Paul Hunter, Founder and a specialist in drug testing at FTS recently joined Sarah Branson, a barrister at Coram Chambers, to speak about the problems with current hair strand testing practice. 

In their 14th November lecture for the Family Law Bar Association, Paul and Sarah discussed how misinterpreted hair strand drug tests could result in children being wrongly removed from their parents. 

While Sarah noted that the underlying science of hair strand testing is sound, recent legal cases have highlighted the need for results to be treated with proper caution, with a 2017 case warning data should:

“never be regarded as determinative or conclusive” (London Borough of Islington v M and another [2017] EWHC 364 (Fam) (Hayden J). Yet too often, because hair strand testing results are presented with numbers, the results can take on a dangerous “pseudo-certainty”. 

Both argued that while test results can be considered factual evidence, courts need to treat the interpretation of those results as expert opinion evidence. They said a test result in isolation, without due consideration of the individual’s unique circumstances, is meaningless.  

The case of Re H (A Child: Hair Strand Testing) [2017] EWFC 64, [2018] 1 FLR 762 Peter Jackson J) underscored the need for factors such as hair colour, race, hair condition, pregnancy and body size, to be considered, given they could significantly influence findings. Even the sample location on the scalp has been shown to affect the level of drugs found. Yet, despite Re H noting that “it is at the interpretation stage where the results can be judged in the full context of the case and all influencing factors,” many hair strand testing providers do not do this. 

Paul also warned that many companies apply decades-old cut-off levels to their findings, only reporting results that are above these predetermined levels. This practice is problematic because it leaves results found below cut-off levels out of reports, thereby withholding relevant information from the courts. 

Moreover, the use of cut-offs is likely to lead to a higher number of Black and Asian parents having their children removed. This is because hair with more eumelanin (black and dark brown) absorbs drugs more readily than blonde or red hair. FTS never uses cut-off levels, always reports all findings and takes a detailed history from its clients. 

Given the myriad shortcomings of most hair strand testing, Sarah expressed that the legal profession needs to better understand how to challenge disputed results. FTS and Sarah Branson are currently working on resources to help lawyers challenge disputed test results, while template orders to instruct hair strand testing are available here. Sarah also emphasised the need for hair strand testing to be instructed properly from the outset, starting with a Court Order and subsequent Letter of Instruction.  

Would you like to learn more about the best practice of hair testing? Free training with FTS is available.