Hair today

Applications for childcare proceedings by local authorities have shot up by over a third in the past 12 months, with figures from Cafcass, the children and family court advisory service showing a new high was reached in March when 832 applications were made nationwide.

Most put the surge down to the 'Baby P effect', prompting over-cautious local authorities to leave nothing to chance when weighing up applications for childcare. However, this conceals an underlying trend that has little to do with the deliberate physical abuse of a child.

Long-term substance misuse '“ i.e. drugs and alcohol '“ among parents is not a new problem in the UK, but it is an escalating one. The National Addiction Centre claimed recently that more than three million British children now live in households where at least one of the parents is a binge drinker, and one million are living with at least one parent who abuses drugs. Many of these children end up in care, with others either living with one parent or extended family.

The UK's Public Law Outline identified that children placed in temporary care for long periods are considerably more likely to end up in prison, on drugs and/or pregnant.

The subsequent reform recommendations asked that cases involving child residence be fast tracked, putting heavy emphasis on the need for rapid assessment of alcohol and drug abuse by the parents.

The rise of hair analysis

Fortunately the PLO recommendations coincided with sufficient advances in technology to mean that hair alcohol and drug testing became rapidly commercialised and widely available throughout. The process for deciding whether someone's alcohol or drug problem prevents them from doing their job or caring for a child no longer relied on a doctor's surgery, but a purpose-built substance abuse testing lab. Alcohol or drug tests are now requested in about a third of all care cases and, when they do, they quite often involve both parents or more than one guardian providing hair samples. According to our research, conducted among 300 delegates at the recent Resolution annual conference, two thirds of family lawyers have used hair testing in their cases and the majority who haven't are considering using it. Almost all (92 per cent) of those who have used hair testing said it helped in reaching an outcome for their cases.

Testing works both ways of course, not just to prove a parent '“ usually the mother '“ is unfit to look after a child but also to persuade a court that their addiction is behind them and they are on the road to recovery. Certainly our company ethos is to focus on getting children out of temporary care and into 'stable' homes as soon as possible. Common sense dictates that keeping a child within its family unit is paramount with public and family law practitioners becoming the driving force in persuading local authorities to try to avert the need for court proceedings. From one-off 'pre-action meetings' to regular hair tests for borderline parents, local authorities are coming round to alternatives forms of mediation. For a mother with history of crack cocaine abuse, for example, the assessments that would normally be associated with a court hearing might cost ten times the amount it would be to invest in a detox programme followed by a hair test every few months to monitor any relapses.

Which test is best?

Hair testing for drugs and alcohol has come a long way in the four or five years it has been used by courts to determine levels of abuse, but where it sits on the broad spectrum of evidence '“ and what weight can be applied to it '“ inevitably has its limitations. As well as different blood tests, such as liver function and carbohydrate deficient transferrin tests, there are different types of hair test. Half of the Resolution conference lawyers were unaware of there being more than one type of hair alcohol test and that choosing the right one '“ or combination of them '“ can have an impact on the outcome of a case.

Of the two main types of hair alcohol testing, it has been technically possible to measure FAEEs (fatty acid ethyl esters) in hair since 1993, whereas the techniques for measuring the relevant range of EtG (ethyl glucuronide) is still in relative infancy. Both markers are deposited in hair during chronically high alcohol consumption, but are analysed using different methods. FAEE markers are formed in blood and tissues, while EtG is formed almost exclusively in the liver and deposited into hair mainly via sebum (EtG is the chemical that makes someone 'reek of alcohol'). So, by combining the two types of testing, they complement each other in an optimum way and the accuracy of the combined results increases beyond all doubt with no false positives or false negatives to contend with. This combined method may be more expensive, but, as well as providing unequivocal evidence, it has been reviewed with the highest possible accolade by a 'consensus' from the Society of Hair Testing, represented by top scientists from 23 countries.

Similarly, hair drug testing has advanced to better serve the legal profession in becoming speedier and, crucially, more legally defensible. The latest technique '“ tandem mass spectrometry '“ means a single hair sample can now be tested for multiple drugs simultaneously rather than one drug at a time in the normal two-stage (screen and confirmation) procedure. This means one lab technician, using one set of equipment and one lock of hair can return all results in as little as 36 hours. This smashes the tradition turnaround time of a week or more and is adaptable enough to include newly reclassified synthetic drugs such as Mephedrone that would have otherwise been costly, time consuming and require an additional hair sample to analyse separately.

Clear cut results

Another area of ambiguity is how test results are interpreted. There is seldom a black and white case and among the parties involved '“ from the donors to social workers to justices '“ there is often a wide variety of knowledge and understanding. A negative test result does not always mean the donor is totally abstinent but more a case of falling below a socially and medically acceptable threshold. So, ease of interpretation is an industry-wide issue that is being tackled through a number of initiatives spearheaded by the testing companies themselves. New graphical representation of user habits can now be provided for each case to accompany, where necessary, expert witness statements. The graphs show the consumption of each drug type over a period of time, therefore making it clearer to see where a person has formed a habit or is abstaining. Trimega, along with 4 Brick Court's Jacqui Gilliat '“ who specialises in children's law and edits the Bloody Relations blog '“ produces podcasts and CPD courses in an effort to better explain the evolution of hair testing and the significance of results. This has even evolved into an iPhone app to enable questions to be fielded direct from court and, if instructed, speed up case handling times.