A plea for thoughtfulness…

Two pleas for thoughtfulness actually.

Annie of Surviving Safeguarding spoke at the ALC Conference this week. She was like a female, geordie version of John Bishop, only with much darker material. And more swearing. She had a fan queue at the end. There was one thing I wanted to draw out from what she said (there was so much to take from it, but this one thing happened to resonate with my own recent experience) – it was her plea for professionals to think about how their chummy chats and giggles in corners look and feel to the client who is at court, bewildered and fearful of their children being taken – to the client whose only ally is gassing with the enemy”. We all do it. I do it sometimes, although I try to be very mindful of my client’s needs and perceptions. And, as Annie recognised, it is a natural and necessary part of our job – we have to communicate and we have to have functional working relationships with colleagues in order to do our job and achieve results for our clients – and black humour is something we need to get by in a stressful and depressing working environment. An opponent who trusts you is more likely to see your request as reasonable and respond to it, than an opponent who has experienced you as a miserable old cow day in day out*.

But the point is it has a really big impact on how a parent feels and on how they experience what is going on, what is being done to their family.

A client recently raised this very issue with me, having noted the guardian and her lawyer repeatedly spending time in the same conference room as the social worker and her lawyer. He was right to pick up on it, as all of us acknowledged. We were able to talk it through collectively with him and to reassure him. This was possible because the guardian in question was a fiercely independent guardian who is quite happy to give the local authority “what for” and who, I reminded the client, had done just that earlier on in the case, pooh poohing their ridiculous care plan. But actually, it is better not to provoke that anxiety about what’s going on because not all clients are able to articulate that anxiety or to respond to reassurance about it. And in some cases there IS too much cosiness between one team and another and it IS unhealthy. And from the outside both scenarios look and feel exactly the same.

As lawyers we do need to go and hole up with other lawyers to discuss and negotiate and draft, coming back to base to take instructions and inform our clients. But an explanation of what is happening and why, and regular check-ins with clients go a long way. Likewise, going into court on a “counsel only basis” is something I rarely do these days – and where I do I explicitly explain to the client why (usually : just to ask for time, because the judge has specifically requested it) and I often ask the judge to stop if I feel issues are being discussed that my client will want or need to be involved in.

So that is my first plea for thoughtfulness. To all lawyers involved in care proceedings. To social workers and to guardians. Please help parents to trust in the system and in your independence and professionalism. Don’t overdo the chummy thing or the private chat thing.

Second plea for thoughtfulness?

The Transparency Project published the results of a study on adoption targets this week. You can read about that on The Transparency Project blog or on Community Care. It’s tricky stuff. We don’t have all the answers. The study doesn’t lay to rest all those theories about babies being taken to meet targets or secure bonuses – but nor is it proof that those theories are right. It’s complicated innit? Some of the reactions to the study have been (predictably) to say that the study is “proof” of the distorting effect of adoption targets. It isn’t. This study REALLY requires reading beyond the headline. It IS proof that it’s a complicated topic and that more work is needed – and that’s all really. Thoughtful responses to the issues raised by the study are encouraged. How do we get more clarity? How do we reassure parents? How do we make sure that we aren’t inadvertently creating the system that the critics complain of, one that has systemic distortions in it?

 

*yes, I know I’m a miserable old cow much of the time. Moo to you…

Hair Strand Testing – some interesting information

Photo : lab stuff courtesy of iTc on Flickr - thanks!

Hair strand testing of parents (and other family members) is relatively common in family court cases, especially care proceedings. Most judges, and social work and legal professionals working in this field are therefore used to reading the now lengthy reports that are produced by drug testing companies, setting out and analysing the results. Over the years these reports have become increasingly lengthy due to the increasing amount of standard explanatory “blurb” that needs to accompany the bare result to assist with interpretation and in understanding the proper limits on the testing science. There is an evaluative element to hair strand testing, particularly in cases of suspected excessive alcohol use, and it is important to be aware on what the science is and is not capable of telling us and how probative an apparently positive result really is.

In a recent case Lextox reported as follows (the Family Court has given permission for this extract to be published in anonymised form).

Q : The donor of these results has afro-caribbean hair. Is the growth rate of this type [of] hair slower than other types of hair? Would slow growth of this particular type of hair affect the time it would take to show a negative result or have any other impact on the tests results?

When assigning time periods, Lextox use an average growth rate of 1 cm per month as per the guidance from the Society of Hair Testing (SoHT). However it is an average growth rate meaning that in some people hair can grow at faster or slower rates (With a distribution generally between 0.6cm – 1.4cm per month). In addition, the time periods calculated assume that the hair was cut as close to the scalp and as straight to the scalp as possible. Due to the very curly nature of Afro Caribbean hair, this can make cutting the sample close to the scalp difficult. Therefore the time periods are quoted as approximate and should not be over-interpreted.

