England and Wales Family Court Decisions (other Judges)

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Case No. ZC16C00115

IN THE CENTRAL FAMILY COURT

First Avenue House

42-49 High Holborn, WC1

Thursday, 11^th May 2017

Before:

HIS HONOUR JUDGE TOLSON, QC

(In Private)

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B E T W E E N :

LONDON BOROUGH OF SOUTHWARK

Applicant

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(1) M

(2) W

(3) A

Respondents

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MR W. DEAN  appeared on behalf of the Applicant Local Authority.

MR M. TWOMEY QC  appeared on behalf of the First Respondent.

MR A. POWELL  appeared on behalf of the Second Respondent.

MS B. HECHT  (Solicitor, Hecht Montgomery) appeared on behalf of the Third Respondent.

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J U D G M E N T

JUDGE TOLSON:

1. This is the final hearing of care proceedings involving a young boy, W, born on the 12^th February 2016.  That is now some fifteen months ago.  W has been the subject of care proceedings for his entire life because the case began on the 15^th February 2016.  The reason for the local authority's involvement in W's life centred upon his mother's past difficulties with drugs.  I need not detail those, nor consider the threshold criteria in the case for that is conceded.

2. By the time this final hearing was reached, all parties were agreed that the signs were that the mother had turned her life around.  But for one element in the case, it was common ground that W should be placed in the care of his mother.  The element in question was the hair strand testing for drugs, which had been commissioned as a part of the court process.  The outcome of two of three tests, ordered by the court, stood in some contrast to what appeared to be the situation on the ground.  As I have said, the mother appeared to have turned her life around.  She claimed to be drug-free.  That contention was supported by one test.  But two others appeared, at least initially, to give the lie to the mother's case because tests conducted by two laboratories, Lextox and Alere, purported to show levels of a metabolite of cocaine in her hair.  In the case of the Lextox result, there was a recording for the month of November to December 2016 of 0.08 nanograms per milligram, and in October to November of the same year, of 0.16.  In the case of the Alere result, there were recordings across the period of July to November 2016 of 0.09, 0.09, 0.32, and 0.24 respectively.

3. It is important to note that there was no positive recording of any cocaine itself within the hair, only the metabolite.  The Lextox recordings for cocaine are "nil detected", and the Alere recordings are of levels below the cut-off point. 

4. As reported by the laboratories – I give the wording used in the Lextox report - the findings of the metabolite "indicated" the use of cocaine.  At other points in the inquiry which then followed, representatives of the laboratories maintained that the findings were "consistent" with the use of cocaine.

5. In order to resolve these difficulties, the court commissioned a report from a trichologist, Dr Rushton.  The substance of his opinions are, first, that if the reporter was to act in accordance with the guidelines which apply to testing of this kind it is not permissible to report that a subject with the Lextox and Alere results had ingested cocaine,.  This is because, for a positive result to be reported, traces of both the cocaine and the metabolite have to be found.  This, Dr Rushton explained, is because the metabolite of cocaine is a substance found in the environment, and accordingly, the results could be explained as a result of contamination.  Dr Rushton went on to record that with findings of this kind it would be incumbent upon a laboratory to test the washes used to cleanse the hair before the testing process began, in order to assist in determining whether the results were explained by environmental contamination or not.

6. This dilemma over the hair strand testing explains, at least in part, why it has taken fifteen months for this case to reach final hearing.  It first came before me last week for an issue resolution hearing, at which, in the light of the whole picture that had emerged of the mother and her care of W, I raised a number of points.  First, taken at its height, my concern was that these results could at worst indicate only a low level of cocaine consumption.  Would it in these circumstances be proportionate to separate mother and child?  Beyond that, I indicated that I wished to hear merely from Dr Rushton and not from the original three laboratories.  This was because Dr Rushton was the jointly appointed expert to comment on these matters.  It was not clear to me that the reporting authors from the laboratories had the necessary expertise.   Moreover, there had already been a meeting between the personnel involved at which their views were clear.

7. I determined that the final hearing would begin as scheduled.  We would hear from Dr Rushton first and then take stock.  Dr Rushton gave evidence.  It was in line with his report, but he went further.  He was asked to comment upon the significance of the third, entirely negative, test which had been conducted by AlphaBiolabs.  His view was that this was strong support for the idea that the positive findings of the metabolite in the other tests might well be the subject of environmental contamination.  It was possible for the testing process to effectively destroy drug and drug by-products within the hair (and so produce a 'false negative' result) but that would be unusual.  Asked the central question in the case, he offered the view that the most likely explanation overall for the results found as a result of the testing, was that the positive recordings were the result of contamination from the environment rather that the result of ingestion of cocaine.

