Failed drug test in family law cases R (A Child - Care Order)  EWHC 364 (Fam)
R (A Child - Care Order)  EWHC 364 (Fam)
Judgment in a re-hearing in care proceedings in relation to a child, whose mother accepted that she had a long, chronic history of substance misuse. The two central issues were: (i) the interpretation of hair strand test results, and (ii) resolution of the child's welfare.
R, who is now 2½ years old, was removed from his mother's care, pursuant to police protective powers; Mother had used GHB whilst caring for R and received a police caution for child neglect. Mother had also used illict drugs whilst pregnant. Upon the local authority ('LA') issuing an application for an emergency protection order, Mother agreed to R being accommodated pursuant to section 20, pending the issue of care proceedings. When issued, the care proceedings were allocated to FDAC, where at the first hearing Mother conceded interim threshold and did not oppose the plan for an ICO and foster care.
Throughout the majority of the proceedings Mother appeared to engage fully with the FDAC process, she was attending a weekly drugs service and attending Narcotics Anonymous daily. A system of weekly oral swabs/urine tests for drugs alongside hair strand testing, intensive substance misuse treatment and psychological treatment were proposed by FDAC and agreed by Mother. Mother commenced therapeutic work (as Dr Hallstrom reviewed Mother and concluded that there was clear evidence that she seemed to suffer from an underlying emotionally unstable personality disorder). Standard drug testing (urine and oral fluid) had not detected drugs or alcohol. Hair strand test results in July 2015 (covering the period December 2014 – June 2015) indicated the reducing presence of crystal meth and a cocaine metabolite. FDAC analysed the results as either being capable of being consistent with Mother's self reporting that she last used drugs at the end of January 2015 or capable of representing on-going crystal meth use between December 2014 and March/April 2015. FDAC concluded that Mother's self-reporting was the more likely explanation in light of her positive engagement in services.
On 10th September 2015 R was rehabilitated to Mother's care, as she had been abstinent from drugs for 8 months, had had not contact with DS (R's father), had engaged with the FDAC process, reconnected with her own mother and had successfully begun the process of addressing the reasons behind her drug use. All weekly urine drug screens and oral fluid tests had been negative for 'all street drugs'.
The LA's final evidence was filed on 9th October 2015. That same day the latest hair strand drug results were made available and upon Mother's application Mr Stephen Ramsay based at Alere Toxicology in respect of the results prepared an expert report. The results supported Mother's use of methamphetamine, from the middle of June to middle of September 2015; consistent with Mother using cocaine from the middle of June to the middle of August 2015 and; supportive of Mother using MDMA between the middle of June and the middle of July 2015. Mother denied any illicit drug use since the end of January 2015 and disclosed to the FDAC team that she had met with DS at his home on 22nd June 2015 and that she had seen a meth pipe and believed he must have spiked her drink. Mother later disclosed she had been meeting with DS for casual sexual encounters. FDAC identified DS in clear and unambiguous terms to Mother as a real threat to her continued abstinence from drugs. Mother accepted that she met with DS the morning that R was returned to her care and again 9 days later. On 9th October 2015 Mother agreed to R being removed from her care to foster care.
The FDAC team's final report concluded that the most recent hair strand test results called into question whether Mother had in fact been abstinent from January to April 2015 and concluded, when comparing the tests, that it more likely that she had not save for a short two month window between April and May 2015. The FDAC team were also concerned at the lack of insight showed by Mother in respect of her relationships with men who were themselves abusing drugs. They recommended further therapeutic assessment estimated to take 12 to 18 months. On 11th November 2015 Mother accepted that she smoked £50 of crystal meth. Mother ceased her engagement with FDAC and therapy. At the final hearing the LA's applications for care and placement orders were granted.
Mother issued an appellant's notice (February 2016) and an application to adduce fresh evidence from a Professor Kintz, an expert in hair strand drug testing (March 2016). The evidence expressed fundamental disagreement with the expert evidence filed within the proceedings. In April 2016 King LJ granted Mother permission to rely on the fresh evidence from Professor Kintz (see:  EWCA Civ 470). In June 2016 Black and King LLJ granted Mother permission to appeal and allowed her appeal.
