Time and time again family lawyers involved within Children Act proceedings will come across a situation where one or both parties to the proceedings allege that the other is abusing drugs and / or alcohol and it then falls to the Court to try and ascertain what substances (if any) are being misused and, moreover, what impact that has on a parents ability to provide adequate care to a child. It is therefore important for the Court to have the clearest possible expert evidence.
For many years now hair analysis has been available to assist the Court by providing an indicator of a person’s use of drugs other than alcohol. However, hair analysis for the use of alcohol remains a fairly recent development in circumstances where the previous testing has used samples of urine or blood. Alcohol cannot be detected directly in hair and so the testing process focuses on two minor metabolites that are produced when the body metabolises alcohol. These metabolites are ethyl glucuronide (EtG) and fatty acid ethyl ethers (FAEEs). EtG, which is a water loving compound, is understood to be incorporated into hair mainly through sweat. FAEEs, which are fat loving compounds, are formed in the liver, blood and all other tissues and are understood to be incorporated into the hair through the sebum glands.
It is perhaps not surprising that the use of hair strand testing for alcohol in Children Act proceedings has now been the focus of guidance from the Court. This guidance comes from Mr. Justice Moylan in the case of London Borough of Richmond upon Thames v B.
In this public law case Moylan J was concerned about contradictory results that had been received from two separate companies who had been tasked with analysing a sample of the mother’s hair in order to provide an interpretation of alcohol consumption. One set of results indicated that the mother may well have consumed alcohol during a particular period of time and the other indicated that she had not. Clearly, it was necessary for the Court to get to the bottom of such a worrying contradiction.
The risk of false positives, false negatives and contradictory results is naturally going to be a concern for the Court especially when those results could easily have a bearing upon arrangements ultimately decided for the child / children who are the subject of proceedings. The lesson that comes from the case of London Borough of Richmond upon Thames v B and the guidance from Mr. Justice Moylan is therefore a clear reminder that hair strand testing for alcohol is still a developing science and, as such, should form part of a package of assessment and should not be taken in isolation as evidence of alcohol consumption or indeed abstinence.