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Drug testing scandal in the UK—could it happen here?

By January 9, 2018October 25th, 2021No Comments

By Gianna Huesch

Drug testing is frequently used in family courts around the world when there is concern over parenting capacity in custody disputes. Although parental drug use is only one factor of many weighed up by courts in determining the best interests of a child, it is still a factor that can affect outcomes of court cases.  As such, it is of the utmost importance that the evidence provided through drug screening tests is reliable.

However, a major scandal has now erupted in the UK over drug tests used in thousands of court proceedings both in criminal cases and family law matters, resulting in fears that children have been incorrectly removed from parents on the basis of evidence now being treated as “potentially unreliable”, according to The Guardian.

A UK government investigation revealed that data at a testing laboratory “may have been manipulated”, initially leading to more than 10,000 criminal cases in England and Wales being reviewed, and now having “spread to encompass all child protection proceedings [since] 2010, in which drug and alcohol testing had been carried out by the same company”.

A company linked to the lab under investigation “at one stage carried out about half of all hair strand alcohol and drug tests ordered by the family courts” including in cases “where substance abuse was a decisive factor in whether children could remain in the care of their parents”.

In the UK, the government’s forensic regulator Gillian Tully has now said that “regulation of forensic evidence used in the family and civil courts does not fall within her remit”, which only covers forensics used by the criminal courts.  The current situation has prompted her to “raise concerns [with the policing minister] about the lack of oversight of forensic companies working for the family courts”:

“This case does point to the fact that having regulation in the criminal system and not in the family court system is anomalous and that gap should be addressed,” Tully said.

Although UK officials are stating that it is “unlikely that decisions about the welfare of children will have been taken solely on the basis of toxicology test results”, The Guardian notes that “public judgments show that such tests can have a profound impact on care proceedings”, for example pointing out that:

“In a 2012 case, in which Trimega gave flawed evidence, Mr Justice Jonathan Baker told the high court that two children would have gone into care had the sample not been checked by another laboratory.

[The judge] warned at the time: “Erroneous expert evidence may lead to the gravest miscarriage of justice imaginable – the wrongful removal of -children from their families.”

With a scandal of this magnitude happening in the UK, parents in Australia going through family court proceedings involving court-ordered drug testing may well find themselves questioning whether this could happen here.

In Australia, for use in family courts, drug tests have to comply with Australian standards and initial screening tests also need to be followed up by ‘confirmation tests’ which are more sensitive and specific than initial screening tests. Such confirmation tests then also need to comply with various international standards.

Companies providing drug screen evidence to the Australian family courts are required to be accredited by NATA, the National Association of Testing Authorities Australia, which says it “checks the checkers”.  According to its website, “NATA is independent of Government and operates under a Memorandum of Understanding with the Commonwealth”, at the time of signing represented by the Department of Industry, Innovation, Climate Change, Science, Research & Tertiary Education, now the Department of Industry, Innovation and Science and headed up by the Hon Arthur Sinodinos AO.   The NATA Memorandum of Understanding has however apparently not been signed by all States.

As the UK’s forensic regulator is quoted in The Guardian‘s story as saying:

“While companies carrying out drug, alcohol and DNA tests for the family courts need to be accredited, this [does] not amount to oversight.”

So does Australia too need better scrutiny of drug testing in the family courts to avoid potential miscarriages of justice happening here? We will attempt to gain some official clarity on the Australian situation and keep you posted…

FURTHER READING:

In the news: The Guardian

Our previous blog on drug testing

Our previous blog on medical marijuana use and family law

Need family law advice? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400 for an initial no-obligation, cost-free consultation.

Please note that our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance.

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