Nottingham City Council v Mother & Ors [2025] EWFC 86 (B)

[2025] EWFC 86 (B)Date 19 March 2025
IN THE FAMILY COURT AT NOTTINGHAM
Before
RECORDER WILLIAMS
Between
NOTTINGHAM CITY COUNCILApplicantMOTHERRespondentsFATHERRespondentANNERespondentMs Conroy for Applicant Local AuthorityMs Bloomfield for MotherMs Brookes for FatherMs Nickson for childHearing – 17 & 18 March 2025
JUDGMENT
RECORDER WILLIAMS:

Introduction:

[1]In this case I am ultimately dealing with the future welfare decision of a single child, Anne. Anne’s date of birth is in January 2021 and she is therefore a little over 4 years of age. She is currently at pre-school and will be starting full time schooling in September 2025. Anne’s mother is M and her father is F. Her allocated social worker is Gemma Shreh and her CAFCASS guardian is Leah Crombie.

History of the case:

[2]These are public law proceedings in which the local authority’s current application is for a care order for Anne. It is highly possible that this will not be the local authority’s final position, but the proceedings are currently ongoing in respect of what the final welfare decision will be. Until very recently the local authority’s plan was that there should be care and placement orders for Anne, with her ultimately being adopted. Neither the local authority nor Guardian in the written documentation provided prior to this hearing supported there being a return of Anne to the care of her mother.[3]It is of relevance that these are not the first set of proceedings involving Anne and her mother. The local authority issued proceedings in June 2021 following the mother being found significantly under the influence of alcohol whilst caring for Anne when she was a few months of age. The mother accepted that she had consumed chronic excessive levels of alcohol from December 2020 to June 2021 and had exposed Anne to risks associated with her alcohol consumption. The mother demonstrated abstinence from alcohol throughout the entirety of those proceedings which led to the making of a supervision order by DDJ Anwar on 21 January 2022.[4]The supervision order ran its course and concluded in January 2023, with the local authority ending its involvement. There was a police call out in April 2023 with concerns about the mother’s alcohol use and, another one in October 2023. The mother’s family reported issues on a night in October 2023 and another evening in November 2023. On both occasions the mother was said to have been drinking. The local authority re-opened Anne to being on a child protection plan in January 2024 but the mother didn’t engage. Matters came to a dramatic head on 7 April 2024 when the mother was found incapacitated at home through alcohol use with Anne in her care. When the police attended the mother was unconscious and could not be roused. Anne was awake and jumping on the bed next to her mother. Anne went into the care of a family friend and then subsequently in October 2024 into the care of foster carers, where she remains to this day.[5]This hearing is listed as a final hearing. On 7 March 2025 there was an application to vacate this hearing for several reasons, none of which related to the mother’s ability to care for Anne but related to the possibility of other individuals caring for Anne rather than the mother. These potential alternative carers are as follows: i. CN & VD ii. GN iii. The current foster carers.[6]The local authority was not able to proceed to an ADM meeting with these potential alternatives to adoption outstanding. HHJ Gillespie heard the application on 13 March 2025 and ordered that this hearing remain listed, ultimately allowing me to decide how the three days listed would be utilised.[7]On the morning of 17 March 2025, the social worker and guardian had the opportunity to speak to CN and GN. There is already a negative viability assessment of CN and VD dated 14 February 2025, the conclusions of which are challenged by CN. Without any input from myself there was an agreement by the local authority to undertake a full assessment of both sets of alternative carers before reconsidering their final position in this case. There appeared to be a degree of positivity about both sets of carers, particularly GN. For the avoidance of doubt this is what I would have ordered in any event.[8]From the papers (and what I was told) it appeared on the current evidence that the realistic options for Anne are as follows: i. A rehabilitation into the care of her mother under some form of public law order; ii. A placement with CN & VD; iii. A placement with GN; iv. A placement either a long-term fostering placement or an adoptive placement with the current foster carers.[9]A placement of Anne for adoption in another placement would appear to not currently be realistic, given the possibility of her being adopted within her current placement. However, I am not making this as a determination at this stage, it just appears to be a realistic statement to make. At the time of writing this judgment I am confident from what I have heard that either a family placement (including with the mother) or a placement with the current carers will be the final welfare decision for Anne.[10]There was agreement that we should start the case so that a decision could at least be reached on the factual basis of the mother’s alcohol consumption. There was also agreement that the case should go further than a factual decision and we should also hear from Dr Pool (psychiatrist) who had been warned to attend on the afternoon of 17 March 2025. All parties acknowledged that this would mean the case was part-heard and would require listing forward with the availability of the parties in mind.[11]Given that the case was going to be listed part heard I expressed a wish to hear as much evidence about the welfare picture that was not going to change at this hearing. Ms Bloomfield having taken instructions confirmed that the parenting assessor, was not required. I sought parties to consider whether I shouldn’t also hear from the social worker and the guardian regarding their position on the mother. In their written evidence they had both taken fairly stark positions which suggested that regardless of other factors changing, their position on the mother caring wouldn’t change. I specifically didn’t seek to criticise this position but noted that if that was their position it seemed appropriate to simply hear their evidence and any challenge to that position.[12]After lunch on the first day the social worker and guardian both accepted (despite what is written in their final evidence) that they would want to reconsider the mother’s ability to care with the support of these various people. I therefore agreed that it was not appropriate for them to give evidence at this time and that their evidence would have to await the adjourned dates of the hearing.[13]This hearing has therefore been limited to hearing from JM (a senior reporting scientist from FTS), Dr Pool and the mother. I heard from JM and Dr Pool on 17 March 2025, before hearing from the mother on 18 March 2025 and submissions on the factual matters on the same date. The parties agreed directions for the filing of updating assessments and updating final evidence in April and May to allow for final welfare hearing at the beginning of June. I will consider the further directions later within this judgment.

