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Unreliable forensic toxicology tests – next steps

Date:7 DEC 2017
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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.

Original news

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.

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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:

‘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 [2004] EWCA Crim 01, [2004] 1 All 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) [2009] EWCA Civ 59, [2009] 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:

‘[P]erhaps 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 – againl – to be placed back with the birth family may not be in their best interests. This has been underlined in W (A Child) [2016] EWCA Civ 793, [2017] 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 [71]).

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 [2010] EWHC 2903 (Fam), [2011] 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) [2012] EWHC 2548 (Fam), [2013] 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) [2017] EWFC 64, [2017] 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.

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