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Children: Public Law Update (December 2010)

John Tughan of 4 Paper Buildings reviews the key decisions in Children Public Law over recent months

John Tughan, barrister, 4 Paper Buildings

John Tughan, Barrister, 4 Paper Buildings

In this update on the latest issues in public law I will deal with recent cases that touch on the following topics: 

Hair strand testing
On the 12th November 2010 Mr. Justice Moylan gave guidance on the issue of the use of hair strand testing for the purposes of measuring alcohol consumption.  The case citation is LB Richmond v B & W & B & CB [2010] EWHC 2903 (Fam).  The court was concerned about the way in which the evidence relating to alcohol consumption had been presented and reminded experts instructed in proceedings of the Practice Direction "Experts in Family Proceedings Relating to Children" [2009] 2 FLR 1383.

The court explained that hair strand tests to measure alcohol consumption are based on seeking to establish the concentration of ethyl glucuronide (EtG) and fatty acid ethyl esters (FAEEs).  The levels of concentration are given as nanograms of EtG/FAEEs per milligram of hair or picograms of EtG/FAEEs per milligram of hair.  The reason both nanograms and picograms are used is that the levels being analysed are very, very small.   Accordingly, the results for EtG are usually given in terms of picograms to avoid the use of noughts below the decimal point – one nanogram equals 1,000 picograms.  Hair grows at the rate of between approximately 0.7 and 1.5 cm per month.  Accordingly, 3 cm represents, on average, three months' growth.  The level of EtG or FAEEs found in a hair sample reflects the consumption of alcohol over the whole of the period covered by the sample.  It does not determine the manner in which such alcohol might have been consumed: i.e. it does not determine the number of times on which alcohol might have been consumed nor the amount consumed on each such occasion.  It shows only the average consumption for the relevant period because both EtG and FAEEs are incorporated in the hair in or near the root and into grown hair.

The court drew the following important conclusions: 

  1. When used, hair tests should be used only as part of the evidential picture.  Of course, at the very high levels which can be found (multiples of the agreed cut off levels) such results might form a significant part of the evidential picture.  Subject to this however, both Professor Pragst and Mr O'Sullivan agreed: "You cannot put everything on the hair test"; in other words the tests should not be used to reach evidential conclusions by themselves in isolation from other evidence.  Moylan J said that he sensed considerable unease on the part of Professor Pragst at the prospect of the results of the tests being used, other than merely as one part of the evidence, to justify significant child care decisions. 
  2. Because of the respective strengths and weaknesses of each of the tests (for EtG and FAEEs), if hair tests are going to be undertaken, both tests should be used.  Research has shown that the tests can produce conflicting results. 
  3. The results produced by the tests should be used only for the purposes of determining whether they are or are not consistent with excessive alcohol consumption by use of the cut off levels referred to in the consensus of the society of hair testing (see below).  If they are not – in other words if the concentration found is below the generally recognised cut-off levels – the results are consistent with (indicative of) abstinence/social drinking.  If the results are above the generally recognised cut-off levels, they are consistent with (indicative of) excessive alcohol consumption.  Further, as referred to earlier in this judgment, at these cut off levels the research evidence suggests that 10% of the results will be false positives.  The tests cannot establish whether a person has been abstinent both because the non-detection of either EtG or FAEEs does not mean that the subject has not consumed alcohol and also because the detection of either at volumes below the cut off levels referred to above below does not mean that they have.  Finally, on this point, the tests are not designed to establish abstinence or social drinking. 
  4. The current peer agreed cut off levels for both EtG and FAEEs are for the proximal 3 cm segment of hair.  Whilst the testing of 1 cm segments (of the proximal 3 cm segment of hair) might have some value for the purpose of looking at trends (and also at very high levels referred to in (i) above), no cut off levels have been established or generally agreed for 1 cm segments nor, as referred to earlier in this judgment, is there sufficient published data on testing such segments to enable the validity of such tests to be established.  Accordingly, any evidence based on the testing of 1 cm segments is unlikely to be sufficient to support conclusions as to the level of alcohol consumption. 
  5. Notwithstanding what is set out in the Consensus, the witnesses in these proceedings agreed that, when tests demonstrate levels of EtG and FAEEs above the cut off levels referred to in paragraph 20, the results can be said to be "consistent" with excessive consumption over the relevant period.  When a test demonstrates a lower level it is "consistent" with abstinence/social drinking.
    (vi) As referred to in (iii) above, the current state of research means that there is no peer agreed cut off level for the line between abstinence and social drinking.  In the absence of any such peer reviewed and agreed cut off, any court would, in my view, need specific justification before accepting any such evidence.