Factual dispute to be determined

[14]This judgment and the two days of evidence were principally to decide the factual dispute between the local authority and the mother regarding how much alcohol (if any) the mother has consumed in the past 13 months. The local authority confirmed within its final submissions that it seeks to prove the following pattern of behaviour (in keeping with the results of hairstrand testing undertaken within these proceedings): i. From February 2024 until 7 April 2024 : That the mother consumed alcohol at a chronic excessive level, culminating in the events of 7 April 2024; ii. From 7 April 2024 – 3 May 2024 : It is accepted that the mother either didn’t drink alcohol or used alcohol to such a low level that it was not detected as notable on the PEth test that was undertaken; iii. 3 May – 2 July 2024 : The mother consumed alcohol at a problematic level which was chronically excessive; iv. 2 July – 26 July 2024 : It is accepted that the mother either didn’t drink alcohol or used alcohol to such a low level that it was not detected as notable on the PEth test that was undertaken; v. 26 July – 6 November 2024 : The mother consumed alcohol on a frequent basis and at a borderline excessive rate; vi. 6 November to 29 November 2024 : It is again accepted that the mother either didn’t drink alcohol or used alcohol to such a low level that it was not detected as notable on the PEth test that was undertaken on 4 December 2024; vii. 29 November 2024 : It is accepted that the mother has abstained from alcohol.[15]The local authority made it clear (and I entirely accept why) that the dates stated above are very approximate given the variabilities in hair growth rate but are broadly what the mother used within those specific date ranges. Some of the dates are fixed given that this is when PEth testing was undertaken. Crucially the local authority seeks to say that there were periods of time shortly before and during these proceedings where the mother has not only consumed alcohol but has consumed to excess.[16]The mother by contrast seeks to argue that whilst she was using alcohol prior to 7 April 2024 she has ceased using since this date and categorically maintains that she has not used since that date.[17]I am thus asked to consider whether the mother has used alcohol chronically excessively in advance of April 2024 and then whether she has used alcohol at all approximately in the months of May, June, August, September and October 2024.

