R (A Child : Care Order)

I am concerned here with an application made under s31 of the Children Act 1989, by the London Borough of Islington, in respect of a child ‘R’ who is now 2 ½ years old. The application for a Care Order was first issued on 18^th February 2015. Self evidently there has been inordinate delay which, because it will have been harmful to the child, requires explanation.

The background which led to the initiation of proceedings is uncontroversial. On 9th October 2014 (3 weeks prior to R’s birth) the mother (M) tested positive for amphetamines. On 15th November 2015 the mother left R in the care of the maternal grandmother. The mother whilst socialising took the illicit drug GBH and as a consequence was unable to walk. She was returned to her hostel by builders who had found her slouched in the car park outside. On 7th December 2014 the police attended the mother’s home to undertake a welfare check. The mother admitted that she had taken a legal high called ‘G’ the night before, notwithstanding that R was in her sole care. On 8th December 2014 the local authority received a referral raising concerns about the mother’s drug use. They responded by commencing an assessment.

Before the assessment was completed the local authority applied for an Emergency Protection Order in respect of the child on 30th January 2015, this followed his removal from his mother’s care pursuant to police protective powers, on 29th January 2015. On that day the mother had used the drug GHB whilst caring for R. Whilst under the influence of the drug she took him to the local shop to buy cigarettes. She was seen to be ‘staggering around’ with R in her arms. He was seen to fall from her arms and slide down the shop counter onto his head. A member of the public flagged down a passing police van. On arrival of the police the mother was sitting in a chair outside the shop and R was seen drooped over his mother’s arm, with his ‘head a couple of inches away from the pavement’. The mother was leaning forward, shaking slightly with ‘her body swaying from side to side’. She was not able to speak or sit up straight in a chair. The police immediately removed R from his mother. The mother was unresponsive and could not be roused until the ambulance service administered medication, ‘Narcan’, to block the effect of opioids and reverse an overdose. The mother was arrested by the police and accepted that she had taken GHB at 10.30am that morning, that being approximately 1 ½ hours before the police arrived at the scene. The mother received a police caution for the offence of child neglect and later that day R was made subject to police protection.

At the hearing of the Emergency Protection Order application the following day, the mother agreed to the child being accommodated by the local authority, pursuant to section 20 of the Children Act 1989, pending the issue of care proceedings. R was accommodated in a local authority foster care placement.

Mr Love, counsel on behalf of the Local Authority, has prepared a chronology of the earlier County Court proceedings. The Judgment at the conclusion of those proceedings was subject to a successful appeal to the Court of Appeal and the case was remitted to the High Court for a rehearing. The background to the earlier proceedings requires to be stated and be can be drawn, substantially, from Mr Love’s document.

Upon issue, the Local Authority’s application for a Care Order was allocated to the FDAC Court. At the first hearing of the matter on 2nd March 2015 the mother conceded that the interim threshold criteria were met and did not oppose the local authority’s application for an Interim Care Order, under which regime R remained in foster care. The timetable for R contemplated proceedings being completed by 24th August 2015. At this stage the mother appeared to be fully engaging with the FDAC process, she was attending a weekly drugs service called IDASS and attending NA (Narcotics Anonymous) daily. A system of weekly oral swabs/urine tests for drugs along side hair strand testing, intensive substance misuse treatment and psychological treatment were proposed by FDAC and agreed by the mother. The mother accepted she had a long, chronic history of drug misuse.

On 23rd March 2015 the matter was listed for a first Case Management Hearing (CMH): directions were made for the mother to undergo hair strand testing for drugs and a psychiatric review by Dr Hallstrom, and for the local authority to file and serve a viability assessment on the maternal grandmother and her partner as alternative carers for R.

On 12th March 2015 the local authority filed and served a positive viability assessment of the maternal grandmother and her partner, pending receipt of further information from Essex Social Care. The further information was received on 30th March 2015 and the local authority progressed to a full special guardianship assessment.

On 8th April 2015 the mother commenced therapeutic work with Core Trust. On 14th April 2015 Dr Hallstrom reviewed the mother and concluded that there was clear evidence that she seems to suffer from an underlying emotionally unstable personality disorder. However, it requires to be stated that Dr Rachel Jones, Consultant Forensic Psychiatrist, instructed at the rehearing, concluded that M did not meet the criteria for a personality disorder.

On 18th May 2015 the matter was listed for a further second CMH. Directions were made for the mother to undergo further hair strand testing for both drugs and alcohol and for the local authority to file and serve a Special Guardianship Order (SGO) assessment of the maternal grandmother and her partner. On 10th June 2015 the local authority filed and served a positive SGO report in respect of the maternal grandmother and her partner.

On 15th June 2015 FDAC reported that the mother was engaging well and that standard drug testing (urine and oral fluid) had not detected any drugs or alcohol. On 29th June 2015 the matter was listed for a third CMH: an order was made against the Department of Work and Pensions to disclose any information in its knowledge about the whereabouts of DS.

On 16th July 2015 the mother received hair strand drug test results for a sample covering the period from the beginning of December 2014 to the beginning of June 2015. The results indicated the reducing presence of crystal meth and a cocaine metabolite. FDAC analysed the results as either being capable of being consistent with the mother’s self reporting that she last used drugs at the end of January 2015 or capable of representing on-going crystal meth use between December 2014 and March/April 2015. FDAC concluded that the mother’s self-reporting was the more likely explanation in light of her positive engagement in services.

