On 21 November the Ministry of Justice and Her Majesty’s Courts and Tribunal’s Service issued advice for those concerned about potentially unreliable forensic toxicology (drug) tests in some family cases. The advice also relates to criminal trials, but this post looks at the issue for people who have been involved with a family court case and who are worried that the test results may have been dodgy.

We wrote about this issue in May here : Police investigating drug testing lab that carried out tests for the Family Court. At that stage it was unclear whether or not family cases were affected, but it was clear that the company involved (Randox – also known as Trimega) is (or was) a well known name amongst family justice professionals, as it was one of the main companies used to carry out tests for drug and alcohol use. We said then that we expected when things became clear a statement would be issued – and that is what has now happened.

Here is what we said in May about the practical impact of these issues if they did affect drug test results in family cases :

Will parents be able to get their children back?

That is a very difficult question to answer, for a number of reasons :

• Just because there is a problem with some test results doesn’t necessarily mean it will invalidate all of them. At the moment it sounds as if the police are broadening their enquiry to see if family cases are affected, but they may turn out to be fine.

• Many cases are much more complicated than just drug use, and even those that are just about drugs mostly do not hinge on the result of one drug test, but depend upon a parent being able to establish and maintain abstinence from illicit substance misuse and to demonstrate a good prospect of keeping that up in the long term. Even parents who have a blip are sometimes able to keep their children in their care, as relapse is a recognised part of the process of recovery. So, the fact that a drug test result turns out to be wrong or unreliable doesn’t automatically mean the decision about a child is wrong too. It will depend on how central (or not) the drug test result was to the case.

• Even if a decision turns out to have been wrongly made because of the court being given wrong information it doesn’t mean it is going to be possible to unpick it. Some decisions are probably irreversible. To take a very sad example, in the Webster case, parents who were thought to have harmed a child were ultimately vindicated, but by the time this all happened their children had been adopted and the adoptions could not be overturned. Even where a child has not been adopted but remains in foster care, if the court has found a child to have suffered significant harm or been at risk of significant harm apart from drug use then it might well be that even if the court reconsidered the matter they would still decide that the best interests of the child meant they should remain in foster care. Some of the children who may be affected by any dodgy test results that may be uncovered will have been placed away from their family for some years – including through adoption – and it may not be realistic to expect them to come home.

• All that said, it will be important for any family who thinks they may be affected to take legal advice, because in some cases, like the 2012 Bristol case, it could just make all the difference (The Transparency Project cannot give that legal advice, which in any event would depend upon the particular facts of the individual case).

All of that guidance remains good now. The only change is that it now seems clearer that at least some family test results are thought to have been compromised.

Which family cases might be affected?

• Cases where Trimega carried out a hair strand test for drug or alcohol use between 2010 and 2014.
• The issue does not affect cases before or after these dates or where testing was carried out by other companies (don’t confuse Trichotech with Trimega they aren’t the same – “trich” means hair!).
• The decision might be one taken in the context of a private law dispute (a dispute between parents or family members about where a child should live or when the child should see the other parent) or it might be one taken in a care case, where a child was removed from the parents and placed elsewhere. These cases may well include some where the children have been adopted or placed for adoption.

So, what should I do if I think my case is affected?

The Government’s advice confirms that “you can ask the court to consider changing or setting aside [the final] order“ by completing a special form C650, which can be sent by post or email. There is no charge for this.

The Government’s advice also explain that parents may also be able to appeal, discharge or apply to vary an order as a result of these issues – but there may be a fee payable for those applications (but as with any other application if you are on a low income you will probably qualify for help with fees). For example you might be able to apply to vary an order with quite restrictive contact arrangements if it was based upon a false positive drug test result (however a better way to achieve a relaxation of a contact arrangement would be to produce more recent clear drug test results).

The form asks parents who “assert the test is wrong” to “give brief details, including whether you questioned the reliability of the result at the time” and asks the parent to explain “What are you asking the court to do and why?”

We think some parents will find this form quite difficult to fill in on their own and will not know what to ask for. It seems clear from the questions on the form that these applications will all go to a central email address and a decision will then be made about whether they require a hearing or can be dealt with by telephone or on paper. It is unclear whether or not there is or will be a standardized approach to the case management of these applications to set aside, for example in relation to the retrieving old files from the court archive. We do know however that the process is unlikely to involve a need to re-test or to examine individual samples because, according to the Minister who explained the current situation to Parliament this week :

Results from all tests carried out by Trimega between 2010 and 2014 are currently being treated as potentially unreliable although it is not clear how many tests from Trimega during that period may have been manipulated. The number of Trimega’s customers affected (such as local authorities, individuals, legal representatives and employers) is unknown. It may never be possible to identify them all, due to poor record-keeping practices. Samples from Trimega cannot be retested, because of the extremely limited chain of custody records and the natural degradation over time of any remaining original samples.

What this means in practice is unclear at this stage. Potentially the family court might work on the basis any test within the window by this company is to be treated as unreliable, but we don’t know for sure. It is also possible that in due course more information will become available so that the authorities can narrow down which tests may be affected, but on the present information this seems unlikely.