It is my understanding that Afro Caribbean hair grows at a slower rate than Caucasian hair. A 1 cm section of Afro Caribbean hair may therefore cover longer than the assigned 1 month time period. If [the subject’s] hair has a slower than average hair growth rate then the levels detected would be unaffected however the time covered by the hair analysed would be longer.

It is possible for a donor to provide a positive hair test result for approximately 3-4 months following cessation. This is because with Caucasians approximately 85% of scalp hair is growing at any one time, with the remaining approximate 15% in the resting (non-growing) phase. When an individual has regularly used a drug for example cannabis, stops and continues to abstain from using the drug it usually takes approximately 3-4 months for a person to return a “Not Detected” result. This is because the resting phase of the hair usually last [sic] 3-4 months. As the resting phase consists of only approximately 15% of the hair the levels detected are expected to be at “low levels”. A large decrease would be expected after the first month once an individual stops using cannabis followed by smaller decreases until a “Not Detected” is obtained after 3-4 months.

It is also my understanding that Afro Caribbean hair can have a higher percentage of hair in the resting (non-growing) phases. If this was the case, although it may not take longer to see a not detected result, the decrease in levels may not be as large as seen with Caucasians.

The usual blurb that this firm uses is as follows (I’ve not included all of it, just the bits that seem relevant to this issue):

Normal hair growth is a cycle composed of three stages, active growing (Anagen phase), transition (catagen phase) and a resting stage (telogen phase). There are significant differences in the relative proportions of actively growing hair and resting hair between different areas on the body. Scalp hair has been selected as a test specimen as it grows at a reasonably constant rate, ranging from between approximately 0.6-1.4cm per month with a population average of 1cm per month, and approximately 85% is actively growing (Pragst & Balikova, 2006) (Harkey, 1993).

…the time periods are approximate and calculated with the following assumptions :

  • The donor has a growth rate of 1cm per month
  • That the hair sample was cut as close to the scalp as possible
  • That the hair sample was cut straight with the scalp

A variation in any factors detailed above will affect the approximate time period calculated. …it can take approximately 2 weeks for hair to have sufficiently grown above the scalp to be available for inclusion within a cut hair sample…

When an individual stops taking a drug, it is still possible for low levels of drugs to be detected in a hair sample. This is due to the fact that at any one time approximately 15% of the hair is not actively growing. This hair would contain drugs that would have entered the hair during the period of drug use (Tsanaclis, 2007).

I asked for the extracted information above to be published because it seemed to me to be that although we all know (and are told in the blurb) that there are many caveats, assumptions and limitations to the interpreted results we receive, it is very easy to forget about the need to consider how the information contained in the report matches or jars with the other evidence in the case, before drawing conclusions. The extract highlights the fact that for a parent of Afro Caribbean extraction, there is a greater risk that the assumptions relied upon could lead to the court concluding that the subject has been untruthful about the date of cessation of drug use in circumstances where that was not warranted. There is of course a risk of this in all cases, because all hair growth rate assumptions are based upon an average, but the risk is by definition greater for those who are part of a subset of the population whose hair tends to grow more slowly, is more difficult to cut and test, and which has a tendency to have a higher proportion of hairs in the resting phase. It’s just a risk, but it is not one that is likely to have been actively considered in the absence of any warning in the blurb materials.

I asked Lextox about this extract and whether or not they were aware of any research papers specifically covering the differences between Caucasian and Afro Caribbean hair, and whether they were considering expanding or altering their general blurb to highlight the differences in hair behaviour and characteristics between different ethnicities. They have sent me this response, from which it appears that they consider their general blurb to be sufficient. They did not point me in the direction of any research studies, indeed they did not answer that particular question.

The use of hair testing in family courts is a well-established science in use across the UK in thousands of family law and child care cases annually. Lextox’s expertise lies in the detection of drugs, metabolites and alcohol markers in hair using highly specific and sensitive instrumentation accredited by the United Kingdom Accreditation Service (UKAS). Lextox experts are also members of the Society of Hair Testing (SoHT), an independent international body which provides guidance on appropriate analysis techniques for the detection of drugs, metabolites and alcohol markers in hair. By complying with the SoHT consensus, Lextox therefore provides hair analysis within internationally agreed recommendations.