On 27th July 2015 the matter was listed for a fourth CMH: The local authority plan, supported by the children’s guardian and the FDAC team, was for R to be rehabilitated to his mother’s care. The timetable for R was extended until 3rd November 2015 to allow the mother to complete necessary work with FDAC and the Core Trust. Directions were made for the mother to undergo a further hair strand test for drugs and for all parties to file and serve sequential final evidence. The matter was listed for an IRH/early final hearing on 2nd November 2015.

At this point in proceedings the local authority accepted that the mother had been abstinent from drugs for 8 months, that she had had no contact with DS, had engaged well with the FDAC process, reconnected with her own mother and had successfully begun the process, assisted by therapy, of addressing the reasons behind her drug use. All weekly urine drug screens and oral fluid tests had been negative for ‘all street drugs’. All professionals agreed that the mother had further psychological work that she needed to undertake but that she could do so with R in her care.

On 10th September 2015, R was returned to the care of his mother.

The local authority filed and served its final evidence on 9th October 2015, supporting R remaining at home with his mother. That same day the latest hair strand drug results were made available and upon the mother’s application an expert report was prepared by Mr Stephen Ramsay based at Alere Toxicology in respect of the results. The results support M’s use of methamphetamine, from the middle of June to middle of September 2015; consistent with the mother using cocaine from the middle of June to the middle of August 2015 and; supportive of the mother using MDMA between the middle of June and the middle of July 2015. Upon receipt of the test results the mother denied any illicit drug use since the end of January 2015 and disclosed to Tim Quinn from FDAC that she had met with DS at his home on 22nd June 2015 and that she had seen a meth pipe and believed he must have spiked her drink. The mother later disclosed she had been meeting with DS for casual sexual encounters. This was despite FDAC identifying him in clear and unambiguous terms to the mother as a real threat to her continued abstinence from drugs. The mother accepts that she met with DS the very morning that R was returned to her care and again 9 days later.

On 9th October 2015 the mother agreed to R being removed from her care and being placed back in foster care.

On 23rd October 2015 the matter was listed for a review to consider the results of the hair strand tests. The order recorded that the mother:

Directions were made setting the matter down for a contested hearing addressing the remit of contact. On 23rd October 2015 the matter was listed for a contested hearing in respect of the issue of contact; the mother sought a continuation of her unsupervised contact 5 x per week but the local authority, supported by the children’s guardian, sought supervised contact 3 x per week. The court deemed the proposal by the local authority for contact to be reasonable.

On 6th November 2015 the FDAC team filed and served an addendum to its final report. The FDAC team felt that the most recent hair strand test results called into question whether the mother had in fact been abstinent from January to April 2015 and concluded, when comparing the tests, that it more likely that she had not save for a short 2 month window between April and May 2015. Further and significantly, the FDAC team were concerned at the lack of insight showed by the mother in respect of her relationships with men who were themselves abusing drugs. They recommended further therapeutic assessment estimated to take 12 to 18 months.

On 11th November 2015 the mother accepts that she smoked £50 of crystal meth. On 16th November 2015 the matter was listed as an IRH. The timetable for R was extended to February 2016, due to the first available date for a final hearing being 1st February 2016. Directions were made for final evidence to be filed and served by all parties.

The local authority supported the placement of R with his maternal grandmother but, due to difficulties between the mother and the maternal grandmother over the Christmas 2015 period, the maternal grandmother withdrew her offer to care for R on 4th January 2016. Following Christmas 2015, the mother ceased her engagement with FDAC and with the therapy which had been arranged at the Core Trust.

At the time of the final hearing the local authority and children’s guardian supported a care plan of adoption for R. By the conclusion of the hearing the mother was inviting the court to make a Final Care Order with a care plan contemplating the return of R to her care after a period of 6 months, during which she asserted that she would undertake further work, including therapeutic work. It requires to be stated that M’s initial position at the commencement of the hearing was to seek R’s immediate return to her care. The case was heard over 4 days and the Judge made a Care Order and Placement Order.

Acting in person, the mother issued an Appellant’s Notice on 26th February 2016 and on 16th March 2016 issued an application to adduce fresh evidence from a Professor Kintz, an expert in hair strand drug testing. The evidence expressed fundamental disagreement with the expert evidence filed within the proceedings.

In April 2016 King LJ granted the mother permission to rely on the fresh evidence from Professor Kintz. In [2016] EWCA Civ 470 King LJ observed:

“All I have to do at this stage is to consider whether there is a reasonable prospect of the mother successfully appealing the order made by the Judge. I do not at the moment feel in a position to say that. I am, however, concerned there are doubts as to the veracity of the hair strand testing which have, to all intense purposes, determined the future of this baby.”

Earlier in the Judgment King LJ noted as follows:

“Importantly also, it would appear when the hair strand test was taken that, contrary to good practice, either insufficient hair, or the manner in which the hair was taken, meant that it was not possible to do a second independent re-test: nor, it would appear, did FTAC adopt a procedure which is on offer from the hair strand testing company where by a hair strand test can be retested in the way that drink driving tests are re done where a party requests a second opinion.”

It is important that I recall that no arguments of this nature have been presented to me. Indeed, all the experts have agreed that the laboratory procedures are unimpeachable. On 16^th June 2016 Black and King LJJ granted permission to appeal and allowed the appeal.

