Public law care proceedings are legal processes in which the state (through local authorities) seeks to intervene in a family's life to protect a child. These proceedings are initiated when there are serious concerns about a child's welfare, often due to issues such as neglect, abuse, or a parent's inability to care for the child due to issues like substance abuse or mental health problems.

In public law care proceedings, the court decides whether a child should remain in the care of their parents or whether the state should intervene and place the child in foster care or with other suitable guardians. These proceedings are governed by laws, including the Children Act 1989 , which sets out the framework for protecting children's welfare and making decisions about their care.

In public law care proceedings, the welfare of children is always the paramount concern. Courts and social workers must gather comprehensive evidence to ensure that children are protected from harm and that their best interests are served. One of the tools that has gained attention in recent years for gathering evidence in these cases is hair strand testing. This testing, which can detect a range of substances, including drugs, alcohol, and even certain medications, is being increasingly used in proceedings where parental substance abuse is a concern.

But is this a necessary and reliable method for determining a parent’s suitability to care for a child? Or does it raise more questions about privacy, fairness, and human rights? In this blog, we will explore the role of hair strand testing in public law care proceedings, its benefits, and the potential ethical issues it brings to the table.

What is hair strand testing?

Hair strand testing involves analysing hair samples to detect the presence of drugs, alcohol, or other substances. Unlike urine or blood tests, which provide a snapshot of substance use over a short period, hair testing can give a longer-term picture, as substances remain embedded in the hair for weeks or even months after consumption. This can provide a detailed history of a person’s substance use and reveal patterns that may not be immediately visible through other testing methods.

The test is non-invasive, which makes it more appealing than other forms of testing in cases where parental cooperation might be an issue.

Why is it used in care proceedings?

Hair strand testing is most often used when there are concerns about parental substance misuse in care proceedings. In cases where there is suspicion or evidence that a parent is struggling with addiction, the courts need to assess whether this substance use is affecting their ability to provide a safe environment for their child.

For example:

• A parent might be accused of neglecting their child due to alcohol abuse or drug addiction.
• A child may have witnessed erratic or dangerous behaviour as a result of parental substance misuse.
• There may be doubts about a parent's claims of sobriety or their ability to remain abstinent from drugs or alcohol.

Hair strand testing helps answer these questions, offering objective data that can support or contradict claims made by parents or social services. Additionally, it can help courts make informed decisions about whether a parent is capable of rehabilitation and whether a child can be safely returned to their care.

Case Law: R (A Child: Care Order) [2017] EWHC 364 (Fam)

In R (A Child: Care Order) [2017] EWHC 364 (Fam) , Mr. Justice Hayden emphasised the importance of treating hair strand testing with caution. In this case, the judge noted that while hair strand testing can provide useful information, it should “never be regarded as determinative or conclusive” in public law care proceedings.

This case highlighted the need for a holistic approach when evaluating a parent's fitness to care for their child. While hair testing can be a crucial part of the evidence, it must be considered alongside other factors, such as the parent's emotional and psychological wellbeing, their relationships with their children, and other aspects of their behaviour. The judgment serves as a reminder that courts must not place undue weight on hair strand testing alone when making decisions about a child's future.

This case law is crucial because it reinforces the principle that evidence in family law cases should be considered in its entirety, with no single piece of evidence being seen as conclusive. Hair strand testing, despite its usefulness, is just one tool in a broader evaluation process.

Benefits of hair strand testing

1. Long-term detection: Unlike blood or urine tests, which only capture recent substance use, hair strand testing can detect use over a longer period, sometimes up to six months. This is particularly important in assessing patterns of behaviour rather than isolated incidents.
2. Accuracy and reliability: Hair testing is considered to be more difficult to manipulate than urine or saliva tests, providing more reliable results. This makes it an important tool in situations where there may be concerns about the accuracy or honesty of a parent’s statements.
3. Non-invasive: The process of taking a hair sample is simple, relatively quick, and non-invasive, meaning it can be done without causing distress to the parent or child involved.
4. Independent evidence: Hair strand tests provide an independent, scientific form of evidence that can corroborate or challenge other testimonies, ensuring that decisions are based on objective findings.

Challenges and concerns

Despite the clear benefits, hair strand testing also presents several challenges and concerns that must be addressed:

1. Privacy and human rights issues: One of the most pressing concerns with hair testing is the potential invasion of privacy. Parents may feel that the test is an unnecessary intrusion into their personal lives. The decision to conduct such a test can raise questions about balancing the need for evidence with respecting an individual’s right to privacy and bodily autonomy.
2. False positives and negative results: There is a risk of false positives, where substances detected may not actually indicate harmful usage. For instance, environmental exposure to certain substances or contamination of the sample can sometimes lead to misleading results. Furthermore, if a parent has abstained from substance use during the time the hair sample was taken, the test might not reflect the parent’s current condition, potentially impacting the court’s perception of their fitness to parent.
3. Contextual issues: Hair tests do not offer a full picture of the circumstances. For instance, while they can confirm drug or alcohol use, they cannot explain the extent to which the use affected the parent’s behaviour or ability to care for the child. Substance misuse may also be part of a broader set of issues, including mental health conditions, domestic violence, or trauma, which require a more nuanced and holistic approach.

Balancing the evidence: the role of hair strand testing in care proceedings

Hair strand testing can provide valuable evidence, but it should never be the sole determining factor in public law care proceedings. It is crucial that the test results are considered alongside other types of evidence, including expert assessments, social worker reports, and the statement of the parents and others involved in the child’s life.

Courts must carefully weigh the evidence and take into account the full range of a parent's circumstances. While hair testing can provide insights into substance misuse, it cannot assess a parent’s emotional or psychological capacity to care for their child, nor can it determine the quality of the parent-child relationship.

Ultimately, hair strand testing must be seen as just one tool among many. It is an important part of the evidence-gathering process, but it must be used responsibly and with sensitivity to the broader context of the case.

Conclusion

Hair strand testing in public law care proceedings is a powerful tool for assessing parental substance use and protecting children’s welfare. However, its use must be balanced with consideration of ethical concerns, potential inaccuracies, and the broader context of each case. While it offers important insights into a parent’s behaviour, it is not a catch-all solution for determining fitness to parent. Courts must ensure that all evidence is weighed carefully and that decisions are made with the best interests of the child at the forefront.

As the use of hair strand testing continues to evolve, it will be important to monitor its application and ensure that it is used appropriately within the legal and ethical frameworks that govern child welfare proceedings.

At Switalskis, we understand how complex and emotionally charged care proceedings can be. Our Child Care team is committed to providing clear, compassionate, and expert advice to families navigating these challenging circumstances.

If you’re facing public law care proceedings and need support or guidance, contact our team today. We’re here to help you understand your rights and work towards the best outcome for your family.

Get in touch on 0800 138 0458 or email us at childcareenquiries@switalskis.com