Law

[18]The burden of proof rests upon the person making the allegation. The standard of proof is the civil standard, that is the balance of probabilities. It is a matter of establishing on the evidence what is more likely than not. It is important not to reverse the burden of proof. It is not for the party against whom an allegation is made to prove that a thing did not happen as asserted by the other. If a fact is to be proved the law operates a ‘binary system’ which means it is either true or it is not.[19]The court must decide those disputed issues of fact by applying the civil standard of proof. Thus, a disputed allegation only becomes a proven fact if it is more probable than not that the disputed events occurred. In Re B [2008] UKHL 35, Lord Hoffman said at paragraph 13 of the Judgment ;“ I think that the time has come to say, once and for all, that there is only one civil standard of proof and that is proof that the facts in issue more probably occurred than not”. That is, of course, a different standard of proof to that applied in criminal proceedings.[20]Findings of fact must be based on evidence (including inferences that can be properly drawn from the evidence) and not on suspicion or speculation. The court needs to consider all of the evidence before reaching a conclusion on a disputed issue. The court can have regard to the relevance of each piece of evidence when coming to a conclusion as to whether the party with the burden of proof has satisfied the court that the burden has been met.[21]There have been three specific High Court and Court of Appeal cases in respect of drug and alcohol testing. These are Mr Justice Hayden in London Borough of Islington v M & another [2017] EWHC 364, Mr Justice Jackson (as he then was) in Re H (A child: Hair Strand Testing) [2017] EWFC 64 and Mr Justice Cobb and Lord Justice Jackson in Re D [2024] EWWC Civ 498.[22]Hayden J said in the Islington case (as was emphasised in the latter two cases that) hair strand test drug results cannot be viewed in isolation, separately from the wider environmental factors when he said:
"It is particularly important to emphasise that each of the three experts in this case confirmed that hair strand testing should never be regarded as determinative or conclusive. They agree, as do I, that expert evidence must be placed within the context of the broader picture, which includes e.g. social work evidence; medical reports; the evaluation of the donor's reliability in her account etc. These are all ultimately matters for the Judge to evaluate."
[23]In Re H, Jackson J, echoed this exact point saying: In my view, the variability of findings from hair strand testing does not call into question the underlying science, but underlines the need to treat numerical data with proper caution. The extraction of chemicals from a solid matrix such as human hair is inevitably accompanied by margins of variability. No doubt our understanding will increase with developments in science but, as matters stand, the evidence in this case satisfies me that these testing organisations approach their task conscientiously. Also, as previous decisions remind us, a test result is only part of the evidence.[24]Also in Re H, Jackson J, set out twelve propositions that were agreed between the expert witnesses from who he had heard from. Notably he includes the following at paragraph 28 of that judgment: i. Normal hair growth comprises a cycle of three stages: active growing (anagen), transition (catagen) and resting (telogen). In the telogen stage can remain on the scalp for 3-4 (or even 5 or 6) months before being shed. Approximately 15% of hair is not actively growing; this percentage can decrease during pregnancy. ii. Human head hair grows at a relatively constant rate, ranging as between individuals from 0.6 cm (or, in extreme cases, as low as 0.5 cm) to 1.4 cm (or, in extreme cases, up to 2.2 cm) per month. If the donor has a growth rate significantly quicker or slower than this, there is scope both for inaccuracy in the approximate dates attributed to each 1 cm sample and for confusion if overlaying supposedly corresponding samples harvested significant periods apart. iii. The hair follicle is located approximately 3-5 mm beneath the surface of the skin; hence it takes approximately 5-7 days the growing hair to appear above the scalp and can take approximately 2-3 weeks to have grown sufficiently to be included in a cut hair sample. iv. After a drug enters the human body, it is metabolised into its derivative metabolites. The parent drug and the metabolites are present in the bloodstream, in sebaceous secretions and in sweat. These are thought to be three mechanisms whereby drugs and their metabolites are incorporated into human scalp. v. The fact that a portion of the hair is in a telogen stage means that even after achieving abstinence, a donor’s hair may continue to test positive for drugs and/or their metabolites for a 3-6 month period thereafter.[25]Finally, in Re H, Jackson J says the following: The burden of proof is on the local authority, which must prove its allegations on the balance of probabilities. As Ms Markham QC and Miss Tompkins rightly say, the presence of an ostensibly positive hair strand test does not reverse the burden of proof.

Evidential basis – Wider canvas

[26]I have set the law out above in detail as it is particularly relevant to this factual dispute. It is relevant because save for the hair strand test results (which I will consider below) there is no evidence of the mother consuming alcohol in the months after April 2024. I specifically checked this with Ms Conroy at both the outset of the hearing and in closing submissions.[27]Notably, the mother has not been seen by the local authority at any time during this period under the influence nor has there been any ‘smell of alcohol’ on or near her as there might be in other cases. The social worker (nor anyone else) has not seen any empty bottles of alcohol at the mother’s address and there is not even any suspicion (save for what is raised by the results of the hair strand tests) that the mother has consumed any alcohol. Further to this there have been no police or any other independent reports of alcohol misuse during this time period. The mother has consistently engaged in contact twice per week during these proceedings and has engaged with a parenting assessment.[28]The mother has engaged with Nottingham Recovery Network, an alcohol agency, since November 2023. Some of her engagement has been sporadic with a number of missed appointments. Indeed, in August 2024 she was at risk of being discharged from their service if she didn’t begin to engage. The mother has been regularly tested by them for alcohol misuse and has never produced a positive breathalyser test result. There have been however several missed or cancelled appointments which it is said could have been because she had been drinking and didn’t wish to be tested. A summary of the mother’s engagement with Nottingham Recovery Network is as follows: 30/11/23 Attended 15/12/23 Missed 03/01/24 Cancelled 10/01/24 Attended 24/01/24 Cancelled 29/01/24 Missed 07/02/24 Missed 19/02/24 Cancelled 01/03/24 Cancelled 13/03/24 Attended 27/03/24 Missed 17/04/24 Attended 30/04/24 Missed 10/05/24 Attended 22/05/24 Attended 12/06/24 Missed 20/06/24 Missed 01/07/24 Cancelled 05/07/24 Attended 25/07/24 Missed 13/08/24 Attended 10/09/24 Attended 29/10/24 Attended 12/11/24 Attended 15/11/24 Missed 28/11/24 Attended[29]There has been further engagement since the end of November 2024, but it is not particularly relevant for this judgment as all accept that she has been abstinent since this time. By my calculation in this period there have been 12 attended appointments, 9 missed appointments and 5 cancelled appointments out of a total of 26 possible appointments. Mother has therefore attended slightly less than half of the appointments.[30]However, in the relevant months, the mother attended twice in May, missed two appointments in June, attended one appointment in August, attended one appointment in September and attended one appointment in October. Her attendance rate during these crucial months appears to be better with her attending five out of the seven available appointments. As was highlighted (and I accept) there are large gaps in the breathalyser testing for the mother during these months, with only a snapshot covered by this form of testing.[31]The only other evidence of note relates to the history of the mother. The previous proceedings from June 2021 to January 2022 were entirely due to the mother’s use of alcohol. The final threshold from that set of proceedings notes that the mother consumed chronic excessive levels of alcohol from December 2022 until June 2021. The mother’s alcohol use placed her daughter at a risk of harm as she was again found in the early hours of the morning intoxicated whilst caring for her daughter.[32]Following the conclusion of the supervision order the mother also accepts having been under the influence of alcohol on the night of 10 October 2023 when her daughter was returned to her care. The police attended on this night and her daughter went to stay with her maternal aunt for a few days. There were other incidents involving the police in this time, however none have been sought to be proven by the local authority and thus I cannot consider them as part of the available evidence.