By way of completeness, the mother has again accepted, in these proceedings, that the Threshold Criteria, pursuant to s31(2) of the Children Act 1989, are met in relation to R. Accordingly, at this rehearing, there are two central issues. Firstly, the determination of the conflicting hair strand analysis. Secondly, resolution of R’s welfare interests. During the course of these proceedings directions have been made for a further hair strand test to be undertaken, on this occasion by Lextox Drug and Alcohol Testing. In addition, a psychiatric assessment of the mother has been undertaken by Dr Rachael Jones. Running alongside these enquiries there has been urine testing covering 10^th August 2016 to 1^st October 2016 the conclusions of which can properly be summarised as: ‘detecting no illegal substances’. However, the hair strand test results provided by Lextox (see above) spanning the period between March 2016 and mid September 2016 revealed methamphetamine detected above the SOHT (The Society Of Hair Testing) recommended cut off level in every section of hair tested. Metabolite amphetamine was detected only in the oldest section of hair tested.

It is common ground amongst the experts in this case that hair like e.g. blood, urine, saliva is a biological matrix that can be effectively used to carry out laboratory drug testing in humans. Here, it is also agreed that there are no deficiencies in analysis by any laboratory. The apparent disagreements have focused entirely on the interpretation of the results.

It is necessary to say something of the technical processes in respect of drug incorporation into hair. Again, this is uncontentious between the experts and so I can summarise the evidence on this point. In essence, after a drug has entered the body it becomes broken down into compounds, known as metabolites which are derived from the drug itself. Thus, the ‘parent drug’ and its metabolites are both present in the blood stream. I have been told that as the hair follicle undergoes rapid growth it is provided with a healthy blood supply which, along with sebaceous secretions and sweat, are the main mechanisms by which the drugs and their metabolites are incorporated into the hair. For convenience, I highlight the summary in the report of Ms Angharad John BSc, for no other reason than it is expressed succinctly.

Ms John observes as follows:

“When an individual has regularly used a drug, stops and continues to abstain from using the drug it can take approximately 3 - 4 months for a person to return a ‘Not Detected’ result. This is due to the fact that at any one time approximately 15% of scalp hair is not actively growing. This resting hair can stay on the scalp for approximately 3 - 4 months before being shed. This resting hair would contain drugs that would have entered the hair during the period of drug use (Tsanaclis, 2007).

When tests looking for a particular drug are performed on hair samples, where possible Lextox also test for its metabolites, which are found after using the drug, for example 11-nor-9-carboxy-delta-9-THC (cannabis) or benzoylecgonine (cocaine). The presence of a metabolite indicates drug usage. When the parent drug is detected but a metabolite is not present, there is no evidence that the drug has been metabolised by the body (Tsanaclis, 2007). Explanations for this finding could be due to low/infrequent usage or passive/environmental contamination.

There are many factors that influence the amount of drugs in hair such as the purity of drug consumed, the effect of cosmetic hair treatment and individual variations to drug metabolism (Tsanaclis, 2007) (Skopp, Potsch, & Moeller, 1997) (Martins, Yegles, Thieme, & Wennig, 2008). Studies with individuals receiving the same dose showed substantially variable drug concentrations in hair (Henderson, 1993). Therefore, the levels of drug detected in the hair are best used as a guide to changes in use by the individual and not to the amount of drug consumed (Jurado, 2007).”

Professor Pascal Kintz is Head of toxicology in a Company called ‘DNA Legal’ in Oberhausbergen, France. He has impressive qualifications and experience and is a past President of the Society of Hair Testing. This very respected organisation was established in 1995 and provides guidelines to evaluate chronic drug use and to set industry standards across laboratories. There are recommended ‘cut offs’ to identify drug use which have been the focus of interest in this case. Each of the three experts instructed agreed that the SOHT Guidelines apply to cases of chronic drug use. It is also agreed that there is no standardised guidance to address isolated exposure or intermittent use.

It is particularly important to emphasise that each of the three experts in this case confirmed that hair strand testing should never be regarded as determinative or conclusive. They agree, as do I, that expert evidence must be placed within the context of the broader picture, which includes e.g. social work evidence; medical reports; the evaluation of the donor’s reliability in her account etc. These are all ultimately matters for the Judge to evaluate.

This approach is also mirrored in the law. In London Borough of Richmond upon Thames v B, W, B and CB [2010] EWCA 2903 (Fam) [2011] 1 FLR 1345 Moylan J provided guidance as to the use of hair strand testing for alcohol in Children Act proceedings.  The judgment sets out in detail the forms of hair strand testing available and reminds experts who produce reports within Children Act proceedings of their duties under the Practice Direction 'Experts in Family Proceedings Relating to Children' (2009) 2 FLR 1383. The relevant Practice Direction is now PD 25B, Family Procedure Rules 2010, but it is the same in material respects (see paras 4.1(b) and 9.1(f)(iii) of the current Practice Direction).

8.

In this context, it must be understood that the Practice Direction "Experts in Family Proceedings Relating to Children" [2009] 2 FLR 1383 applies to all expert evidence.  It provides, among other things:

…

(2)

to provide advice to the court that conforms to the best practice of the expert's profession; …

[3.3] The expert's report shall ….:

(c)

highlight whether a proposition is a hypothesis (in particular a controversial hypothesis) or an opinion in accordance with peer reviewed and tested technique, research and experience accepted as a consensus in the scientific community; …

(9)

where there is a range of opinion on any question to be answered by the expert:

(a)

summarise the range;

(b)

highlight and analyse within the range of opinion an 'unknown cause', whether on the facts of the case (for example, there is too little information to form a scientific opinion) or because of limited experience, lack of research, peer review or support in the field of expertise which the expert professes;

…

9.