Rehearing before Hayden J
Mother conceded that the s.31(2) threshold criteria were met. The rehearing focused on two central issues: (i) the determination of the conflicting hair strand analysis, and (ii) resolution of R's welfare interests. During the course of the rehearing proceedings directions were given for further hair strand tests (by Lextox Drug and Alcohol Testing) and a psychiatric assessment of Mother. Running alongside these assessments urine testing was undertaken, covering 10th August 2016 to 1st October 2016, the conclusions of which were summarised as 'detecting no illegal substances'. The hair strand test results provided by Lextox spanning the period between March 2016 and mid September 2016 revealed methamphetamine detected above the SOHT ('The Society Of Hair Testing') recommended cut off level in every section of hair tested. Metabolite amphetamine was also detected but only in the oldest section of hair tested.
Hair strand testing
The court heard from three experts: Mr Stephen Ramsey BSc, Reporting Manager for Alere Toxicology; Ms Angharad John, Letox Drug and Alcohol Testing and Professor Pascal Kintz. It was common ground amongst the experts in this case that, as with e.g. blood, urine, saliva, hair is a biological matrix that can be effectively used to carry out laboratory drug testing in humans. It was also agreed that there were no deficiencies in analysis by any laboratory. The 'apparent disagreements' focused entirely on the interpretation of the results. An experts meeting took place on 15th November 2016 at which parameters of agreement and disagreement on the analysis of the results were prepared. In short, it was Professor Kintz who disagreed with his colleagues as to the interpretation of the tests.
The technical process in respect of drug incorporation into hair (see paras 29-31) was uncontentious between the experts. The experts also agreed that (i) there are recommended 'cut offs' to identify drug use, (ii) that the SOHT Guidelines apply to cases of chronic drug use, and (iii) that there is no standardised guidance to address isolated exposure or intermittent use.
The second set of 2015 hair strand testing comprising three hair sections, tested negative for amphetamine, benzodiazepine group analytes and cannabis group analytes, but positive for a cocaine group analyte, methamphetamine group analytes and an opiate group analyte. One of the experts constructed a table, which is set out in the judgment at paragraph 42, showing the results.
Dr Ramsay (with whom Ms John agreed) concluded that the results were consistent with the use of cocaine by Mother within the parameters of the time span covered by the two oldest hair sections i.e. mid June to mid August 2015. He formed this conclusion on the basis that a cocaine metabolite (here Benzoylecgonine) detected along with the presence of cocaine itself, indicates a result consistent with its use. In respect of methamphetamine, this was detected in each of the three hair sections. The metabolite of methamphetamine, amphetamine, was not detected in the hair tested. However the concentrations of methamphetamine were so significant, in Dr Ramsey's view, as to explain the absence of the expected metabolite. The breakdown of the 'parent drug' i.e. methamphetamine, was at such a gradual rate that it was more consistent with a decreasing use of methamphetamine in the relevant time period.
The fundamental difference of approach between Mr Ramsey (supported by Ms John) and Professor Kintz arose from the SOHT published guidelines (based on research Cooper, Kronstrand & Kintz Forensic Sci Int 2012) for testing for drugs in hair strands. These guidelines appear to state that a positive test requires at least two of the following indicators to be present: concentration in the parent drug, greater than the positive cut off level; identification of the metabolite; the presence of some specific minor metabolites, which are highly suggestive of use of the parent drug. (para 46)
Ms John and Mr Ramsey do not require these criteria to be met with the same rigidity of approach and look more broadly at the rate of breakdown of the metabolites and interpret the 'Guidelines' purposively as guides to interpretation and 'not a straight jacket of rules.' Professor Kintz considers that the rules are to be interpreted strictly and inflexibly, anything less he considers does not provide strong enough analytical data to establish abuse. The test results, he considered, 'could' indicate that the mother had been in an environment where drugs were being used. He opined 'it is impossible to conclude that the subject has deliberately used drugs of abuse (cocaine, methamphetamine and MDMA)… although I cannot firmly state that [M] did not use any of the detected drugs'. (para 47)
Taking the view that Benzoylecgonine (0.13ng/mg) (i.e. higher than cut off level) plainly required some explanation, His Lordship found that Professor Kintz did not proffer a reasoned response, nor did he really engage with the actual findings, instead he approached this with a 'strong insistence on a clear line principle of interpretation', ie: a reading below the cut off rate for the parent drug can only ever count as a negative finding. (para 50) Mr Justice Hayden favoured the interpretative reasoning of Mr Ramsey and Ms John and found it to be logically attractive and persuasive. Professor Kintz, in His Lordship's view, did not engage with it and offered no counter analysis. (para 51)
From the laboratory results in 2015, Mr Ramsey could not say other than there had been definite contact with MDMA. He observed that the low concentration of MDMA could result in lower concentration of MDA (the metabolite) and that it was therefore possible that insufficient MDA had been metabolised, however he explained that it equally compatible with external contamination. Mr Ramsey's view (endorsed by each of his colleagues) was that the contamination would have been more than merely casual contact as the methamphetamine was found in three sections of hair and thus indicative of repeated exposure.