Evidential basis – Scientific testing

[33]It is against that lack of any other primary evidence that I must consider the case. The court has ordered three sets of alcohol tests of the mother within these proceedings. All the tests have been undertaken by the testing company Forensic Testing Service (“FTS”) who are duly authorised to undertake this type of test for the purpose of these proceedings. The testing undertaken can be summarised as follows: Date of Report Date of sample Date court ordered Tests undertaken 14 May 2024 3 May 2024 19 April 2024 EtG, EP, PEth 5 August 2024 26 July 2024 19 April 2024 EtG, EP, CDT, PEth 17 December 2024 4 December 2024 26 November 2024 EtG, EP, PEth[34]There is a degree of similarity between the reports produced by FTS in that all have detailed appendixes which contain ‘important information regarding blood tests for markers of alcohol use and should be used when interpreting the results in the report’ or contain ‘important information regarding tests for markers of alcohol use on hair samples and should be used as a point of reference when considering the interpretation of the results in this report.’ I am also told that ‘generally the interpretation of results is based on making a differentiation between ‘normal’ drinking and excessive drinking.’[35]The standard appendix also tells me that ‘A conclusion is made on the basis of the balance of probabilities as to whether an individual is drinking excessively or not. It is also sometimes possible to differentiate predominantly abstinence or occasional drinking from regular drinkers over extended periods, although this requires the addition of urine testing to the hair analysis.’[36]EtG is an abbreviation of Ethyl Glucuronide which the reports say: is a specific alcohol marker tested in hair to assess levels of alcohol consumption. EtG enters the hair via both the blood and the sweat. EtG derived from the blood supply and captured in the hairs structural proteins is likely to be more stable than the EtG that adheres to the hair surface, derived from the sweat. Because the proportion may vary so the stability of the EtG in the hair can also vary[37]The reports go on to say the following which is of relevance about EtG: i. Because of the issues described above, it is not advisable to rely on a single EtG test in isolation, and if the hair has been exposed to treatments then it is advisable to also test a body hair sample, ideally from the arm, chest or back. ii. The reliability of the interpretation of the EtG test in hair to assess alcohol use, may be reduced when the hair sample is significantly less than or greater than 3cm, since the data available on EtG hair testing of shorter and longer lengths of hair is more limited. Shorter samples are more likely to overstate the levels of EtG relative to the amount of alcohol consumed and longer samples may understate the amount of alcohol consumed. iii. A ‘Positive’ test for EtG in a 3cm proximal hair section is indicated by the presence of EtG in hair above 30pg/mg, strongly suggesting there has been excessive alcohol use for the majority of the approximate 3 months prior to collection of the sample.[38]With respect of CDT the reports say that this is a more specific blood test in assessing alcohol use and provides fewer sources of false positives. Alcohol consumption is the most common reason for increases in CDT levels and takes 2 to 3 weeks of abstinence for levels to return to normal. Normal levels are between 0 and 2%.[39]With respect of PEth this is a test via blood for the substance of Phosphatidylethanol (‘PEth’). The reports say that PEth testing is more sensitive and specific than measuring the levels of either CDT or LFTs alone. PEth is a direct biomarker produced only when alcohol is present in the bloodstream and is particularly useful in assessing the level of alcohol consumption during the 3-to-4-week window prior to sample collection.[40]The results of the three tests can be summarised as follows: Report date EtG EP CDT PEth 14 May 2024 880pg/mg 0.57ng/mg 310ng/mL 5 August 2024 130pg/mg < 0.1ng/mg 1.10% <10ng/mL 17 December 2024 20pg/mg 0.12ng/mg <10ng/mL[41]Notably the levels of EtG in the first two tests are notably higher than the cut-off level used by the Society of Hair Testing. The FTS reports say the following about these results: i. May 2024 – ‘In our opinion these findings are more likely than not to represent [M] having consumed alcohol excessively for the majority of the period around February to early May 2024. In our experience these findings are likely to represent [M] having consumed an average of > 100 units each week for the majority of the period; ii. August 2024 – ‘In our opinion these findings are more likely than not to represent [M] having consumed alcohol excessively (an average of >55 units per week) during the majority of the period from around May to late July 2024; iii. December 2024 – ‘In our opinion these findings are more likely than not to represent [M] having consumed alcohol on a regular and borderline-excessive basis (an average of around 40 to 60 units per week) during the majority of the period from around late July to early/mid-November 2024.