Parents ‘losing their children’ over misinterpreted drug tests

Children are at risk of being wrongly removed from their parents’ care by the family courts because drug tests are being misinterpreted, the Bureau of Investigative Journalism (TBIJ) can reveal.

Life-changing decisions about whether a child should be placed in the care of a local authority can sometimes hinge on the outcome of hair strand 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 carries a risk of racial bias, according to campaigners and experts.

Paul Hunter, a leading expert in the field of drug testing, told TBIJ that “non-drug users are losing their children” due to the misreporting of hair strand test results.

Hair strand testing has been in use since the 90s and is now commonplace in the family courts. When a person uses a drug, such as cocaine, the drug’s presence within the bloodstream means that traces of it are incorporated into the hair as it grows. But crucially, the levels of drug present in the hair do not equate to drug consumption when looked at in isolation.

Data collected by hundreds of researchers over the last 30 years shows that numerous factors including race, hair colour, pregnancy and exposure to UV rays can all affect the amount of a drug absorbed in a sample of hair, as can the use of certain hair products. Results can even vary between individual hairs from the same person if taken from a different place on the head.

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 dyed or treated.

The issue of test results being misreported in court is the subject of an open letter sent on Tuesday to the Family Division of the high court. The letter, signed by lawyers, academics and campaigners, calls for urgent reform to how results are presented as evidence.

Sir Andrew McFarlane, president of the Family Division of England and Wales, told TBIJ: “Concerns about the accuracy and interpretation of drug tests are taken very seriously.” He said he had referred the issue to the Family Justice Council “for urgent consideration”.

‘Dangerous and wrong’

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 labs.

He told TBIJ that the biggest problem is the use of “cut-off levels”, the threshold above which a person is considered to be 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, hair treatments or environmental factors.

Nevertheless, many drug companies continue to use the binary system of cut-off levels to report test results.

This is despite discrepancies such as the fact that hair with darker pigmentation will absorb drugs more readily. This leads to a person who has black hair having dramatically higher levels compared to those with light brown or blond hair, even if they have identical drug use.

Furthermore, within the subsection of black hair there are huge variations based on race meaning you are more likely to lose custody of your child if you are of Afro-Caribbean, African or Asian descent.

One laboratory looked at the results of 3,000 samples where declared drug use or other forms of testing such as nail testing allowed them to cross-reference hair strand test results.

The results showed that 18% of those who hadn’t taken cocaine tested positive for the drug. In contrast, 60% of the samples taken from those who admitted regular cannabis use – most of them daily – tested negative.

“The danger is that ‘positive’ and ‘negative’ results are being treated at face value without room for wider interpretation,” said Hunter.

“Social workers and parenting assessors advising the courts will often equate the level of drug detected in the hair as evidence of drug consumption, which is dangerous and wrong.

“[The process] overlooks critical factors including where on the head the hair was taken, hair type and whether someone uses a dye or straighteners or shares a bed with a drug user.”

There is no official data, but Hunter says local authorities regularly report that 60%-70% of family law public cases where a child is considered to be at risk involves hair strand testing for substance misuse.

Systematic bias

The open letter sent to the Family Division states: “There is a compelling body of evidence that shows the processes used to interpret the results are vastly oversimplified and misleading.”

It calls for an end to “discriminatory” cut off levels and warns of the “risk of systematic racial bias”. It cites an article co-authored by Hunter and barrister Sarah Branson that states “you are more likely to lose custody of your child if you are African, Afro Caribbean or Asian based on drug testing alone, than if you are blonde or red haired”.

In another co-authored article they wrote that while cut off levels “may play a role in group testing – ie workplace and population studies – they should play no role in the justice system”.

It has been long-established that the use of hair strand testing in isolation should not be relied on. In a 2017 judgment, Mr Justice Hayden wrote that hair strand testing “should never be regarded as determinative or conclusive”.

One group of particular concern is pregnant women and new mothers because of the significant growth in the rate of infant care proceedings.

Child protection proceedings for newborn babies have risen from more than 1,000 in 2007/2008 to nearly 2,500 in 2016/2017.

“If you are 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 might have led to the concerns including substance use,” explains Kirsty Kitchen, head of policy at Birth Companions.

The charity, which supports women who experience disadvantage in the justice system, organised the open letter and formed the campaign, Taking A Strand along with barristers from 4pb and MSB Solicitors.

Kitchen says a risk averse approach to care proceedings coupled with a testing system marred with concerns of racial bias is stoking fear and distrust amongst birth families.

“A positive hair strand test can be the sole or most significant factor regardless of everything else. If that is not contextualised, or if it is unreliable, then we have a major issue,” she says.

“The stakes couldn’t be higher”

Environmental contamination

Lucy Logan Green is a family law barrister who has become concerned about the growing number of her clients who have questioned the accuracy of hair strand test results.

In one case a mother’s alleged ongoing cannabis use was one factor the court was considering when faced with whether her child in local authority care should be returned to her or placed for adoption.

Green’s client was adamant that she was abstinent from all cannabis use but the most recent hair strand tests returned positive results for low-level use. The court ordered that the child should be placed for adoption.

The barrister explained: “I wrote to the testing company to ask whether the low levels of cannabis detection could be caused by environmental contamination and they responded saying it could be. But that information hadn’t been provided within the company’s analysis.”

Green doesn’t know what difference it might have made had that been known at the outset.

She said: “The cut off levels can create a racial bias and the issues I encounter tend to be from black and mixed race clients telling me the results are not accurate. I don’t believe the large number of people raising queries can be ignored.”

The most dangerous time for clients, says Green, is if hair strand testing is ordered at the outset.

“At the start if you are considering the removal of a child there may not be much other evidence to go on. A positive drug test for an illicit substance can and absolutely does lead to removals.”

Change cannot wait

When doubts are cast over the results, it is an uphill battle to bring in an expert witness like Hunter as the courts do not consider the costs of the expert to be proportionate, explains Green.

“This is happening all over the country every day to people who don’t have recourse to bring in an expert to analyse the discrepancies between what they are reporting and what the results state.”

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

It cites a Court of Appeal judgment published in May in which Mr Justice Cobb concluded that another judge had been wrong to attach “such presumptive weight” to a set of hair strand test results that led them to order the removal of three children from their family. Cobb overturned the decision.

The case highlights that test results, when presented without context, can be highly misleading. The advocates involved were criticised 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 states: “Clearly, without urgent and comprehensive review of the way this evidence is presented and interpreted in court proceedings, there is significant risk that many more children will be wrongly removed from their families: a most devastating form of injustice.”

It argues that hair strand testing should be treated by the courts as expert opinion evidence.

Family lawyer Branson says change cannot wait. “We already know what needs to happen,” she says.

“The use of standardised cut off levels to interpret whether drugs found in the hair corresponds to chronic use or exposure needs to stop. Those numbers are not an answer. Instead of taking those results at face value, the court needs to instruct an expert to analyse what the levels of drugs found in the hair mean.”

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