Family analysis: The Ministry of Justice (MoJ) has announced that it is treating some hair strand test results as potentially unreliable. Maud Davis, partner at TV Edwards LLP looks at what this could mean for proceedings involving children where there was a reliance on hair strand testing, and suggests next steps for family practitioners advising in this area.
The MoJ has released guidance for those concerned about potentially unreliable forensic toxicology tests. This follows police investigations into the potential manipulation of forensic toxicology test results at two private companies. The test results were used as expert evidence in England and Wales. The guidance includes examples which aim to help people understand where toxicology tests may have been used as part of decision making in court cases, and provides advice for those who believe their case may have been adversely affected by manipulated test results.
What concerns have been raised regarding the reliability of hair strand testing?
The UK government has published information regarding two companies whose test results may be unreliable—Randox Testing Services and Trimega Laboratories Limited. Randox have provided test results in criminal and coroners’ proceedings, while Trimaga has produced results for the family courts.
More specifically, Trimega’s results between 2010 and April 2014 have been called into question.
The MoJ has contacted relevant stakeholders, including the Association of Lawyers for Children (ALC), the Law Society, the Family Law Bar Association, and Resolution, to say that the police are reviewing data to try to identify cases with a sample where manipulation has occurred.
The Department for Education has also written to individual local authorities, asking them to review their records to establish whether they commissioned tests from Trimega, and to consider whether any action is necessary to fulfil their safeguarding responsibilities.
The MoJ has published more information here. It has advised the public to contact the relevant local authority, or their solicitor.
A new court form (application notice to vary or set aside an order in relation to children (drug and/or alcohol toxicology test after 2010) (C650)) has also been made available here. The Ministry of Justice has told stakeholders that:
‘this bespoke process is not intended to prevent any person from using any existing court processes, including applications to vary or discharge their order or their option to appeal, if they feel that is more appropriate to their case.’
However, anyone who applies outside the bespoke process will have to pay a court fee.
Importantly, at present, legal aid is only available ‘within the existing legislative provisions’, ie means- and merits-tested only legal aid, with a standard fee of (presumably) £86 for initial legal help funding, for initial advice.
The MoJ has stated that ‘the court process may need to be reviewed when more information about the types of cases and the number of people seeking to use this process is known’.
What are the implications for children proceedings where there was a reliance on hair strand testing?
In single issue cases, where the outcome depended on an individual’s drug and/or alcohol consumption, the reliability of testing could have been crucial—not only as to the test results themselves, but also the credibility of those tested. For instance, cases in which a parent had denied drug or alcohol use, but had positive results, could have undermined that parent’s credibility and thus the totality of that parent’s position.
The difficulty lies in the passage of time, and whether children have been permanently placed away from their parents. This was addressed following the appeal in R v Cannings  EWCA Crim 01,  1 Al ER 725. In Hansard (HC Deb 20 January 2004 vol 416 cc1215-23) the then Solicitor General, Harriet Harman, said:
‘In relation to actions arising from miscarriages of justice in family or care proceedings, the rule of the Children Act 1989—that any action taken should be in the best interests of the child—will, of course, prevail. There are two issues. First, in respect of mothers who want to set aside an order of adoption in order to have the child back, the best interests of the child are paramount. Secondly, however, some mothers might simply want a declaration that they were not in the wrong. Although it may not be in the best interest of a child who has grown up in another household to be given back, it should be made clear, where applicable, that the mothers have done nothing wrong. We must be utterly and acutely sensitive to all those points. In dealing with those issues, my right hon. friend the Minister for Women and Equality is taking the UN convention on the rights of the child and the rights of children to family life into account.’
Similarly, in Webster v Norfolk County Council and the Children (By their Children’s Guardian)  EWCA Civ 59,  1 FLR 1378, the judge deciding the care proceedings had decided the case on the available evidence available. Public policy considerations meant that the adoption orders were not set aside, despite a serious injustice to the birth parents. Wall LJ (as he then was) found that:
‘…perhaps most importantly, the status of the children has changed. Mr and Mrs Webster have lost parental responsibility for A, B and C, who are, as a matter of law, the children of their respective adoptive parents. No doubt this is a matter which, from their perspective, simply aggravates their sense of injustice, but it is a matter which is at the heart of the case.’