[42]However, the PEth tests undertaken on the various dates appear to caveat those general findings as they can be more specific about use within the 3-4 week period immediately prior to the samples being taken on 3 May, 26 July and 4 December 2024. The reports for these say the following: i. May 2024 – ‘Furthermore, whilst these findings could be consistent with a recent period of abstinence prior to sample collection, in our opinion, it is unlikely to have been for the entirety of the 26-day period prior to sample collection, as declared; ii. August 2024 – ‘These findings are more likely than not to represent an average of no more than low level alcohol consumption during the majority of the recent period … these findings could also be consistent with abstinence from the consumption of alcohol’ iii. December 2024 – ‘These results could be consistent with abstinence from alcohol use during the 3-4 weeks immediately prior to sampling’[43]As I have noted above, the local authority accepts the PEth testing creates periods of time where it cannot establish on the balance of probabilities that the mother consumed alcohol either to a chronic excessive level or indeed at all. Thus, the PEth testing has been able to remove some of the time during which the local authority says that she has used alcohol, in contradiction to her evidence.[44]There was challenge by the testing by the mother and her legal team in advance of this hearing. Questions were posed of FTS on 19 September 2024 and 31 January 2025. The responses to questions noted the following: i. That the mother’s EtG levels in the first test are some of the highest observed in the FTS database and the second level is in the upper 11% of the FTS database of over 10,000 scalp hair samples tested for EtG; ii. They retain their view is that the findings are unlikely to be consistent with the declaration that the mother hadn’t consumed alcohol during the periods of the second and third tests; iii. The PEth level in the second test is below the lowest level of quantification; iv. That it is very unlikely that the mother has been abstinent from the consumption of alcohol since April 2024.[45]I also heard evidence from Mr M who is a Senior Reporting Scientist at FTS. He was cross examined by the mother’s counsel, Ms Bloomfield and also asked questions by myself. He told me that he had a master’s degree in chemistry and had been reporting on these types of reports for the past five years. Whilst he may not have signed off the reports (all are signed off by a PH, Technical Director) he did write the report dated 17 December 2024. I can summarise his evidence as follows: i. He retained the opinions broadly that were set out within the reports; ii. It would be possible to also test the nail samples that had been taken, however this hasn’t been requested and thus hadn’t been done; iii. The hair samples could be segmented further and tested, however EtG is not routinely segmented less than into 3-month segments. This is because there is a limited amount of data for segments less than this and the results would need to be interpreted with caution; iv. There are a number of variables that can influence EtG to get the level to vary, however these generally reduce the levels rather than raise them; v. That it was beyond his knowledge to comment upon how the characteristics of an individual might affect the levels of EtG in someone’s body, albeit he accepted that things such as weight, sex and ethnicity could influence the incorporation of alcohol into the hair. He also accepted that levels of blood flow to the scalp may affect the incorporation, but again this was beyond his expertise; vi. The questionnaire produced does feed into the reporting that is undertaken, however I was left unclear as to exactly how; vii. That FTS does not use cut off levels as suggested by the Society of Hair Testing and uses a figure of 1.2cm average growth per month rather than 1.0cm. This was due to differences of opinion between this testing agency and others about the correct way of undertaking testing; viii. EtG is a direct metabolite from the ingestion of alcohol, it can only be created by the ingestion of alcohol or the hair coming externally into contact with something that contains EtG. When asked what these might be it was limited to urine or some types of red wine; ix. There were dramatic reductions in the mother’s EtG levels at each test (86% reduction between each test) but in his view this was not explained by the telogen phase of hair; x. He was not aware of research about studies regarding the differing growth rates of hair and different lengths of the telogen phase of hair between ‘African hair’ and that from white Caucasian hair. He retained that the mother’s hair appeared to grow at an average rate, albeit the amount of hair in the Telogen phase was unknown; xi. He retained that the amount of hair in a telogen hair, in a site that had already been tested from, is likely to be low. EtG would collect around the proximal end (by the scalp) of the hair which could mean that it remained present for longer, however this would regularly be washed away when the hair is washed. EtG is particularly water soluble. xii. The levels of PEth on each of the tests ‘does not contradict abstinence in the 3-4 week period prior to the blood sample being taken.’[46]Finally with respect of scientific testing that has been undertaken in this case, it is crucial to note that there has been SCRAM bracelet testing on the mother for some time. The mother first put on a SCRAM bracelet on 29 November 2024 and wore it for a period of approximately 60 days. It is accepted by all that this shows that the mother was abstinent from alcohol during this entire period and there was no evidence of tampering with the device. It is therefore an accepted factual position that the mother has remained abstinent since this date.