Among those operating within these guidelines, it is well known that there are a number of assumptions when it comes to hair testing, particularly regarding the time period covered by the hair analysed. It is not possible to determine the exact growth rate of hair on a case by case basis for each individual donor. Therefore, a common assumption regarding hair growth rates is required for use in all cases in order to apply an approximate time period to the specific hair section analysed – this being that scalp hair grows at a reasonably constant rate, ranging from between approximately 0.6 – 1.4 cm per month, with a population average of 1cm per month.  

As such, when assigning time periods to a sample, Lextox uses an average growth rate of 1cm per month as per the guidance of the SoHT to calculate all time periods reported. The SoHT does not recommend that hair types from alternative ethnic backgrounds are treated any differently, although it is also documented generally that scalp hair from donors of Afro-Caribbean descent may grow more slowly, sometimes as slow as 0.5 cm per month. In our opinion this does not differ sufficiently enough from the extreme ranges of Caucasian hair growth rate to have any significant effect on the testing procedures involved, and as such Lextox applies the guidance from the SoHT to calculate all time periods reported. This practice is standard within the industry.

With regards to the percentage of hair in the resting phase, again this cannot be determined on an individual basis, and can only ever be an assumption. As such, Lextox uses the percentages of growing and non-growing hair derived from scientifically published data to help in the interpretation of the analysis results.

In summary, Lextox assesses each hair sample submitted on an individual, case by case basis. Any hair sample that is deemed too curly to section into the requested sections, whether of Afro Caribbean descent or not, will not otherwise be sectioned and this information will be relayed back to the client with a number of options on how best to proceed with that particular sample. In such a case, the assessment is made purely in consideration of the physical nature of the sample submitted, as sometimes the hair is manageable by our suitably trained laboratory technicians to handle and accurately align, measure and section.  

In all cases if a client has specific questions on the analysis results, including those regarding growth rates and the growth cycle of hair, Lextox also considers these on a case by case basis and in doing so responds to all client and court related enquiries free of charge.

This statement (which I’ve quoted in full) refers to the Society of Hair Testing, of which Lextox are said to be members. I’ve no reason to doubt that, but unfortunately the SoHT website does not publish its members, which is surprising. And nor is there anything on their website which helps to illuminate matters. There is no mention of ethnicity or of different hair types in any of the material I can find on that site.

The “consensus” document referred to is on the site, and dates from 2004. It includes the simple line In general, head hair is estimated to grow at approximately 1.0 cm per month.” But otherwise nothing much of relevance to this issue. Read in context it appears this was originally agreed by the members of the society as long ago as 1997.

There is a 2011 “statement” which appears to be good practice guidelines. It includes this passage :

It is accepted that head hair grows at an average rate of 1 cm each month [12] and a sample cut from the posterior Vertex region of the head, close to the scalp is preferred as this region of the scalp is associated with least Variation in growth rates. The amount of hair required for analysis is a “lock of hair” or a pencil thickness of hair. It is important to collect sufficient hair in order to carry out routine tests and to allow for a repeat analysis or confirmation test by a second laboratory.

Concerns are often raised in relation to leaving a visible “bald patch” of particular concern with small children or individuals with baldness or thinning hair. In these cases, collection of several smaller hair samples from multiple Sites, focusing where possible around the posterior Vertex region is acceptable.

Head hair is the preferred sample, however, if head hair is not available alternative collection sites should be considered including pubic, underarm and beard hair. Collection of intimate samples requires consideration for the privacy of the donor while ensuring that the integrity of the collection process is not compromised. Growth rates and dormancy characteristics of hair from these alternate sites, differs from head hair.

The reference [12] is to a 1993 paper : M.R. Harkey, Anatomy and physiology of hair, Forensic Sci. Int. 63 (1993) 9-18, (a time when hair strand testing was emergent, as far as I understand it – indeed the SoHT was founded in 1995).

None of the references to research papers that I can find on the SoHT OR appended to the standard blurb in Lextox reports appear superficially (i.e. based on their title) to relate to the issue of different characteristics of hair taken from particular ethnic groups.

I do not presently have the capacity to track down, pay for and read all of those references, or indeed to search for those not listed – so I may be wrong about this – but it is not entirely clear that there is very much good research about this issue at all, and I wonder (it is no more than that at present) whether when it is said that “it is also documented generally that scalp hair from donors of Afro-Caribbean descent may grow more slowly, sometimes as slow as 0.5 cm per month”, this may mean that this is anecdotally a known issue, but nobody has yet bothered to do any robust research on it.

When I have a moment I will send a copy of this blog post to the SoHT and ask them if there is anything relevant, and will update if and when any response is received.

