D, Re (Children: Interim Care Order: Hair Strand Testing)

Factual and Procedural Background

This appeal concerns a family law case involving four children—three girls and one boy—subject to interim care orders issued under Part IV of the Children Act 1989. The children had been placed with their maternal grandmother and maternal uncle since mid-2023 following hospital admissions of one child due to suspected ingestion of medication. The Local Authority initially supported this placement under section 20 of the Children Act 1989 and later sought care orders and interim care orders based on concerns including hair strand drug testing results indicating exposure to various drugs.

The maternal grandmother and uncle were assessed as connected persons and approved as temporary carers. Hair strand testing was conducted on the children and later on the mother, maternal grandmother, and uncle. The Local Authority applied for removal of three girls from the grandmother and uncle’s care, citing refusal to cooperate with further testing and concerns over drug exposure. The Judge at the Central Family Court authorized removal based largely on hair strand test reports.

The mother successfully applied for a stay of the removal order pending appeal, filing additional hair strand testing evidence. The appeal court reviewed the original and fresh evidence and considered submissions from the mother, Local Authority, and Children’s Guardian before allowing the appeal and setting aside the removal order, leaving the interim care orders in place.

Legal Issues Presented

1. Whether the Judge was correct to authorize the removal of the children from the maternal grandmother’s care based on the hair strand testing evidence.
2. Whether the hair strand testing reports were properly interpreted and given appropriate weight in the context of the wider evidence.
3. Whether the Judge erred in refusing to adjourn the removal hearing to allow further independent hair strand testing as recommended by an expert toxicologist.
4. Whether the emotional and psychological impact of removal on the children was adequately considered.
5. Whether procedural fairness was observed in the conduct of the removal hearing, including the participation of the maternal grandmother, uncle, and children.

Arguments of the Parties

Appellant's Arguments

• The Judge erred in concluding that the children would not be safe in the care of the maternal grandmother for a short period to allow further testing.
• The Judge wrongly treated the general opinions in the hair strand testing reports as conclusive evidence of exposure to Class A drugs without adequately considering the detailed data and wider evidence.
• The refusal to adjourn for further testing, as recommended by the expert toxicologist, was unjustified.
• The emotional impact of removal and school changes on the children was not properly weighed.
• The mother’s counsel highlighted that the Judge likely received a distorted impression of the hair strand test results due to inadequate presentation by advocates at first instance.

Respondents' Arguments

• The Local Authority and Children’s Guardian argued that the mother’s appeal lacked a real prospect of success.
• They contended the Judge took a holistic view of the evidence, including acknowledging the good care provided by the maternal grandmother.
• The Children’s Guardian supported removal based on escalating concerns about the placement’s safety, withdrawal of cooperation by the grandmother and uncle, and drug exposure indicated by the earlier hair strand tests.
• Accepted the admission of fresh evidence if the appeal proceeded but maintained the original decision was justified on the evidence then available.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Re C (A Child) (Interim Separation) [2019] EWCA Civ 1998	Interim removal of children requires necessity and proportionality; removal only justified where child's safety or welfare demands it.	Guided the court’s assessment of whether removal was necessary and proportionate; emphasized the high standard of justification required for interim removal.
Ladd v Marshall [1954] 1 WLR 1489	Criteria for admitting fresh evidence on appeal.	Applied to admit fresh hair strand and nail testing evidence filed after the original hearing.
Re E (Children) [2019] EWCA Civ 1447	Considerations for admitting fresh evidence in family proceedings.	Supported the court’s decision to admit new testing reports into the appeal.
Islington v M [2017] EWHC 364 (Fam)	Hair strand testing evidence must be considered within wider environmental and social context; such evidence is not conclusive alone.	Informed the court’s caution in interpreting hair strand test results and the need to consider broader evidence.
Re H (A Child: Hair Strand Testing) [2017] EWFC 64	Experts must clearly explain hair strand test results; courts should avoid pseudo-certainty and consider numerical data alongside other evidence.	Guided the court’s criticism of the presentation and interpretation of hair strand test reports at first instance.
Re DE [2014] EWFC 6	Removal of a child under a care order should be on notice unless immediate removal is required for safety.	Supported the view that the Local Authority’s late and short-notice application for removal was procedurally deficient.
G v N County Council [2008] EWHC 975 (Fam)	Removal into foster care can make return applications more difficult; courts should weigh this impact carefully.	Referenced to emphasize the lasting consequences of interim removal and the need for caution.

Court's Reasoning and Analysis

The court undertook a detailed review of the hair strand testing evidence, including three sets of reports initially relied upon by the Judge and additional reports filed after the hearing. The analysis revealed significant discrepancies and qualifications within the toxicology data that were not adequately reflected in the expert summaries or the advocates’ presentations at the first hearing.

The court noted that the Judge had misunderstood the timing and significance of the hair strand tests, erroneously treating them as conclusive evidence of ongoing exposure to Class A drugs, despite the samples being taken months prior and the presence of diminishing or absent drug traces in later periods.

The court emphasized established legal principles that hair strand testing evidence must be interpreted cautiously and in the context of wider social and professional evidence, such as observations of the children's welfare and the carers' conduct. The Judge had not sufficiently considered the positive assessments of the maternal grandmother and uncle, nor the absence of evidence of drug use by the adults caring for the children.

The court found that the Judge erred in not granting an adjournment to allow further independent testing as recommended by the expert toxicologist, which would have provided more reliable evidence. The court also identified procedural deficiencies, including the lack of participation by the maternal grandmother and uncle at the removal hearing, the absence of the children’s views, and the late disclosure of critical evidence.

Overall, the court concluded that the evidence before the Judge did not meet the high threshold of necessity and proportionality required to justify the immediate removal of the children from their family placement.

Holding and Implications

The appeal was ALLOWED. The court set aside the part of the order authorizing the removal of the three girls from the care of their maternal grandmother and uncle. The interim care orders remained in place, and the Local Authority indicated that it would not seek removal on the current evidence.

The decision directly affects the parties by permitting the children to remain in their family placement pending further proceedings. No new legal precedent was established; rather, the judgment reinforced established principles regarding the cautious interpretation of hair strand testing evidence, the necessity of holistic evidential evaluation, and procedural fairness in family law removals.