Mother’s evidence

[47]The mother gave evidence on the morning of the second day. She retained throughout the cross examination that she had not drunk a drop of alcohol since 7 April 2024 when her daughter was removed from her care. She specifically said that she would have been ‘stupid’ to have drunk during this time as she knew she was going to be tested further, and this would have undermined her case.[48]She accepted that her daughter had been removed from her care historically because of her alcohol misuse and thus this was the second occasion where her alcohol misuse had led to her removal. Her evidence was that she had been entirely sober during the previous supervision order period (January 2022 – January 2023) but had begun drinking socially again in April 2023. She noted that she’d told the guardian in the previous proceedings that she was likely (given her age) to go out drinking again socially when she had her daughter back in her care, but knew now that she had to control her drinking.[49]When asked why she had resumed drinking she described it as her ‘poor judgment’. She told me that in April 2023 her life had been ok and that mentally she was in the correct place. She had not felt that drinking socially would cause a problem, albeit she accepted that it had clearly become a problem by April 2024.[50]She was asked a number of questions about how her drinking had escalated and her evidence was hazy in relation to this (notably more than it was about her more recent abstinence). She told me that she’d generally gone out twice per month with her female friends and had consumed large amounts of cocktails, spirits as shots, and spirits with mixers during these nights out. She latterly accepted that she’d then occasionally drunk white wine in her house on her own in the evening. She reported not wanting to drink excessively regularly as she got very bad hangovers and bad acid reflux because of drinking.[51]She accepted having drunk on 10 October 2023. On this occasion the police had been called by a family member due to concerns about the messages the mother was sending to people. The mother accepted having been drinking that evening (notably a Tuesday night) and that she’d gone out with a friend. However, she denied being intoxicated when the police attended or having been unable to care for her daughter.[52]At points her evidence was particularly emotional. She recalled a close friend of hers dying on 27 February 2024 after he had been ‘stabbed in the head’. From the emotional reaction she had in evidence (over twelve months later) it is clear that this had a particular impact on her emotionally. She described other mental health difficulties during this time largely relating to an inability to work or study due to having lost her passport. It appeared to me that she’d also been at times struggling to care for Anne on her own, probably not the general day to day care, but sometimes the ongoing regularity of the need to provide constant care to a young child as a single parent.[53]The mother latterly accepted probably going out and drinking more in the weeks prior to her daughter’s removal. She recalled going out for a long weekend of drinking for her friend’s wake and there being other times when she drank white wine at home. The mother also recalled having an event at her house on the weekend of 5-7 April 2024 when friends brought over the two bottles of vodka that were found in her flat. The mother continued to deny that she’d drunk these on the nights when they were there but had decided to drink some vodka and lemonade on the afternoon of 7 April 2024 before she’d been found unconscious by the police. Despite repeated questions about this I remained entirely unclear what had made someone who apparently didn’t ever drink vodka at home, decided to drink an entire half bottle of vodka on a Sunday afternoon.[54]There were points in the mother’s evidence where her evidence appeared focused on herself rather than having any apparent insight as to how her actions (which she accepted were ‘very very bad’) had impacted upon her daughter.[55]She described the events of 7 April 2024 as a wakeup call for her and she knew that she needed to get sober to be able to have her daughter returned to her care. She disputed the testing or having ever consumed over 100 units of alcohol per week. She also denied seeking to ‘trick the testing’ by stopping using alcohol in the few weeks prior to any tests that she knew she was having. This was particularly in respect of the August 2023 test, where the local authority postulated that this is why the PEth levels were lower. The mother suggested that the local authority were ‘giving her too much credit’ for either her intelligence or her intention to falsify or deceive people.[56]The mother accepted engagement with Nottingham Recovery had been far from perfect. She disputed that she’d cancelled all of the appointments, suggesting that some were cancelled by others. She accepted that she’d known that she was going to be likely breathalysed on those attendances but denied having not attended because she knew she was going to test positively.[57]Overall the mother came across at times as a compelling witness when discussing her recent abstinence and reasons for this, but also as an unconvincing witness when challenged about her historic drinking prior to April 2024. She was relatively reluctant to accept episodes of drinking prior to April 2024 without any specific detail, even when I re-iterated that accepting use at that time would not likely harm her case more generally.

Analysis – Generally

[58]This has not been an easy case to determine. The local authority and mother both have good arguments in support of their case but also significant weaknesses. I sought to engage with the advocates during their closing submissions about these so that I could seek to understand the arguments for and against their positions.[59]My starting position must be that the burden of proof rests entirely upon the local authority. It is particularly crucial for me not to reverse that burden of proof and specifically not to assume that just because there is hairstrand testing that suggests ongoing use that somehow the mother then needs to disprove this testing.[60]That said the evidence in support of the findings sought comes almost entirely from the EtG levels recorded in the three alcohol tests undertaken on the mother in 2024. If it wasn’t for those EtG levels the local authority quite clearly would not be able to prove its case about periods of ongoing alcohol misuse.[61]I intend to set out my analysis of the alcohol use both prior to and after the removal of Anne from the mother’s care.