If anybody has had cause to explore this issue or read the relevant papers in one of their cases I would be grateful for any further light that you can shed on this. I doubt in reality that I will have time to do much follow up any time soon given other commitments.

 

Feature Photo : lab stuff courtesy of iTc on Flickr – thanks!

Falling apart

Someone told me the other day things weren’t all falling apart. I disagree. For me Brexit, the reaction to the High Court ruling and the Trump victory are all symptoms of the same malaise. And they have all happened because of complacency that “we” are right, that “we” know best – because of a failure to recognise that people are unhappy, and that the way we do things is fragile. We take democracy for granted as if it is some magic formula, and we foolishly assume our institutions are impenetrable, permanent. But everything can crumble. And through democracy vast numbers of people are telling us that things are not okay for them.

This morning I lay paralysed in bed waiting for the verdict, cringing at the President elect mouthing all the right words as if they would wipe from our memories his words about grabbing parts of our anatomy, about sexual violence.

As a result my drive to work was late, and as I got going the 9 o’clock pips went. I pressed every channel on my radio to escape the grating sound of that insulting speech being replayed before escaping by putting my music on shuffle and turning up the volume to wash my ears out.

I drove up over the ridge, low sun in my eyes, mountains of fallen leaves either side. I crawled behind a massive, slow tipper truck which sucked the leaves off the verge as it passed and into a whirlwind behind it in its wake. My drive was a blur of sere brown leaves dancing and tossing helplessly in front of me as the truck rolled on oblivious. Led Zeppelin on top volume didn’t help, the sounds of Robert Plant’s plaintiff melancholy wailing and the leaves swirling and the truck trucking gave me a sort of out of body moment. I shuffled. Joni Mitchell, blue. Shuffle. Janis Joplin, Cry baby. That drive felt like the end of days.

I’m back in my body now but I can’t focus. All these events are feeding on one another, and societies are becoming polarised, divided, hateful, dangerous.

Yesterday on my drive to work I listened to the Reith lecture by Kwame Anthony Appiah about why we need to discard the notion of our superior “western culture” or “Western civilisation” as a thing. We don’t own righteousness or culture or democracy – and the way we have constructed to order our society is neither universal nor permanent. It is breakable – and breaking. We need to learn some lessons from 2016. To disregard what has happened as the fault of stupid people would be both arrogant and foolish. We have allowed people to become disconnected, and our systems have failed to acknowledge or respond to their experiences or hear their voice. No wonder there is a growing disrespect for the decisions of even our most senior judges, and a growing willingness to talk hatefully, violently about and to one another in public.

Take family justice and justice generally. We talk about the rule of law. We need to educate people about it and why it is important – to them not just to us – we need to explain what we do and why it is for their benefit. We need to get much much better at it. Perhaps more importantly we need to listen to the increasing clamour of concern from people who don’t trust or are fearful of our courts, who can’t access our courts, who have had a poor experience or suffered an injustice in our courts or our justice system. It would be easy to think these people are on the margins, but they aren’t. They are legion.

The thousand small cuts do matter. The cuts to legal aid, the failure to increase resource to match demand, the squeeze the balloon effect of cuts to local authorities that has devastated early intervention and increased the pressure to take child protection matters to court, the stripping away or corrosion of the presumption of innocence by the exclusive focus on the rights of “victims”, the failure to prioritise transparency so people can see the best and the worst of what we do – the pretence that it is all alright and we have the best justice system in the world. Those of us who listen to people outside the legal bubble know that many, many people do not regard the justice system with the reverence or trust that we do. For these people the rule of law is meaningless and the courts are no solution. So, looking at things from their perspective, why shouldn’t they march on the Supreme Court, particularly if a politician, who should know better, is encouraging it? We have to confront this and respond constructively. What we mustn’t do is retreat into our bunker, as the court seems to have done in the face of a group of ten fathers4justice group recently. We need more openness and more dialogue, not a knee jerk closing down of dissent.

I deplore the pathetic and dangerous response of The Daily Mail and others, and I wish they would choose to behave differently. But it would only worsen the problem to stifle their rantings. We can’t restore trust in our systems of law and government by stifling freedom of speech, but those in government, particularly the Lord Chancellor should make the case and lead the push back against the nonsense in the papers. And our government should really reflect hard on the cumulative effect of years of degradation of our justice system and of our collective failure to listen to the people we serve, whether that be through Parliament, the Government or the Judicial system. We really do have to invest and care for every part of our constitutional structure if we want to maintain it. If we continue to neglect it it will continue to decay and crumble and we will all eventually regret it.