This guidance in the Practice Direction is not advisory, it is mandatory, subject only to the qualification that its terms have to be applied purposively to the specific circumstances of each case.  It is applicable, as I have said, to all expert evidence in family proceedings relating to children.

10.

I have referred to the Practice Direction because some of the expert evidence which has been produced in this case appears to have been treated as though it was not expert evidence.  It may well be that results obtained from chemical analysis are such as to constitute, essentially, factual rather than opinion evidence because they are not open to evaluative interpretation and opinion.  Although I would add that it is common for such analysis to have margins of reliability.  However, the Practice Direction applies to all expert evidence and it will be rare that the results themselves are not used and interpreted for the purposes of expert opinion evidence.

Moylan J emphasised below that which I also wish to highlight:

22.

…

(i)

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 that "You cannot put everything on the hair test"; in other words that the tests should not be used to reach evidential conclusions by themselves in isolation of other evidence.  I 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;

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 cut off levels set out in the Consensus have been agreed because they represent the optimal level at which there were the lowest number of false positives and the lowest number of false negatives.  As a result of the variables present, such as the fact that metabolism varies from person to person, it is not possible to identify a clear divide.  In Professor's Pragst research (and, I believe, others) the cut off level was set, through empirical research and ROC analysis, at the point where the results were understood to produce 10% false negatives and 10% false positives.

I too have previously highlighted the danger inherent in elevating technical evidence of this nature (in blood testing rather than hair strand) to a status where it is regarded as determinative and commented upon the importance of framing expert instructions, where possible, in the context of a factual matrix. It is always important to bear in mind, the obvious point, that the nature of the answer will frequently depend on the precision of the question, see: Re F (Children) (DNA Evidence) [2008] All ER (D) 171. In Bristol City Council v A and A and others [2012] EWHC 2548 (Fam) [2013] 2 FLR 1153 Baker J observed that the science involved in hair strand testing for drugs ‘is now established and not controversial’. Whilst I would respectfully agree with that, it requires to be highlighted that, as this case has surely demonstrated, interpretation of the testing may not always be free from controversy.

I heard from each of the three experts: Mr Stephen Ramsey BSc, Reporting Manager for Alere Toxicology; Ms Angharad John, Letox Drug and Alcohol Testing and Professor Pascal Kintz. Each had participated in an experts meeting on 15^th November 2016. The meeting took fractionally over 2 hours and its objective was to identify the parameters of agreement and disagreement on the analysis of the results.

Professor Kintz joined the meeting by telephone. There is a very clearly transcribed note. I am bound to say that receiving Professor Kintz’s oral evidence by video link to the courtroom was altogether more troublesome. The video link ultimately failed and the telephone link was barely satisfactory. By effectively reorganising the courtroom and sitting around a table together with the Judge, the advocates were able to proceed satisfactorily. Quite why this link did not work has been impossible to discover. I see every reason why experts from different jurisdictions should be encouraged, particularly where they appear to hold differing views to those that predominate with colleagues in the UK, but it is crucial that they are able to contribute just as effectively as their counterparts here. For this reason I would be reluctant in future to take video link evidence from an expert overseas, unless the connection had been properly tried and tested from court. Moreover, I would be resistant, for reasons I will refer to below, to permit an overseas expert to attend a meeting by telephone where there is core data to be considered.

A schedule of Agreement and Disagreement was prepared, which is too lengthy to be incorporated into this judgment but can be properly be characterised in short form by recording that it was Professor Kintz who disagreed with his colleagues as to the interpretation of the tests.

The second set of 2015 hair strand testing comprised three hair sections, each measuring 1.0 centimetre (cm) in length, cut from the scalp end of the hair sample. The hair sections were each washed with a solvent before analysis to remove or minimise any external drug contaminants that may have affected the analysis. The wash solutions were retained at the laboratory. Each section was analysed separately.

Using a hair growth rate of 1.0 centimetre per month, the hair tested represented the following approximate time periods:

2-3 cm - From the middle of June 2015 to the middle of July 2015

1-2 cm - From the middle of July 2015 to the middle of August 2015

0-1 cm - From the middle of August 2015 to the middle of September 2015

The three hair sections were then tested for evidence of the requested drug and drug groups, using the ‘standardised confirmation technique of liquid chromatography with tandem mass spectrometry’. As I have stated, none of this is controversial and so it is unnecessary for me to burden this judgment with any explanation of that technique. The three hair sections tested negative for amphetamine, benzodiazepine group analytes and cannabis group analytes. The hair tested positive for a cocaine group analyte, methamphetamine group analytes and an opiate group analyte.

A table was constructed, I think by Dr Ramsey, displaying the results of the analyses for evidence of cocaine group analytes, methamphetamine group analytes and opiate group analytes in the hair, in nanograms of analyte per milligram of hair (ng/mg). This table requires to be set out:

The single asterix above denotes that the concentration of cocaine present in the hair is below the Alere Toxicology reporting cut-off level (reflecting the SoHT guidelines) and therefore was reported as ‘Not Detected’ on the Certificate of Analysis.  In order to assist the overall interpretation of the results, the concentration of cocaine present in the hair has been detailed in the table above.