The advice that the MoJ / HMCTS have issued is that you should either contact your local authority (meaning the one which is or was responsible for the children when the decision was made), or contact your original solicitor. The advice suggests that parents may wish to seek legal advice about other options and suggests legal aid might be available. It also suggests that a CAB may be able to help, but we think a family solicitor who deals with legal aid, preferably your own former solicitor who knows the case and who should have a copy of the papers in storage would be better if possible. Most solicitors keep their archives off site so this can take some time.

Although the guidance also suggests that the parent should contact the local authority, we would suggest that a parent should not rely on the local authority to take action for them, but should ensure that one way or the other an application is completed and sent either by them or via a solicitor.

The Association of Lawyers for Children have issued a helpful press release, which sets out their view that legal aid will probably be (or at any rate should be) available for parents in this situation. A parent who wants advice from their former solicitor (or a new one) should probably take a copy of that document with them, as some solicitors may be unclear whether or not they can get paid for this work.

If you cannot get a lawyer to help you the CAB or Personal Support Unit at court may help you complete the form.

Is this urgent?

In general terms the longer you wait to try and set aside an order the harder it will be. The issue of potentially dodgy drug test results is most likely to be of concern in cases where a child has been removed and permanently placed away from a parent, particularly where the plan was adoption (By contrast, applications to vary contact orders can be made in any event on the basis of a change of circumstances since the order was made, so the issue of a drug test result from years ago isn’t likely to be very relevant).

Unfortunately, the form does not include any prompt or box for applicants to set out what the placement arrangements are for their child and whether or not there is any urgency. It is unlikely that many children made subject to a placement order in 2014 would still be under such an order – most will by now have been adopted or their plans altered. But it is possible a harder to place child might be about to be placed or about to be adopted, and in those circumstances a parent might want to make an urgent application to prevent any steps being taken that cannot be reversed. Any parent who is in this sort of situation should seek urgent legal advice. If you are completing the form on your own we suggest you write clearly on it what sort of placement your child is in any any details you have about when their placement is likely to be finalised or any dates of hearings.

Although the advice published by the MoJ suggests that local authorities may wish to conduct a review of their historic files, parents should not rely on the local authority or their former lawyer to contact them. We don’t know whether CAFCASS will conduct a review of cases in which a guardian has relied upon a Trimega drug test result.

How likely is a court set aside an order because of dodgy drug test results?

We can’t say how likely a court is to set aside an order because a drug test result was wrong several years ago. But it’s likely that a parent would have to show the following :

• that theirs was one of the affected tests
• that the test was wrong or should be treated as likely to have been unreliable (see what the Minister said for the difficulties with that)
• that the new information about the tests is information that could not have been got at the time. How this will work is difficult to predict because we don’t fully understand what was wrong with the testing process. The court could say that the parent should have said the test was wrong at the time : It is increasingly common for a lab to be asked to reanalyse or explain a test result that the donor says is wrong, and it might be that the court will say that this sort of second opinion or reanalysis could have been asked for at the time. However, if the problem with the lab was something that wouldn’t have been uncovered or clarified by a retest (for example endemic cross contamination issues), or if an application was made and refused, it may be that a parent will be able to show that it wasn’t possible to get the evidence sooner.
• that the test result was one of the major (“material”) reasons for the decision, and the decision might have been different if the real result was known (for example showing that one test was a false positive isn’t likely to help if there were also subsequent reliable positive test results that the court relied upon, or if there were other equally serious issues that were part of the reason for the decision)
• that the parents could now safely care for the child – in most cases there will have been a wider range of worries than a single positive drug test result so even if the test result is shown to be wrong it doesn’t necessarily mean that the court would agree the parents were safe then or now.
• that it is in the best interest of the child to disrupt their placement – this is going to be a tough one if a child has been in a placement for upwards of three years.

Things are even tougher if an adoption order has been made. In most cases where adoption was the plan in 2014 (the end of the window where the problem arose) an adoption order will by now have been finalised. It is almost unheard of for an adoption order to be overturned. It is important to understand that where a child has been placed for adoption and the adoption order made final it is very unlikely that the discovery that the drug test results were unreliable could result in the setting aside of the adoption order or the return of the child – but this is something you should get legal advice on before deciding what to do. The case of Webster v Norfolk County Council & Ors (Rev 1) [2009] EWCA Civ 59 shows just how difficult it is, even where a parent has been the victim of a miscarriage of justice, and gives some explanation of the legal complexities involved. This is why we say that if you are affected by these drug test results and your child has not yet been adopted but might be soon, you should act as soon as possible.

Nothing in this blog post should be treated as legal advice. It is intended as general guidance only, and we encourage all those who think they might be affected to get advice from a qualified family lawyer if they are able, which will be tailored to your own circumstances and the details of your case – and in any event to act as soon as possible.  

Feature pic : laboratory stuff by iT@c on Flickr (creative commons licence) – thanks.