In the course of cross-examination by R's advocate Professor Kintz was taken to the results from Lextox (Ms John's laboratory), showing the recordings for amphetamine metabolite (September 2016). Whilst not incorporated into the original Lextox report, due to the fact that the results were below the 0.20ng/mg cut off, the exercise made it clear that, as the metabolite was found in all sections of the hair, it met Professor Kintz's own criteria to establish a finding of ingestion. Thus a consensus was established, amongst each of the scientific experts, that there had been ingestion of drugs. (para 54)
At the conclusion of the scientific evidence LA's plan had 'crystallised' in that they were seeking a Placement Order, with a view to adoption. His Lordship was not prepared to regard the scientific evidence as determinative until he had the chance to evaluate the mother. His Lordship emphasised in his judgment that hair strand testing should 'never be regarded as determinative or conclusive' and that expert evidence must be placed within the context of the broader picture, which includes e.g. social work evidence; medical reports; the evaluation of the donor's reliability in her account etc, which are ultimately matters for the Judge to evaluate. (para 32) To this end, His Lordship refers to: (paras 33-35)
- London Borough of Richmond upon Thames v B, W, B and CB  EWCA 2903 (Fam)  1 FLR 1345, in which Moylan J provided guidance as to the use of hair strand testing for alcohol in Children Act proceedings, and reminds experts who produce reports within Children Act proceedings of their duties under the Practice Direction 'Experts in Family Proceedings Relating to Children' (2009) 2 FLR 1383 (now PD 25B).
• Re F (Children) (DNA Evidence)  All ER (D) 171, in which His Lordship highlighted the danger inherent in elevating technical evidence of this nature (in blood testing rather than hair strand) to a status where it is regarded as determinative and commented upon the importance of framing expert instructions, where possible, in the context of a factual matrix.
Whilst acknowledging some positives in respect of the Mother, His Lordship found that Mother had put her needs above R's needs, for example in allowing DS to the home the day R was rehabilitated to her care. He also found that Mother had directly put herself in danger and had engaged in risk taking behaviour and that she had little sense of her own responsibility for her present predicament. His Lordship had 'no doubt' that Mother is highly motivated to care for her son, and was also satisfied that she has made some concerted attempts to address her dependency on drugs. However, he found everything that she said concerning DS was implausible and noted that DS has been inextricably connected to her drug usage. Ultimately, the connection between the positive drug tests and his role in Mother's life in late summer 2015 was 'impossible to ignore' and His Lordship felt that this was the feature that unified the various strands of the evidence and provided the most rational explanation. (para 75)
His Lordship recognised that Mother had access to a wide and impressive range of resources and that she had been able to secure support that others would have been less able to achieve, but 'ultimately her persistent inability to engage openly with the various agencies leads both the Local Authority and R's Guardian to conclude that M is unable to meet the needs of her son in timescales which are in anyway reconcilable with his own.' After consideration of Re B (A Child)  UKSC 33 and Re B-S (Children)  1146, His Lordship concluded that 'there is no practical alternative to a plan for adoption.' (paras 77-80)
In cases where detailed data have to be considered and debated, His Lordship took the view that this was most likely to be achieved effectively by a face to face, round the table meeting of the experts involved. This is not to discourage experts from other jurisdictions being instructed, but with the intention of emphasising the importance of ensuring that there is proper exchange of information and efficient meetings of experts. In this case Professor Kintz was outside of the jurisdiction. (para 55)