The double asterix signals that the concentration of analyte present in the hair falls within the range provided in brackets in the table above. The ranges are derived from statistical analysis of the results of other hair sections and hair samples that have tested positive for the analyte in question. These ranges undergo periodic review; therefore, the current range provided may differ from a previous range given for the same concentration.

Mr Ramsey concluded that the results were consistent with the use of cocaine by the mother within the parameters of the time span covered by the two oldest hair sections i.e. mid June to mid August 2015. He formed this conclusion on the basis that a cocaine metabolite (here Benzoylecgonine) detected along with the presence of cocaine itself, indicates a result consistent with its use. In respect of methamphetamine, this was detected in each of the three hair sections. The metabolite of methamphetamine is amphetamine, this was not detected in the hair tested. However the concentrations of methamphetamine were so significant, in Dr Ramsey’s view, as to explain the absence of the expected metabolite. The breakdown of the ‘parent drug’ i.e. methamphetamine, was at such a gradual rate that it was more consistent with a decreasing use of methamphetamine in the relevant time period.

The fundamental difference of approach between Mr Ramsey (supported by Ms John) and Professor Kintz lies in the SOHT published guidelines for testing for drugs in hair strands. These guidelines are based on research: Cooper, Kronstrand & Kintz Forensic Sci Int 2012. The Guidelines appear to state that a positive test requires at least two of the following indicators to be present: concentration in the parent drug, greater than the positive cut off level; identification of the metabolite; the presence of some specific minor metabolites, which are highly suggestive of use of the parent drug.

Both Ms John and Mr Ramsey do not require these criteria to be met with the same rigidity of approach. Both look more broadly at the rate of breakdown of the metabolites and interpret the ‘Guidelines’ purposively as guides to interpretation and not a straight jacket of rules. Both assure me, and I accept, that in cases which involve intermittent use of drugs, their approach is entirely within the parameters of professional consensus here in the UK. Professor Kintz, who contributed to the writing of the Guidelines and whose views are clearly highly authoritative, considers that the rules are to be interpreted strictly and inflexibly, anything less he considers does not provide strong enough analytical data to establish abuse. The test results, he considers, ‘could’ indicate that the mother had been in an environment where drugs were being used. He opined ‘it is impossible to conclude that the subject has deliberately used drugs of abuse (cocaine, methamphetamine and MDMA)… although I cannot firmly state that [M] did not use any of the detected drugs’.

Whilst this appears to be an unbridgeable philosophical divide, there are readings from the various assays that require to be addressed. The high reading for Benzoylecgonine (0.13ng/mg), i.e. higher than cut off level, plainly requires some explanation. Firstly, it is agreed that Benzoylecgonine is a major metabolite of cocaine. Whilst it can be produced outside the body Mr Ramsey reasoned that metabolised Benzoylecgonine can be differentiated from contaminant by considering its concentration. At a concentration attaining 5% of the parent drug, says Mr Ramsey, that is far more suggestive of metabolisation within the body, thus it follows it was more likely that the cocaine was ingested. In my judgement Professor Kintz proffered no reasoned response to this. His report sets out his approach:

“Cocaine

Stephen Edward Ramsay does not exclude cocaine use. This is based on the identification of benzoylecgonine at 0.07 and 0.13 ng/mg in the last 2 segments, higher than the 0.05 ng/mg recommended by the SoHT (2012). Cocaine, the parent drug was not detected.

This is a complete misinterpretation of the SoHT guidelines (Table 1). To qualify for a positive, first, the parent cocaine must be above 0.5 ng/mg andthen its metabolites, benzoylecgonine or others (cocaethylene, norcocaine …) must be above 0.05 ng/mg. In the case of [M], no parent cocaine was found and therefore the result must be read negative.”

In relation to testing for methamphetamine Professor Kintz follows the same approach:

“There is no doubt that methamphetamine was detected in the hair of [M]”.

The measured concentrations were:

TT214677: from 0.21 to 0.44 ng/mg in the last 4 segments

TT229238: from 0.80 to 1.39 ng/mg in all 3 segments

In the body, methamphetamine is converted into amphetamine, at a rate of 5 and 10 % of the initial dose in blood and urine, respectively. One can expect more conversion in hair. For example, in a controlled study, Polettini et al (Anal Chim Acta, 2012, 13, 726) found that after methamphetamine administration the % of amphetamine was between 7 and 37 %, with a mean value of 15 %.

Using a 15 % ratio, one can expect amphetamine at 0.12 and 0.21 ng/mg with a methamphetamine reading at 0.80 and 1.39 ng/mg, respectively. Using LCMS/ MS, these concentrations are easy to catch … but amphetamine was not detected in the hair of [M]. The absence of the metabolite supports a potential external contamination and therefore I do not share the interpretation of Stephen Edward Ramsay.

Ultimately, this is not a real engagement with the actual findings, it is, in truth, a strong insistence on a ‘clear line’ principle of interpretation. Thus, a reading below the cut off rate for the parent drug can only ever count as a negative finding.

I am bound to say that I find the interpretative reasoning of Mr Ramsey and Ms John to be logically attractive and persuasive. Professor Kintz did not engage with it and offered no counter analysis.

