Children are being taken away from their parents because drug tests were misreported, experts say Family law

Children risk being unfairly removed from their parents’ custody by family courts because drug tests are misinterpreted, experts warn.

Life-changing decisions about whether to place a child in the care of a local authority can sometimes depend on the results of hair-streak tests designed to show whether a parent has consumed drugs or excessive alcohol.

But the process used to interpret the results can be misleading and risks racial bias, according to lawyers and activists.

Paul Hunter, an expert in the field of drug testing, told the Bureau of Investigative Journalism that “non-drug users are losing their children” because hair strand test results are misreported.

Hair strand testing has been used since the 1990s and is common practice in family courts. When a person uses a drug such as cocaine, its presence in the bloodstream means that traces of it are incorporated into the hair as hair grows. What is crucial, however, is that the amounts of drugs present in the hair, when viewed in isolation, cannot be equated with drug use.

Data collected over the past 30 years by hundreds of researchers shows that numerous factors, including race, hair color, pregnancy and UV radiation, can affect the amount of a drug absorbed in a hair sample, as well as its use certain hair products. Significant amounts of a drug can be found in a person’s hair because they share living space with drug users. Meanwhile, small or no amounts of a drug may be found in hair taken from a regular user – for example, if it has been dyed or treated.

The issue of misreporting test results is the subject of an open letter sent to the Family Division of the Supreme Court on Tuesday. The letter, signed by lawyers, academics and activists, calls for urgent reform of the way 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 has referred the matter to the Family Justice Council “for urgent consideration.”

Hair 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, as well as in private dispute cases where one parent makes a complaint about the other’s drug or alcohol use can.

Hunter, technical director at Forensic Testing Service Ltd, is called in as an expert witness to advise the courts on complex cases or where there are conflicting results from different laboratories.

He said the biggest problem was the use of “cutoff points”, the threshold at which a person is considered a drug user. The limits were developed by the Society of Hair Testing nearly 30 years ago, long before research established what is now known about the effects of factors such as hair color, race and environmental factors on drug absorption.

However, many pharmaceutical companies continue to use the binary system of limits to report test results. This is despite discrepancies such as the fact that hair with darker pigmentation absorbs medication more easily. This results in people with black hair having significantly higher levels than people with light brown or blonde hair, even if they have the same drug use.

Additionally, within the black hair subgroup, there are large disparities by race, meaning that people of African-Caribbean, African, or Asian descent are more likely to lose custody of their child.

“The danger is that ‘positive’ and ‘negative’ results are taken at face value, with no room for broader interpretation,” Hunter said. “Social workers and educational evaluators who advise the courts often equate drug levels found in hair with evidence of drug use, which is dangerous and wrong.”

The open letter to the family department says: “There is convincing evidence that the processes used to interpret the results are overly simplistic and misleading.” It calls for an end to “discriminatory” limits and warns of the “risk of systematic racial bias “warned.

It has long been known that the use of hair strand tests in isolation should not be relied upon. In a 2017 ruling, Judge Hayden wrote that hair strand tests “should never be considered decisive or conclusive.”

A group of particular concern is pregnant women and new mothers, as the number of infant care procedures is increasing significantly. The number of child protection cases for newborns increased from over 1,000 in 2007/2008 to almost 2,500 in 2016/2017.

“When you become a mother for the first time, you have to demonstrate a lot in a short space of time about your parenting skills and your commitment to addressing some of the issues that may have led to the concerns, including substance use,” says Kirsty Kitchen, head of policy at Birth Companions.

The charity, which supports women disadvantaged in the justice system, organized the open letter and launched the campaign. Taking A Strand, alongside lawyers from 4PB and MSB Solicitors.

Kitchen said: “A positive hair strand test may be the single or most important factor, independent of anything else. “If that is not contextualized or is unreliable, then we have a big problem.”

Family lawyer Lucy Logan Green is concerned about the growing number of her clients questioning the accuracy of hair strand test results.

In one case, a mother’s alleged persistent cannabis use was a factor considered by the court when faced with the question of whether her child in municipal care should be returned to her or put up for adoption.

Logan Green’s client insisted on abstaining from all cannabis use, but recent hair strand tests returned positive results for low use. The court ordered the child to be released for adoption.

The lawyer explained: “I wrote to the testing company asking whether the low detection levels for cannabis could be caused by environmental pollution and they replied that it could be the case. However, this information was not provided as part of the Company’s analysis.”

Logan Green is among the signatories of the open letter, which was copied to the Family Justice Board, the government body responsible for improving the family justice system in England and Wales.

It cites an appeals court ruling released in May in which Judge Cobb concluded that another judge had wrongly given “such presumptive weight” to a series of hair strand test results that led to her removing three children her family ordered. Cobb reversed the decision.

The case highlights that test results, when presented without context, can be highly misleading. The advocates involved were accused of providing only a brief summary of the test results to the judge – and omitting the expert’s comprehensive interpretations and opinions from the body of the report.

The open letter argues that hair strand tests should be treated by the courts as evidence for expert testimony and warns: “Without an 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 will be affected. “Unjustly removed from their families: a most devastating form of injustice.”

A spokesperson for HM Courts and Tribunals Service said: “While decisions are ultimately made by the independent judiciary, it is extremely unlikely that a single strand of hair test would result in a parent losing custody.”

However, Logan Green said a loss of custody would be more likely if a haircut test was ordered from the start. “If you are considering removing a child, there may not initially be much other evidence to draw on. A positive drug test for an illegal substance can and will definitely result in deductions.”