Children are at risk of being wrongly removed from their parents’ care by the family courts because drug tests are misinterpreted, experts have warned.
Life-changing decisions about whether a child should be placed in the care of a local authority can sometimes depend on the results of strand tests, which are designed to show whether a parent has been using drugs or excessive alcohol.
But the process used to interpret the results can be misleading and carries a risk of racial bias, according to lawyers and campaigners.
Paul Hunter, an expert in the field of drug testing, tells The Bureau of Investigative Journalism that “non-drug users are losing their children” due to the misreporting of strand test results.
Hair strand testing has been used since the 1990s and is common in family courts. When a person uses a drug, such as cocaine, its presence in the bloodstream means that traces of it are absorbed into the hair as it grows. But most importantly, the levels of drugs present in the hair do not equate to drug use when viewed in isolation.
Data collected by hundreds of researchers over the past 30 years show that numerous factors, including race, hair color, pregnancy and UV exposure, can affect the amount of drug absorbed in a hair sample, as well as the use of certain hair. products. Significant levels of a drug can be found in someone’s hair because they share a living space with drug users. Meanwhile, low levels of a drug – or none at all – can be found in hair taken from a regular user – for example, if it has been colored or treated.
The issue of test results being misreported is the subject of a open letter Sent to the family division of the High Court on Tuesday. The letter, signed by lawyers, academics and campaigners, calls for urgent reform of how results are presented as evidence in court.
Sir Andrew McFarlane, president of the Family Division of England and Wales, said: “Concerns about the accuracy and interpretation of drug tests are taken very seriously.” He referred the issue to the Family Justice Council “for urgent consideration”.
Strand testing can be used in public law cases – where the local authority may have concerns about the impact of substance abuse on a child – and private disputes where one parent may raise a complaint about the other’s drug or alcohol use.
Hunter, technical director at Forensic Testing Service Ltd, is brought in as an expert witness to advise the courts in complex cases or when there are conflicting results from different laboratories.
He said the biggest problem is the use of “cut-off levels”, the threshold above which a person is considered a drug user. The cut-off levels were developed by the Society of Hair Testing almost 30 years ago, long before research established what is now known about the impact of influencing factors on drug absorption, such as hair colour, race and environmental factors.
Nevertheless, many drug companies continue to use the binary system of cut-off levels to report test results. This is despite differences such as the fact that hair with darker pigmentation will absorb drugs more easily. This results in a person who has black hair having dramatically higher levels compared to those who have light brown or blonde hair, even if they have identical drug use.
Furthermore, within the black hair subdivision there are large variations based on race, meaning that people of Afro-Caribbean, African or Asian descent are more likely to lose custody of their child.
“The danger is that ‘positive’ and ‘negative’ results are treated at face value with no room for wider interpretation,” Hunter said. “Social workers and parenting assessors who advise the courts will often equate the level of drugs detected in the hair as evidence of drug use, which is dangerous and wrong.”
The open letter sent to the family department said: “There is a compelling body of evidence showing that the processes used to interpret the results are grossly oversimplified and misleading.” It calls for an end to “discriminatory” cut-off levels and warns of the “risk of systematic racial bias”.
It has long been established that the use of strand testing in isolation should not be relied upon. In a 2017 verdictMr Justice Hayden wrote that strand testing “should never be regarded as determinative or conclusive”.
One group of particular concern is pregnant women and new mothers, due to the significant growth in the rate of infant care proceedings. Child protection proceedings for newborn babies rose from more than 1,000 in 2007/2008 to almost 2,500 in 2016/2017.
“If you’re a first-time mother, you have a lot to prove in a short time frame about your capacity to parent and your commitment to addressing some of the issues that may have led to the concerns, including drug use,” says Kirsty Kitchen, head of policy at Birth Companions.
The charity, which supports women experiencing harm in the justice system, organized the open letter and shaped the campaign, Taking A Strand, with lawyers from 4PB and MSB Solicitors.
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Kitchen said: “A positive hair strand test may be the only or most important factor, regardless of everything else. If it’s not contextualized, or if it’s unreliable, then we have a big problem.”
Family law attorney Lucy Logan Green became concerned about the growing number of her clients who questioned the accuracy of hair strand test results.
In one case, a mother’s alleged ongoing marijuana use was one factor the court considered when faced with the question of whether her child should be returned to her in local authority care or placed for adoption.
Logan Green’s client was adamant that she abstain from all cannabis use, but the most recent hair strand tests returned positive results for low-level use. The court ordered that the child be placed for adoption.
The lawyer explained: “I wrote to the testing company asking if the low levels of marijuana detection could be caused by environmental pollution and they responded saying it could be. But that information was not provided in the company’s analysis.”
Logan Green is one of the signatories of the open letter, copied to the Family Justice Board, the government body responsible for improving the family justice system in England and Wales.
It calls a Court of Appeal ruling published in May in which Mr Justice Cobb concluded that another judge was wrong to attach “such presumptive weight” to a set of hair strand test results which led to them removing three children from their family. Cobb reversed the decision.
The case highlights that test results, when presented without context, can be highly misleading. The attorneys involved were criticized for providing only a brief summary of the test results to the judge – and omitting the comprehensive interpretation and opinions provided by the expert in the body of the report.
The open letter argues that hair strand testing should be treated by the courts as expert opinion evidence and warns: “Without urgent and comprehensive review of the way this evidence is presented and interpreted in court proceedings, there is a significant risk that many more children wrongly removed from their families: a most devastating form of injustice.”
A spokesman for HM Courts and Tribunals Service said: “While decisions are ultimately made by the independent judiciary, it is extremely unlikely that a single hair strand test will result in a parent losing custody.”
However, Logan Green said if strand testing is ordered at the outset, loss of custody becomes a more likely outcome. “In the beginning, if you’re considering the removal of a child, there may not be much other evidence to go on. A positive drug test for an illegal substance can and absolutely will lead to removals.”