From the laboratory results in 2015, Mr Ramsey could not say other than there had been definite contact with MDMA. The nature of the contact was unascertainable. He observed that the low concentration of MDMA could result in lower concentration of MDA (the metabolite) and that it was therefore possible that insufficient MDA had been metabolised. However, all this was, he said, equally compatible with external contamination. This represented a subtle but significant change in his evidence to HHJ Pearl, where he told the Court that the MDMA and Methamphetamine results were more likely to have been in consequence of ingestion.

All this said it is important to record Mr Ramsey’s view (which I took to be endorsed by each of his colleagues) that the contamination would have been more than merely casual contact as the methamphetamine was found in three sections of hair and thus, to my mind inevitably, indicative of repeated exposure.

In the course of cross examination by Ms Gilling, acting on behalf of R, Professor Kintz was taken to the results from Lextox (Ms John’s laboratory), showing the recordings for amphetamine metabolite (September 2016). These had not been incorporated into the original Lextox report, due to the fact that the results were below the 0.20ng/mg cut off. However, the exercise made it clear that, as the metabolite was found in all sections of the hair, it met Professor Kintz’s own criteria to establish a finding of ingestion. Thus a consensus was established, amongst each of the scientific experts, that there had been ingestion of drugs.

Earlier in this judgment I expressed a view that in cases where detailed data has to be considered and debated, that is most likely to be achieved effectively by a face to face, round the table meeting of the experts involved. Ms Gilling’s focused and intellectually rigorous cross examination enabled the broad picture of the available data to be considered for the first time by Professor Kintz. I strongly suspect that if all the experts had been together this data would have been considered at the experts meeting. Of course, part of the difficulty has arisen because of the strict interpretative approach that Professor Kintz has advanced and which has prevented him from engaging fully with the exchange of ideas. As it happens, his changed conclusions did not require him to abandon his ‘strict’ interpretative approach. Nonetheless, I am quite sure that had he taken a more inquisitive part in the discussions with his colleagues, the raw data would have come to his attention sooner. As I have said above, none of this is to be taken as discouraging experts from other jurisdictions, but it is intended to emphasise the importance of ensuring that there is proper exchange of information and efficient meetings of experts.

Ms Gilling draws together her closing submissions in this way:

“Professor Kintz was of the view that the 2016 results could not be as a result of usage in November 2015. He said if you take drugs in November 2015 you would have 100% result and decreasing incremental to 10%, then 1% and then 0. Hence, this could not account for the results seen in March and April 2016 as it is not possible. It takes 3-4 months for the results to be totally negative.

Professor Kintz accepted in his evidence that when considering the earlier 2014/5 results from December 2014 to May 2015 which are results when [M] reported having taken drugs it is reported positive for methamphetamine but not for the metabolite amphetamine. He says this is why HST is only one part of the picture.

With regards to the differing opinion of Professor Kintz and Mr Ramsay concerning the 2015 cocaine/benzoylecgonine results it is open to the Court to find that Mr Ramsay is more likely to be correct in his conclusion about cocaine having been ingested by [M] when taken together with other evidence.”

Finally, in considering the scientific evidence, it is necessary to address the absence of drugs detected in the 2016 urine tests. Ms Morgan QC and Ms Hughes, on behalf of M, place some emphasis on this. In their closing submissions they address it as follows:

“As the case has developed that regime of urine testing leading to a block of unchallenged clear tests has provided crucial evidence to be placed into the equation when the court evaluates the scientific evidence and places it in the wider context. There is a period of overlap – whatever the length of that overlap may be – arising from the 7 week period when abstinence is confirmed by urine testing and the hair strand test returns a positive report. The import of that is to highlight that the hairstrand test alone cannot confirm use. So it is that when the mother submits that recognising – for example – the view of the experts in relation to the 2016 tests, the court must nevertheless look at the other evidence available to it, she does so not on the basis of wishful thinking but on the basis of other scientific evidence in this case which runs counter to the hair strand readings.

In addition to the block testing, the mother has been subject the prospect of random (“unannounced”) testing from 1 October 2016 to date. In fact, the LA has availed itself of this on only 4 occasions in the past 5 months, but on each occasion the mother, having received notification of the test on the morning of the same, has made herself available to give the requisite sample in supervised circumstances, and on no occasion have illicit drugs been detected.”

That is, if I may say so, a very carefully worded submission. It does not seek to argue that the apparent anomaly of negative urine tests in some way undermines the reliability of the hair strand tests. It could not do so, the integrity of the testing process has been supported throughout by each of the experts. However, Ms Morgan and Ms Hughes, rightly to my mind, insist that it should be factored in to the Court’s broader assessment of the wider scientific canvass. Ms John responded to this line of thought by suggesting that illicit drug use undertaken with relative infrequency might not provide a positive urine test whereas an accumulation in the course of a month might be sufficient to provide a positive hair strand test.

I accept the submission on behalf of the mother that the invalid sample collected on the 24^th September 2016 should not be interpreted as suggesting that it had been tampered with. The creatinine, a waste product present in human urine, in the sample was below the recommended level. This, I am told, probably means that the mother had drunk a lot prior to giving the sample and thus her urine had become diluted. It has been tentatively suggested that this may have been deliberate on the mother’s part. This is purely speculative and does not amount to evidence from which any adverse inference can properly be drawn.

M’s case is succinctly summarised in the prefacing paragraphs of the closing submissions submitted on her behalf:

i.