Analysis – Alcohol use prior to April 2024

[62]For both periods of time the local authority, rightly, can rely upon the mother’s history of alcohol misuse and notably the mother’s history of chronic alcohol misuse in advance of the previous set of proceedings. The mother’s history of consuming chronic excessive levels of alcohol, whilst being the primary carer for a child, increases the likelihood that she both did so again in advance of April 2024 and also continued to drink during the course of these proceedings. The events of April 2024 were significant. It is an accepted fact in this case that the mother: ‘was found to be incapacitated through alcohol use whilst Anne was in her care. When police attended [M] was unconscious and could not be roused. Anne was awake and jumping on the bed next to her mother with a full nappy. The home conditions were poor with dirty nappies around the home causing a bad smell. There was little food in the home and Anne was hungry.[63]It is difficult to understand how the mother got into this situation except through a deterioration in her situation and an increased reliance on alcohol. The mother’s own evidence demonstrated that she was clearly struggling at this time with: i. Her mental health more generally. ii. The trauma of her close friend being stabbed and dying in February 2024. iii. Her inability to work or to study as a result of her having lost her passport and struggling to obtain another one. iv. Her limited income as a result of her not being able to work. v. Some difficult family relationships which had resulted in police call outs regarding her care of her daughter. vi. The daily grind of caring for her daughter (who wasn’t at school or in nursery) as a single carer. vii. Any other historic trauma that she may have as identified by Dr Pool in his report.[64]It is understandable in a situation such as this, with the history that she had around alcohol misuse, why the mother could have returned to consuming alcohol to excess to simply escape the situation that she was in. I don’t seek to suggest that the mother didn’t care for her daughter or didn’t want the best for her, however it is understandable how the daily care of her daughter, with her history and the significant events that occurred in early 2024 could have led to a return to alcohol consumption.[65]This all adds up to a risk for this mother of a return to alcohol consumption in the early part of 2024. Indeed, the guardian back in 2021 notes that there was a potential risk of relapse in this case. She said within her final recommendations dated 10 December 2021 that:
‘I am respectfully uncertain given the history whether it is realistic that [M] could ever drink recreationally, without this carrying a significant risk of her falling back into problematic alcohol use. I agree that ideally abstinence needs to be worked towards’
[66]There was a clear risk that existed back in 2022 of a relapse, which was no doubt only increased by the events of late 2023 and into 2024. The local authority can rightly rely upon this as being evidence that the mother could have used alcohol to a chronic excessive level at least in advance of 7 April 2024. The evidence that I heard clearly demonstrated that risk existed, and I was struck by the mother’s reaction to her friend’s death when she gave her evidence.[67]Further to this the mother’s evidence about her alcohol misuse prior to April 2024 was a lot hazier than it was regarding her use after this time. I felt at times that she was minimising her use or struggling to accept that she may have used greater levels of alcohol than she did. Her explanation as to why she suddenly started drinking vodka on a Sunday afternoon was unpersuasive, as was the vagaries of how often she would drink on an evening or go out at weekends. I entirely accept that the mother would be cautious in a case where an ongoing argument is that her daughter should be adopted, but her evidence about her drinking at this time was not persuasive.[68]The local authority is supported in their argument by the availability of the alcohol testing from May 2024. The test results from this time are said to relate to a period from realistically February until the end of April 2024. As above the local authority accepts that the mother probably was abstinent from alcohol from 7 April 2024 but continues to assert that the mother consumed alcohol to a chronic excessive level up until this date.[69]The EtG level recorded by the mother for this 3.6cm section of hair is 880pg/mg. This level is approximately 29 times the cut off that is suggested by the Society of Hair Testing and is one of the highest recorded levels in the FTS database. Whilst accepting that testing has its unknowns and shouldn’t be relied upon as gospel, this is a significant piece of evidence in support of the local authority’s finding. Whilst there may be other arguments about the later testing regarding hair in the telogen phase or speed of hair growth they really do not apply for this period of the timeline.[70]The argument against the finding would be that there were limited other incidents prior to 7 April 2024 when the mother was observed drinking. I accept that save for 10 October 2024 there were no police call outs, nor reports from family members. I also accept that there were no social care observations in this time under the influence. I also accept that she gave two negative breathalyser tests during this period with Nottingham Recovery and that the mother also has a history of being able to abstain from alcohol when she wishes to.[71]However, during this time there was also a widespread non-engagement by the mother with the social worker and also Nottingham Recovery Network. The mother wasn’t being seen by professionals very much and there is a huge amount of scope for alcohol consumption occurring and not being visible to anyone.[72]Having weighed up the available evidence in respect of the mother’s alcohol use prior to 7 April 2024, I am satisfied on the balance of probabilities that the mother did consume alcohol to a chronic excessive level in the months leading up to this date. I have come to this view in part because of the significant EtG level found by FTS, but because of the weight of the other evidence about the mother’s situation at this time. The mother herself accepts drinking during this period and also drinking at times frequently. I ultimately take the view that on the totality of the evidence available she was consuming a lot more alcohol at this time than she now admits to, or probably more realistically than she wants to remember or admit.

