Analysis of Hair Strand Testing for alcohol in Children Act Proceedings (18 April 2011)

By Naila Hussain

Guidance has been provided in the recent case of London Borough of Richmond upon Thams v B [2010] EWCA 2903 (fam) as to the use of hair strand testing for alcohol in Children Act Proceedings.

The mother turned to drinking after being abused as a teenager and therefore had a history of severe alcohol abuse. Her older children were removed from her care and therefore when she became pregnant again the London Borough of Richmond initiated care proceedings in relation to the unborn child. The mother had claimed that she had stopped drinking two years prior to her pregnancy, however, when her hair was tested for alcohol by TrichoTech it came back positive. A second test was conducted by Trimega which indicated that the result was negative and therefore a High Court Judge demanded answers as to the contradictory findings.

The High Court stated that “two different types of hair strand test should be used; in this case, TrichoTech just used one. Hair Tests are not designed to establish abstinence or social drinking, only excessive use. Three month’s growth – about 3cm – should be tested, or it is hard to establish a pattern, TrichoTech did not do this.” The mother added “we are real human beings, not just pieces of hair; I was nearly losing my child”. The results of the other tests and evidence did not indicate that the mother had consumed alcohol in 2009 and therefore she was allowed to keep the baby.

Hair strand testing should be used when there is an issue about whether or not a parent has consumed alcohol at a frequent and excessive rate over a period of time, only then the hair strand testing will still be useful evidence. 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 level of ETG and FAEES found in a hair sample reflects the consumption of alcohol over the whole period covered by the sample, it does not determine the number of times on which alcohol might have been consumed or the amount consumed on each occasion.

However, it is still possible for an individual to seek to reduce the level of detection of alcohol by either shampooing or bleaching the hair or increasing it by using hair products which contain alcohol. If the individual is not being tested for frequent or excessive use then urine, swab or breathalyser tests should be used. The local authority in this case decided that any future testing should be by way of urine testing.

Even though hair analysis has been used for many years for the use of drugs, hair testing specifically for alcohol use is relatively recent and an area which is still developing. Therefore when new scientific tests are being used for forensic purposes it is important that the results can be used in court proceedings and that this is explained so that the court and the parties involved have a full understanding of the evidential basis.

Experts should be reminded of their duties under the Practice Direction “Experts in Family Proceedings Relating to Children” (2009) 2 FLR 1383 due to the serious consequences that their evidence may have on the child or its family. The evidence and conclusion in this case have highlighted the importance of exercising considerable caution when hair strand tests for alcohol are being interpreted and relied upon both generally and particularly in isolation. However, hair strand testing for alcohol will continue to have important evidential value in Children Act proceedings to indicate frequent and excessive consumption. Each case will be different and therefore the most appropriate form of testing will need to be considered when hair strand testing is being used.