She has not ingested drugs since the day after [R]’s initial removal – ie 30^th January 2015; save and except for a lapse in November 2015 following his second removal from her care after “positive” hair strand tests were returned;

ii She does not know why it is that there have been hair strand test with readings indicating the presence of drugs said to correspond to periods of time when she has not ingested them. Although she has tried to offer explanations for why it might be, she has done so not from a position of knowledge or expertise. In doing so she is in a position akin to a parent in an NAI case who offers possible explanations for otherwise unexplained fractures;

iii An analysis of the evidence as a whole, does not form a sound basis for making findings that she has ingested illicit drugs other than at times when she has admitted doing so;

iv She would comply with any condition or order (howsoever it might limit her personal freedom) which the court might see fit to impose so as to permit R to return to her care. A supervision order with a regime of unannounced drug testing is one possibility mooted by the mother.

At the conclusion of the scientific evidence Mr Love indicated that the Local Authority’s plan had crystalised and that they were seeking a Placement Order, with a view to adoption. He had opened the case on the alternative basis that if the scientific evidence did not establish illicit ingestion of drugs then the Local Authority considered R should be rehabilitated to the mother’s care. I indicated to Ms Morgan that I considered that decision, by the Local Authority, to be premature and that I would proceed to hear the whole of the evidence on the basis that the full range of welfare decisions were to be considered. Moreover, for the reasons that I have taken some care to explain above, I was not prepared to regard the scientific evidence as determinative until I had the chance to evaluate the mother.

Mr Jason Ward is the key social worker in the case. He has been employed by the London Borough of Islington since October 2005, initially working with unaccompanied asylum seekers and then with looked after children. I note that he gained a BA degree in social work in 2013. When he began his evidence I told him that I was rarely attracted to a binary case advanced by Local Authority with such starkly polar alternative outcomes. Mr Ward told me that he shared my discomfort and had thought carefully about the presentation of the case on this basis. In particular, he told me that if the Court found the mother had been using illicit drugs in the relevant period, he had initially wondered whether that would necessarily indicate that a plan for adoption was the only outcome here.

There were a number of factors which weighed heavily for him. He told me that it had been repeatedly pressed upon M that her boyfriend, DS, was a dangerous relationship for her. He was a known drug user who had used drugs with her in the past on many occasions. He was a real threat to her abstinence. As I have mentioned, at para 20 above, FDAC were particularly concerned as to the lack of insight shown by the mother regarding her relationships with men who themselves use drugs. This was plainly the focus of many discussions, as well as therapeutic input. Mr Ward told me that DS had, in his view, no interest in the child but was pre-occupied with M. This latter point M agreed with.

M, Mr Ward considered, is an intelligent and articulate woman who well understood the advice she had been given as to the nature of the risk DS presented. However, he felt M was an impulsive personality for whom DS remained alluring, at least for a long time after these proceedings began. The mother had also attended a support group called Sex & Love Addicts Anonymous, to address her relationships with men more generally. Mr Ward told me, candidly, that he, whilst determined to be professionally objective, could not help drawing a link between the re-involvement of DS in M’s life (however extensively) and the arrival of the positive hair strand tests, as analysed by Mr Ramsey and Ms John.

However, Mr Ward concluded that if I found, contrary to the mother’s case, that she had been using illicit drugs, then such was the protracted and sophisticated extent of her denial that it was corrosive of the kind of working relationship that would be required to contemplate the rehabilitation of a child to her care. Mr Ward emphasised that the mother had repeatedly shown herself to be capable of being a thoughtful, loving mother, in the context of contact arrangements where she had frequently anticipated R’s needs and devised stimulating play. Mr Ward assessed that the foster carer, to whom R was returned at the breakdown of the rehabilitative plan, was R’s primary attachment figure. The mother, to her credit, agreed with this. I was extremely impressed with Mr Ward. His analysis of the issues struck me as reflective, measured and open minded. Within the somewhat strained confines of the case, I thought he had developed a respectful working relationship with M. I am sure that she would agree.

In common with all the professionals who have encountered the mother, she impressed me as intelligent and articulate. She also struck me as having a rather wry sense of humour. I could easily see why she had been able to ensure contact was such a positive experience for R.

Even though she has been unwavering in her denial that she used illicit drugs during summer 2015, the mother has always admitted a lapse in November 2015 when she acknowledges using crystal meth. Her reasoning for this lapse is not easy to distil and, at best, reveals an immaturity of personality for a woman in her mid-thirties. Essentially, the mother contends that having been wrongly traduced by the emergence of the failed drug tests she determined to demonstrate to the social services ‘what a real lapse looks like’.

In her evidence she was invited to explain how she came by the Crystal Meth. She told me that she had formed an intention to use drugs. She explained that she decided to get hold of them from a NA (Narcotics Anonymous) group meeting. Though the mother was a regular NA attender, she selected a particular group, that she had attended only infrequently. Despite this limited acquaintance, she said that she was sure that, upon her suggestion, a number in the group would immediately agree to relapse and use drugs with her.

The mother told me that she made her overtures during an open group meeting. Two or three people, she said, immediately agreed to use drugs with her and supply them to her. The mother also stated that nobody else in the group offered any discouragement of any kind when she declared her intentions. I found this account to sit uncomfortably with the mother’s assertions elsewhere in her evidence that she found NA a useful and supportive resource. Ultimately her evidence here was, I find, entirely hollow and so unconvincing as to be naïve.