The difficulty also lies in the fact that children removed from their birth families are likely to have settled, and formed attachments, with their adoptive families. Removing them—again—to be placed back with the birth family may not be in their best interests. This has been underlined in W (A Child)  EWCA Civ 793,  2 FLR 31—a successful appeal by prospective adopters against a decision to refuse an adoption order and grant a special guardianship order to the paternal grandparents:
‘The repeated reference to a “right” for a child to be brought up by his or her natural family, or the assumption that there is a presumption to that effect, needs to be firmly and clearly laid to rest. No such “right” or presumption exists. The only “right” is for the arrangements for the child to be determined by affording paramount consideration to her welfare throughout her life (in an adoption case) in a manner which is proportionate and compatible with the need to respect any ECHR Article 8 rights which are engaged’ (McFarlane LJ, para ).
All this underlines the crucial importance of testing the evidence, including expert evidence—as made clear not only in R v Cannings , but also by:
- LB Richmond v B & W & B and CB  EWHC 2903 (Fam),  1 FLR 1345—the need for the exercise of considerable caution when hair tests for alcohol are being interpreted and relied upon)
- Bristol City Council v A and A, and SB and CB, and Concateno and Trimega (interveners)  EWHC 2548 (Fam),  2 FLR 1153—the validity of hair strand testing for drugs was unaffected but ‘erroneous expert evidence may lead to the gravest miscarriage of justice imaginable—the wrongful removal of children from their families’
- H (A Child: Hair Strand Testing)  EWFC 64,  All ER (D) 48 (Oct)—three different organisations used different thresholds (based on different numerical values) for their categorisation of results as being low, medium or high
How should family lawyers advise clients affected by this issue?
The first task is to decide if and how to identify clients who might have been affected. For instance, checking accounts records for payments to Trimega between 2010 and April 2014 (and later than April 2014, if there may have been a time lag between testing and payment) would be one method. However, there may be cases in which a client—including a child client—has been affected, but which would not be identified by that method. If solicitors are in doubt, they may need to contact all clients who had children cases during the relevant period.
Initial advice has to be cautious regarding what might be possible in terms of challenging existing decisions. As outlined above, unless the case turned on the results of drug and alcohol testing, it could be difficult to challenge a decision. Equally, if it is some time since children were removed from birth parents (or birth families), the court might decide that it is not in a child’s best interests to be moved yet again (see, for instance, W (A Child)  EWCA Civ 793,  2 FLR 31—a successful appeal by prospective adopters against a decision to refuse to make an adoption order and to grant a special guardianship order to positively assessed paternal grandparents).
Nevertheless, parents might want to seek declarations regarding findings previously made against them (especially if they have other children, or want to have more children).
The ALC has written to the MoJ to urge the government to fund non-means- and non-merits tested legal advice and assistance for any parents (or other person with parental responsibility) who have been parties to family proceedings in which drug or alcohol test results might have been manipulated. The ALC has also urged that legal aid—on the basis of merits only, without means testing—for representation should be available to parents (or others with parental responsibility) who have been parties to care proceedings, and who intend applying to vary or set aside an order.
It appears to be too late for any claims against Trimega, as the company is in creditors’ voluntary liquidation, with 25 August 2017 notified as the ‘last date for proving’ in relation to any creditors’ claims. However, such broader issues will have to be explored further, and specialist advice taken from civil practitioners.
How are the courts likely to approach an application to vary or set aside a children order based on drug or toxicology testing?
As mentioned above, public policy considerations can mean that adoption orders would not be set aside, despite a serious injustice to birth parents (Webster v Norfolk County Council and the Children (By their Children’s Guardian)  EWCA Civ 59,  1 FLR 1378). The court would also have to consider the child’s current circumstances, the child’s welfare being the court’s paramount consideration—it may not be in the child’s best interests to be removed from the family in which they had been (permanently) placed (W (A Child)  EWCA Civ 793,  2 FLR 31).
In cases where a child has been placed with family members (as opposed to being placed for adoption), or where a child is not yet placed for adoption, there might be greater scope for reunification, especially if the child’s relationships with their parents had been maintained through regular direct contact. Again, however, reunification would have to be in the child’s best interests. If there had been other concerns, beside drug or alcohol use, reunification might not be in the child’s best interests, even if test results could be shown to be unreliable.
It is highly likely that each case will have to be looked at on its own facts, which would support the argument for legal aid to be available on a merits tested-only basis.
Interviewed by Duncan Wood.
The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.