Max Melsa appears in Court of Appeal in Re D (Children: Interim Care Order: Hair Strand Testing) [2024] EWCA Civ 498

Max Melsa represented the children, through their Children’s Guardian, in the first case to reach the Court of Appeal specifically dealing with the interpretation of Hair-Strand Tests in care proceedings.

The appeal was made by the mother against the interim separation of three children from the maternal grandmother’s care, who had been caring for them under Interim Care Orders within the proceedings. Separation was applied for by the Local Authority following receipt of further Hair-Strand Test results for each of the children that returned positive results, which included for the time period for which they had been in the maternal grandmother’s care.

The case sets out a summary of the previous case precedents as to the interpretation of test results, and in particular three themes from those judgments (at [47]):

1. That hair strand test results cannot be viewed in isolation, separately from wider environmental factors;
2. That experts must fully and faithfully explain their findings; and
3. That reports must make sure as far as possible that the results are explained in a way that reduces the risk of being lost in translation.

The case also sets out a checklist for all Advocates dealing with applications that require interpretation of test results (at [58]):

1. Draw the Judge’s attention to what the science can and cannot tell you;
2. Carefully examine the hair strand test reports in full; as far as it is thought helpful or appropriate to do so, they should distil their contents accurately so as to provide the Judge with a reliable summary, not just a rehearsal or précis of the general ‘Summary’ or ‘Opinion’ section;
3. Assist the Judge to consider the hair strand test results in the context of the whole of the evidence, including:
   1. The statements of those who are alleged to have exposed the children to the drugs identified;
   2. Other evidence (i.e., from observations) which may suggest drug use within the home;
   3. Other evidence which may suggest that drugs are not used within the home;
   4. The presentation of the children and the adults;
   5. The history of the family generally.

It is emphasised that taking this approach is all the more important where test results are described as being in the “lower range.”

Max was instructed by Sabina Mahmood of Campbell Chambers Solicitors.

View the full judgment here.