the mother had been using amphetamines for many decades, there may have been residue in her system which would take time to come out. The experts agreed that any drug residue would have left her system within three months and certainly would not be present after six months. The test results covered a year on a month-by-month basis yet the results remained consistently high without any evidence of a reduction. Even more inexplicable, the number of drugs taken in the month of the test were consistently higher than the previous months.

We were able to persuade the courts to have a number of hair strand tests from both Alere and Lextox and these spanned a 12-month period. Whilst there were slight differences in the levels of hair strand tests, these were apparently explained by the fact the hair samples had been taken on different dates in the month.

The mother remained adamant that she had not taken any amphetamines since just after BB’s birth; she had moved to a new flat and confirmed she had never taken drugs in this home so there was no possibility that she would have been contaminated by any residue on any work surfaces. Due to her weight gain, she also had a whole new wardrobe so again would not have the substances on her clothes.

The Court allowed the instruction of an expert trichological report from a Dr Hugh Rushdon. The crucial issue was that currently the hair strand tests do not test for amphetamine metabolites. The presence of amphetamine metabolites is required to definitively prove the use of amphetamines.

The lack of a positive test for amphetamine metabolites cannot exclude the possibility of passive and external environmental influences on the hair strand testing. Dr Rushton quoted international research, which concluded:

“It is internationally accepted that routes other than direct intake can result in positive test results, even when the hair has been subject to vigorous washing and decontamination steps” Hair Analysis in Clinical and Forensic Toxicology (Chapter 3)

There is also no consensus on which decontamination procedures should be employed and neither Lextox or Alere provide an in-house validation statement for their decontamination methodologies when reporting their findings. For commercial reasons, Lextox and Alere will also not provide information about their decontamination procedures so it is impossible to assess the accuracy. Thus, Dr Rushton was able to cast doubt on their findings.

Needless to say, the Local Authority sought to rely on the expert evidence of Letox and Alere and their care plan was adoption, resulting in a 3-day clash of the experts. The court heard oral evidence from representatives of both Lextox and Alere, and Dr Hughes. All the experts agreed:

  • The hair strand test did not definitively prove the mother was taking amphetamines;
  • The tests could not exclude the possibility of external contamination;
  • It would be dangerous to rely solely on the scientific test result as these must be seen in the context of the broader picture, which would include the mother’s presentation, reliability, co-operation etc.

Where the experts differed was both Lextox and Alere were clear that, given the high concentration in the hair samples, the mother must have been using but Dr Hughes was able to provide the court with a seed of doubt as to the reliability of such tests.

In her Judgment, the Judge evaluated all the evidence and weighed the positive hair strand test with all the other evidence.

  • The mother’s presentation gave no indication that she was using and this was supported by her significant weight gain.
  • The mother was fully co-operative with all agencies and was completely reliable in her attendance at meetings and contact sessions.
  • The mother’s lifestyle had settled completely: no DV reports, incidents, criminality or anti-social behaviour.
  • The mother had been proactive in finding and self-funding her counselling, which she required to deal with underlying emotional problems. There mere fact she was able to save the money to pay for this counselling was again indicative of the mother not using as she would never have previously been able to save any money.
  • The fact the mother was able to reconnect with her family and they were prepared to fund the rest of her treatment further convinced the Judge that the mother was not using drugs.
  • Parenting assessment was positive.
  • Contact was consistently good and there was clear evidence of a positive attachment between the mother and BB.

The Judge relied on the Judgement of Hayden J in R (A Child – Care Order) 2017 EWCH  364 (Fam).  The facts of that case were that R was a 2 ½-year-old child who was removed from the mother’s care pursuant to police powers. The mother had used CHB whilst caring for R. The mother had a long, chronic history of substance misuse and agreed to R being accommodated pursuant to s20 pending care proceedings. The mother appeared to engage fully with the FDAC process and attended weekly drugs services and random drug tests were negative.

R was rehabilitated to the mother’s care; however, the day the Local Authority were to file their care plan, the latest hair strand tests (Alere) “showed” the mother’s use of amphetamines for the previous four months. The Local Authority changed their care plan to one for care and placement orders, which were granted.

On appeal, the mother also successfully applied to adduce fresh evidence from a Professor Kintz, an expert in hair strand testing. The evidence expressed fundamental disagreement with the expert evidence filed within the proceedings. The mother was successful in her appeal and the matter was listed for hearing before Hayden J.

Hayden J heard oral evidence from three experts from Alere, Lextox, and Professor Kintz. The disagreement between them focused entirely on the interpretation of the hair strand tests.

Hayden J was not prepared to regard the scientific evidence as determinative until he had the chance of evaluating the mother. His Lordship emphasised in his judgment that hair strand testing should “never be regarded as determinative of conclusive” and that expert evidence must be placed within the context of the broader picture, which includes social work evidence; medical reports; the evaluation of the donor’s reliability in her account etc. and are ultimately matters for the judge.

In our case, the Judge was impressed with the mother and her commitment to turn her life around and she ultimately rejected the Local Authority’s application for a Care and Placement Order and BB was successfully rehabilitated home to the mother.

Whilst science can be incredibly useful in proceedings, this proves that it should never be taken as an absolute.

Trinity Chambers offer legal advice and representation in Essex across all areas of Family Law, from Child Care Proceedings to Domestic Violence cases. If you need advice, call our clerks team on 01245 605040 or email clerk@trinitychambers.com.

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