Drug Testing in Care Proceedings - Is it Reliable and can I Challenge my results?

If addictions become apparent, appropriate support can be sourced to assist the parent to make positive changes for the benefit of their child and to improve the standard of care provided to the child. It is widely accepted that a parent’s ability to care for a child is likely to be compromised when they are under the influence of drugs. However, some parents can be ‘functioning addicts’ but they will be unlikely to be able to provide a consistent standard of care to their child and are likely to require support in order to meet all of their child’s needs to a reasonable standard.

How are drug tests conducted and how reliable are they?

Parents often receive drug test results and dispute the findings. It is difficult to challenge scientific findings, particularly as a lay person who may not entirely understand the scientific contents of the drug test report. Therefore, we need to unpick how the findings are reached. Drug testing companies are usually not provided with any context to the proceedings or any of the Court bundle, they are simply instructed to collect a sample of hair (in most cases) and test over the course of 3 or 6 months to provide an overview of drug use or a month by month break down of use. The testing company will also only test for the drugs that they are instructed to test for.

Certain forms of drug testing are more reliable than others. For example, cannabis is notoriously difficult to test for as it does not metabolise in a way that is particularly reliable. Furthermore, it is often not possible for a testing company to confirm whether in the absence of certain metabolites, cannabis has been used by the parent or the parent has been passively exposed to the drug. The same can be said for cocaine use.

In 2017 the Ministry of Justice released guidance on the unreliability of drug testing in cases concerning children, following investigations of two drug testing companies who undertook testing. The cases at risk involved testing which took place between 2010 and 2014. Parents and children whose cases were affected by the testing undertaken were provided with the opportunity to appeal final orders.

Often the outcome of drug testing will in most instances not ‘make or break’ a parent’s case as it will not be the only issue that the Local Authority is concerned about but the results will add value to the proceedings and provide the Court with  information as to the ‘bigger picture’ and more importantly to the evaluation of risk that the child is subject to when in their parent’s care.  It can at times be helpful to challenge results or to request another set of testing later in the proceedings but successfully arguing the necessity of a challenge and for further spending of public funds for this purpose is not easy to achieve.

Generally speaking, if hair and blood samples are collected, the results are likely to be more reliable than if hair strand testing alone is used since the integrity of the hair can be affected by the use of hair dye/products and everyone’s hair grows at slightly differing rates. Testing companies have taken this into account, but the results will be read against a general benchmark and standard cut-off level for detection of substances and with the best of intentions this approach cannot be entirely accurate.

High Court recommendations when conducting drug tests and how the results are used in court

H (A Child: Hair Strand Testing) 2017 EWFC 64 is a leading case which concerned 3 different testing companies having conducted drug tests on a parent, the results of which varied. The testing companies were invited to Court along with independent toxicologists to assist the court’s understanding of the reliability of the science and reporting procedures, and to determine what guidelines the court might make for the use of such evidence in future care proceedings. The issues to be determined included the importance of variations in results, clarification of testing processes, and interpretation and classification of test results. The hair strand experts were accredited under ISO/IEC 17025, the highest international accreditation for laboratory testing and accreditation in this field. Sir Peter Jackson sitting in the High Court recognised the care that the testing companies took to produce an accurate analysis of the data and made the following key recommendations albeit this is not an exhaustive list:

• There should be reference to the measures applied to descriptors such as ‘high/medium/low’.
• A reminder that the test results should always be considered in conjunction with other evidence of drug use, particularly where the results are in the low range.
• Explanation of the ‘cut-off’ levels used and the relevance of results that fall below the relevant cut-off level.
• A clear definition of terms used so as to enable a comparison of reports from multiple sources to be made.
• The inclusion of expressions of probability in the reports which reflect the threshold of the family court, with conclusions drawn to reflect the balance of probabilities.
• An analysis of factors to be considered where there is reason to believe that environmental contamination may be an issue, in order to help the court make an assessment between the possibilities of use and contamination.
• An ‘essential information’ sheet to accompany the report where it is considered necessary to provide additional information relevant to the particular report to make it easier to assimilate.
• An explanation that, when it is known that testing has been carried out by more than one organisation, the findings may vary as between different experts due to normal testing variables.

What does this mean?

In the Family Court, matters are determined on the balance of probabilities, therefore a testing company need only comment on whether an individual is more likely that not to have used the drug(s) tested for over the time period stipulated. At times this will not be a straight forward task and where results are only just above the cut-off threshold and use is denied by the parent, the conclusions of the testing company may well be worth challenging on behalf of a parent. This becomes particularly more important if it is a single-issue case for which the outcome of the testing is crucial to the outcome for the child. A challenge will therefore need to be considered on a case by case basis taking into consideration the other factors of the case and the weight that the Court is likely to apply to the test results.

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