The court referred to the "Consensus of the Society of Hair Testing on hair testing for chronic excessive alcohol consumption" ("the Consensus"), published on the 16th June 2009.  The Consensus sets out agreed cut off levels for both EtG and FAEEs which would "strongly suggest chronic excessive alcohol consumption".  The levels proposed are obviously above, and significantly above, both the LOD and the LOQ.  For EtG the agreed cut off level has been put at 30 pg/mg (0.03 ng/mg) for the proximal 3cm segment of hair.  For FAEEs the agreed cut off level has been put at 500 pg/mg (0.5 ng/mg), again for the proximal 3cm segment of hair.  These levels have been agreed, partly so that standard levels are applied across all laboratories and partly because of a consensus that the results thereby produced are sufficiently robust to be relied upon.  Professor Pragst said that these levels were agreed because there was general agreement that at these levels 10% of the results would be false positives and 10% would be false negatives.  The length of 3cm was taken as the optimal length because this is the length tested by most laboratories and because there are not many 6cm samples or shorter segments in the published research data.  In respect of this last point, Professor Pragst said that the published data was not sufficient to establish the validity of testing 1cm sections of hair (save as described in paragraph 22(iv) below).

The relatively recent development of hair strand testing for alcohol consumption has now been examined and placed in its proper context by this decision.  This decision contains a salutary reminder of the purpose of expert evidence, the duties on experts and the need for a proper examination of the factual context surrounding expert evidence.

Disclosure and confidentiality in honour-based violence cases and more generally
In A County Council v SB, MA and AA [2010] EWHC 2528 the President handed down judgment on the 15th October 2010.  The court was dealing with an issue of disclosure which had been referred to the High Court from the District Judge in the County Court.

A was born of parents who originate from Pakistan. She has, however, spent her entire life in the United Kingdom, and is a British subject, as are her parents. She is the fourth of her parents' five children. The local authority commenced care proceedings on 23 February 2010. Prior to that date, A, at her own request, had been accommodated since 3 December 2009.  The reason for the care proceedings has its origins in the fact that A has formed a relationship with a young man, referred to as AF.  A's parents disapprove of AF, who, like A was brought up in England, but whose parents originate from Bangladesh.  There had been a series of incidents which concern the local authority, and which amounted to concern that A was the subject of honour-based violence and pressure.  An order under the Forced Marriage (Civil Protection) Act 2007 was made, and (inter alia) A was made the subject of an interim care order and an honour related abuse assessment from an expert was also ordered.

By the time of the second expert's report it contained information which had influenced the expert, but which had not been disclosed.  It was directed on 29 September that the expert's second report should be disclosed to the parties' legal advisers, the parties having given irrevocable instructions not to impart the information contained within it to their respective clients.  The matter was referred to the High Court at that point.

In approaching the issue the President started from the position of two basic and well established rules:

  1. Disclosure is the rule, not the exception, and 
  2. Experts in Children Act proceedings cannot receive information "in confidence" from anyone.

The President explained why those rules were well established and cited, in support of the first, Lord Mustill in D (Minors) (Adoption Reports: Confidentiality [1996] AC 593 at 603H to 604A:

"My Lords, it is a first principle of fairness that each party to a judicial process shall have an opportunity to answer by evidence and argument any adverse material which the tribunal may take into account when forming its opinion. This principle is lame if the party does not know the substance of what is said against him (or her), for what he does not know he cannot answer….."

The President went on to say that he was in no doubt that the power exists to withhold disclosure in exceptional circumstances (such as the likelihood of a breach of a party's ECHR Article 2 or 3 rights if information is disclosed).  Although the disclosure was to be ordered in the present case, the President was equally in no doubt that there will be "honour" based violence cases in which the balance will fall the other way.

Honour-based violence cases may be the trickiest of all public law cases for the issue of inter-partes disclosure.  Where, as in this case, the young person at risk herself confides in an expert instructed in the proceedings then it can be seen that the expert can be put in a difficult position.  Of course, this dilemma can arise in any case to do with the welfare of children and the clear guidance given by the court is welcomed.  Practitioners will note the exceptional circumstances required before the basic rules as to disclosure and confidentiality can be avoided.

International adoption
In ECC (Local Authority) v SM and Ors [2010] EWHC 1694 (Fam) Mr Justice Hedley was dealing with the recognised "legal minefield" of the placement of children with kinship carers in the USA for the purposes of adoption.  The court noted that on the 1st April 2008 the U.S.A. acceded to and adopted into domestic law the Convention of 29th May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption. The practical effect of that would be that the making of a Convention adoption in this country would obligate the U.S.A. to make all necessary arrangements for the admission to and residence in the U.S.A. of the adopted child.  In those circumstances the local authority in the case under discussion changed its care plan from a placement for adoption in the U.S.A. to the making of a Convention adoption in this country with a view to subsequent permanent removal to the U.S.A.

To achieve that plan the relevant provision – Section 42 (2)(a) Adoption and Children Act 2002 – requires the child to live with one or both of the adopters at all times during the period of ten weeks preceding the application.  The domestic and economic circumstances of the prospective adopters preclude their setting up a temporary home in this country and the question arises as to whether that period can be spent in the U.S.A.  That raises the issue as to the relationship between Section 28 (2) – (4) and Section 85 of the Act given that Section 42 admits of time being spent abroad.  Section 85 imposes criminal penalty on people removing children from the jurisdiction unlawfully.

The solution arrived at was the granting of temporary leave to remove the child to the USA for the purposes of the period required pursuant to s42 of the Adoption and Children Act 2002, a restrictive reading of s85 of the Adoption and Children Act 2002 and a declaration that the taking up of such leave to remove would not breach s85 of the Act.