There have been news reports recently about failures at a forensic lab in Manchester, which was used for forensic testing in criminal cases. It was reported earlier this month that “Scores of convictions [are] in doubt amid forensic test manipulation claims”. Those reports refer to criminal cases only, and the company is identified as Randox. There is reference to the possibility that the problems extend to drug testing results, but from the article the issue appears to relate to a wider range of forensic tests (presumably DNA, blood matching, drugs). It’s unclear quite what has gone wrong, but the suggestion in the news reports is that something quite widespread and potentially criminal has gone on, and it may undermine the reliability of tests carried out by this lab.

It is now being reported (in the Mirror) that the problem may also cover drug and alcohol tests carried out for the family court :

Hundreds of kids could have been torn from parents in ‘fake blood test’ scandal

Drug and alcohol testing is often carried out in cases concerning children, particularly care cases. And it is right that a positive test result can be the end of any chance of a parent keeping their child, or of getting them back. Many cases are more complex than that, but in some cases the outcome will depend on drug testing evidence alone. So this really matters.

We hadn’t picked this up as a family court issue before, because the lab in question was primarily described as a forensics lab rather than a drug testing lab, and because the company name Randox was used, and we haven’t heard of it in this context. It’s now clear from the Mirror’s reports that in 2014 Randox took over a company that family lawyers will be very familiar with – Trimega. Trimega was a drug testing company that was very regularly used in the family courts for a number of years, and it is Trimega’s Manchester lab that has been identified as being a problem.

Randox do still appear to provide services to the Family Courts, although it is unclear if they do so from their Manchester lab. The Randox website says :

We provide drug and alcohol testing to all professionals within the family law sector including family law solicitors, family law barristers, local authorities, social services, and the family court. We understand the impact a positive result can have on a parent, child, and extended family, and ensure results of the highest precision and accuracy. With over 30 years’ experience in the diagnostic industry we have gained reputation as a trusted provider and have been described by previous customers as providing “exceptional testing” solutions. [as at 20 May 2017 3.37pm]

The author (a barrister involved in family court cases) has never heard of Randox except in the context of these news articles, but that is not to say that they are not used – new names come and go in this field all the time. Drug testing is very widely carried out in care cases and so systemic or widespread problems with the testing regime certainly have potential to impact on “hundreds” of kids, as the Mirror headline suggests. Whether this will actually turn out to be the case is less clear.

The Daily Mirror refer to an issue in the family courts involving Trimega labs a few years ago. They say

…A family court first raised concerns about the lab in 2012 when a mum of two was wrongly found to have been taking cocaine and opiates. Mr Justice Jonathan Baker told the High Court her children would have gone into care had the sample not been re-checked by another lab. He warned at the time: “Erroneous expert evidence may lead to the gravest miscarriage of justice imaginable – the wrongful removal of ­children from their families.”…The mum in the 2012 case had a sample of her hair tested in 2011 after Bristol city council raised concerns for her ­children, aged three and four. Robin Tolson QC, representing rival testing company Concateno, told the High Court a report by Trimega on the inaccurate result was a “whitewash” and “inadequate”.

The case being referred to is Bristol City Council v A Mother & Ors [2012] EWHC 2548 (Fam) (25 September 2012). It is clear from that case that in 2012 something went very wrong with a hair strand test in that particular case, and that it could well have led to children being removed from their mother had the mistake not been rooted out and the sample re-tested by a second company. It is impossible to say whether the error there was in any way connected with the matters under criminal investigation, or whether it was a one off. At the time Trimega argued that the error had occurred during sample collection (i.e. was not their fault), but this was never aired fully because it was accepted the test result was wrong one way or the other through some sort of human error (as opposed to a criminal manipulation of results which is now alleged). At the time the Family Court judge didn’t think it was necessary to fully explore the issues, and seemed to take the view that the arguments about this error were potentially driven / coloured by the rival commercial interests of competing companies. There is reference in the judgment from that case to lengthy skeleton arguments, which presumably fleshed out why the rival company said that Trimega were involved in a “whitewash”. The two stories may be entirely unconnected, but it would certainly be interesting to see those skeleton arguments to see whether there was any overlap between the issues now being investigated and the root of the problem as identified or asserted at that time.

The time period for tests that might have been affected is a bit opaque. The Guardian report about the tests carried out for criminal cases records the police investigation as going back as far as 2014 (i.e. broadly the period after Randox took over), whilst the Mirror report has the Greater Manchester Police saying “We are examining if any family court cases have been affected.” and says that GMP “said it was focusing only on cases dating back to 2012 but “could consider a broader time frame””. So this would encompass the Trimega period. The Mirror report also states that a lab worker and his boss, employed at the lab since 2007, remain on police bail after being arrested on suspicion of manipulating toxicology tests. It may be that some of the same staff remained a consistent feature throughout the period before and after the takeover and the problems may therefore span both periods.

There is probably little more that can be said at present as criminal investigations are ongoing. In the event that it emerges that there is an issue that may affect numbers of family cases it is likely that the President of the Family Division to issue a statement, as happened after the convictions of Sally Clark and Angela Cannings were quashed. Sally and Angela were mothers who suffered miscarriages of justice, having been convicted of smothering their children as a result of flawed expert evidence. When their convictions were overturned it became apparent there was a wider issue and other parents may also have been wrongly convicted or have suffered miscarriages of justice in family courts, with surviving children removed.

There, the President of the Family Division issued administrative directions to all Family Division Judges, all Designated Family Judges and the Senior District Judge, setting out the arrangements to be adopted by judges of the family courts in response to any applications arising as a result of the decision in R v Angela Cannings. All such cases were to be dealt with by the High Court. See here for example.

In any event, if the police discover a problem with test results relating to family cases we’d expect the families in question to be contacted, and they will then be able to decide what steps if any they need to take.

We will report further on such matters as more information emerges. Things are unlikely to happen quickly.

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).

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