I feel bound to say that I consider the mother to be of sufficient intelligence and insight to realise for herself just how implausible her own account of this matter is. Not only does it lack any coherence but it is entirely devoid of detail. The mother may very well have admitted using crystal meth but, in my judgement, she has been far from honest about the circumstances in which she came by it. I remind myself that a witness in these circumstances may lie for many reasons: R v Lucas [1981] QB 720, [1981] 3 WLR 120, [1981 2 ALL ER 1008); A Local Authority v K, D, L [2005] EWHC 144 (fam)

Here the mother is proffering an admission, it is merely the detail of that admission she is withholding. Her primary source of drugs at this stage in her life had been DS. On her own account, even allowing for her conflicting recollection, she had seen DS twice in the late summer of 2015. I think it likely that it was he who provided the crystal meth in November 2015. The facts point strongly to this inference and the mother’s own unconvincing account of how she came by the drug supports it. When asked directly, in evidence, M denied it.

On the very first day that R was rehabilitated to her care the mother told me that she invited DS to the house. She told me that she was highly motivated to encourage a father/son relationship and to encourage DS to meet his commitments, at least emotionally. Again, I find this entirely unconvincing. Whatever the mother’s motives might have been that day they were not driven by a concern to meet R’s interests. This was her son’s first day back from foster care. A day in which he would be, inevitably, unsettled, require attention and entitled to expect to be the focus of his mother’s attention. A mother who has been consistently observed to meet her child’s needs so skilfully at the contact sessions would have known that on the first day of her son’s return home that would be entirely the wrong moment to introduce his father. I am clear that on that day than the mother was putting her own needs first.

I am fortified in my assessment of this by the fact that only nine days later the mother left her son with her mother to join DS for a night out in central London. At the conclusion of the evening, they spent the night, as planned, at a London hotel. It also needs to be stated, as Mr Ward pointed out, that R (aged 12 months) at this stage did not have a strong relationship with his grandmother, into whose care he had been placed overnight. It is an understatement to say that the mother was placing herself at risk of relapse. She was, on my assessment of the evidence, putting herself directly in danger. I emphasise again, she would have understood this very clearly. Even on her own account therefore, this was risk taking behaviour.

The mother told me that she did not take drugs that night though she is less clear as to whether DS did. She tells me that they were out until late and did not get to bed until between 1.30 and 2am. The mother had explained to me that the evening had been intended to be a bit of a break for her. However, she was up by 7am and returned early to her mother, to resume responsibility for her son. It struck me that having the full time care of a 12month old baby recently restored to her, coupled with a late night out and an early start, the mother must have been exhausted. The mother made no mention of feeling tired at all. Earlier she had told me, in an entirely different context, that when she had taken drugs she could keep going for days without sleep.

I have no doubt that the mother is highly motivated to care for her son. I am also satisfied that she has made some concerted attempts to address her dependency on drugs. However, I have found everything that she has said concerning DS to be implausible. He has been inextricably connected to her drug usage. Ultimately, the connection between the positive drug tests and his role in her life in late summer 2015 is impossible to ignore. It is the feature that unifies the various strands of the evidence and provides the most rational explanation.

I should also add that whilst there are many positives to the mother’s personality I found her to be somewhat uni-dimensional in her outlook. She was eloquent and articulate in the descriptions of her own life and therapy. She had a strong sense of herself as a valiant victim of a difficult childhood. However, she had little sense of her own responsibility for her present predicament. She was notably less eloquent in talking about R’s needs. Indeed, despite being given the opportunity she rarely mentioned them at all. Notwithstanding Ms Morgan’s skilful efforts she really found it too painful to acknowledge that, in respect of the presenting incident in this case, R could easily have been killed. Perhaps it is the very nature of her addiction and her attempt to address it that requires this mother to be so self focused. R quite simply needs more. He needs a stable, secure family life in which he can develop his potential. Having spent most of his childhood in foster care, now at 2 years of age, R’s need for a resolution of these protracted proceedings is pressing.

No Judge severs the relationship between child and parent unless there is no other option, see: Re B (A Child) [2013] UKSC 33. The Judicial task is always to evaluate all the options and undertake a holistic evaluation of the child’s needs, see: Re BS (Children) [2013] 1146, considered in Re B (supra) and in particular the words of Baroness Hale@ [198]:

“ … it is quite clear that the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do”

It is also helpful to revisit the judgment of Sir James Munby (P) in Re G (A Child) [2013] EWCA Civ 965 :

‘we emphasise the words "global, holistic evaluation". This point is crucial. The judicial task is to evaluate all the options, undertaking a global, holistic and (see Re G para 51) multi-faceted evaluation of the child's welfare which takes into account all the negatives and the positives, all the pros and cons, of each option. To quote McFarlane LJ again (para 54): "What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options."

The history of this case, as is at least partly apparent from this judgment, is one which illustrates the wide and impressive range of resources to which this mother has had access. I do not doubt that her lively and engaging manner has enabled her to secure support that others would have been less able to achieve. She could not, to my mind, have had a more committed or more able social worker. Ultimately her persistent inability to engage openly with the various agencies leads both the Local Authority and R’s Guardian to conclude that M is unable to meet the needs of her son in timescales which are in anyway reconcilable with his own. Re B (supra) contains the following passage at para 105:

“the court's assessment of the parents' ability to discharge their responsibilities towards the child must take into account the assistance and support which the authorities would offer. So "before making an adoption order … the court must be satisfied that there is no practical way of the authorities (or others) providing the requisite assistance and support"

I regret to say that I am entirely satisfied that there is no practical alternative to a plan for adoption.