8. The local authority is, essentially, prosecuting the case and it is understandable why it would wish to maintain its primary case which is that the mother may, in fact, be someone who has ingested drugs despite her protestations to the contrary.  But in a display of realism it also presented an alternative plan for W's future, namely the making of a supervision order and, under that supervision order, a return for W to the care of his mother - a return which involved intensive support from the local authority. 

9. In the circumstances, the local authority decided to take a course which I regard as sensible.  If the court accepted the evidence of Dr Rushton (as I do) it agreed it would not be proportionate to make a care order, but to adopt the alternative plan and return W to the care of his mother.  The local authority thus leaves responsibility for the outcome firmly with the court and I believe the court should take on that responsibility. 

10. Having accepted Dr Rushton's evidence, it would not, in my judgment, be in W's best interests for him to be in any form of care other than care provided by his mother.  A supervision order is the right result.

11. After some hesitation, the local authority is content to accept responsibility for the supervision order, notwithstanding that W may not be living within the local authority's own area.  Again, I am grateful to the local authority for adopting that sensible course of action.  It is one which commands complete support from W's guardian and, indeed, from W's own parents.

12. In those circumstances, only one other matter arises for my decision today.  That is the amount of time which W's father should be spending with W in future.  He has been consistently enjoying supervised contact to W for a long while, regularly once each week.  W's father has also had substance abuse difficulties in the past, and there are a number of concerns about him.  Past, although perhaps distant past, violence, and a criminal record.  Nevertheless, it seems to me that the focus of my attention ought to be his behaviour around W himself.  It is rightly pointed out to me that there is no suggestion that any of the father's past difficulties have surfaced in the context of the time he spends with W. 

13. The local authority and W's mother join forces on this issue to suggest to me that, for at least the foreseeable future, W's time with his father should continue to be supervised.  The local authority points first to the risks created for W in what is known of the father, and his past behaviour.  But it adds a second string to its bow, namely pointing to the fact this might be the wrong moment to introduce any significant change, both in a sense for W himself, but also for W's mother, who is to take over his care and does not need the diversion that might be created by a significantly altered contact regime.  In the words of Mr Dean for the local authority, "W's mother needs to feel safe, secure, and supported."  Tentatively, Mr Dean puts forward a suggestion that there might be a move on from supervised contact, which he accepts has to happen at some point, in about six months' time.  That approach is endorsed by Mr Twomey QC on behalf of the mother.

14. By contrast, Ms Hecht submits that we already know all we need to know about the father, and how he handles his time with W.  There have been about ten months during which the father has more than proved himself.  She can claim support from W's guardian, Ms Delap, and indeed, Mr Powell, in his submissions to me, emphasises that the guardian has moved on in her thinking and supports the idea that contact should now occur fortnightly for four hours, and be unsupervised, save that the handover of W to his father should be monitored.

15. In my judgment, placing, of course, W's interests first and as my paramount consideration, the arguments advanced on behalf of the mother and the guardian meet the first of Mr Dean's two points.  In terms of risk posed by the father, we must move on.  I do feel, however, that there remains some force in Mr Dean's second submission that this might not be the right moment, and I return to the local authority's plan which sees a significant lessening of social work involvement, approximately 12 weeks from now.  That, it seems to me, should mark the outer limit on supervised contact.  I am content to leave it to the discretion of the local authority to remove supervision before then, but it should be removed, at the latest, 12 weeks from now.  In my judgment, W should be spending time with his father in natural surroundings, rather than the artificial surroundings of a contact centre.

16. There is a need here, in my judgment, for contact to have reached what I shall characterise as "normality" before the end of the supervision order, which will be in place for the next 12 months.  By normality, I do not simply mean the four hours fortnightly unsupervised contact proposed.  I see that rather as a stepping stone, and I see no reason why the ambitions of all in this case should not be to move W on to a relationship with his father, which is the ordinary kind enjoyed by a separated parent.

17. I intend to say no more about it than that in this judgment.  The order will be that there will be four hours fortnightly time with the father, unsupervised, beginning three months from now, which is the 4^th August, I think.  But the order should, in its preamble, record that the parents should do their very best to agree developments in contact beyond that stage.  I would hope the case does not have to return to court.