Analysis – Alcohol use after 7 April 2024

[73]The evidence about the mother’s alcohol use in this period is far less comprehensive. It is important to re-iterate when analysing this period that the local authority accepts the analysis of FTS in respect of the PEth testing and thus limits its finding of alcohol misuse to during the following months: i. No use in April 2024 after 7 April 2024; ii. Use in May and June 2024; iii. No use in July 2024; iv. Use in August, September and October 2024; v. No use from November 2024 to this date.[74]I should note at this stage that, had the local authority not come to this view itself then, I would have inevitably come to the view that use of alcohol could not be proven by the local authority in 3-4 weeks prior to each of the tests. The PEth results whilst not being able to specifically say that there has been abstinence, are compatible with there having been abstinence during this time. Given that the burden of proof is on the local authority, and there is no other evidence of alcohol misuse in these time periods, then inevitably the local authority would not be able to satisfy me that the mother had drunk during these periods.[75]Thus it is a notable factor when considering the mother’s use of alcohol in the 12 months since 7 April 2024 the local authority itself accepts that the mother appears to have been able to be abstinent for approximately 7 of those 12 months, but continues to say that the mother has consumed alcohol to a significant extent during the other 5 months, despite being under the scrutiny of the court and having had her daughter removed again from her care.[76]In support of the finding the local authority can continue to rely upon the history that I have set out above. This is clearly a mother who at times of difficulty would drink alcohol. Whilst she didn’t have the care of her daughter at this time, arguably the impact of her removal could have led to her consuming alcohol again as a way of addressing any mental health difficulties she no doubt was suffering. The fact that I have found that she had drunk to excess in advance of 7 April 2024 arguably increases the risk that she would have continued to do so after her daughter was removed from her care.[77]There are also some missed appointments by the mother that may indicate that she was seeking to avoid breathalyser testing being undertaken. However, these were not particularly frequent during these important five months, only resulting in two missed appointments in June.[78]Save for this history, the two missed appointments and the EtG levels from the second two tests the local authority has no evidence in support of alcohol misuse for these five months. There have been numerous attendances by the mother at contact, at assessment sessions and at work undertaken by alcohol services during these months. During these there have been no observations of alcohol consumption. The local authority has also had the opportunity to undertake visits to the mother’s property or unannounced testing but has either not done so or has not produced any evidence of alcohol misuse. I accept that the local authority cannot be present all of the time, but it has the burden of proof, and I can’t simply say that just because there isn’t use the mother ‘may’ have used. The mother cannot be expected to prove a negative.[79]Due to all of this and the mother’s repeated denials of use, there must be considerable (if not total) reliance on the EtG levels in support of these findings. I accept the comments of Jackson J, as set out above, that the variability of findings from hair strand testing doesn’t question the underlying science, however I must be treat the numeric data within the reports with proper caution. There is much that we don’t know about these tests and more might be known in time. I specifically remind myself that the test results are only part of the evidence, and it needs to be weighed with the other evidence.[80]That said, the opinions of the testing agency must hold significant weight. FTS (and Mr M) tell me that on the balance of probabilities the EtG levels show that the mother consumed alcohol during these time frames. The EtG levels found in the mother’s hair are not disputed or disputable. It is important to note that EtG can realistically only be found in the mother’s hair due to the breakdown of ethanol within her body. The EtG levels are present because of a consumption of alcohol by the mother at some point. The critical issue is when.[81]However, I am concerned about a number of matters when it comes to these particular testing results. Firstly, the drop off in EtG levels seen over the three tests are particularly notable. The reported level is 880, the second 130 and the third 20pg/mg. By my calculations this is a reduction of approximately 86% consistently between the first and second test and the second and third tests. These are dramatic reductions in the levels of EtG found within the mother’s hair between these tests and remarkably similar reductions in percentage terms between the tests. I sought to understand whether this could (as it is in other cases) be evidence that this could be the result of historic rather than recent use of the metabolite that may have been in the telogen stage but remains present in her body. However, I was not able to get a particularly clear answer to this issue from Mr M.[82]Secondly, I am concerned with the apparent link between the levels of EtG detected and what FTS suggests the level of use was in occurrence with these levels. In the case of Re H, Jackson J warned about reading back from the level of substance found to get to the ‘suspected use’ of that substance. He specifically says ‘You cannot read back from the result to the suspected use.’ I accept that this related to a test for cocaine, but given the consequences of physiology would appear to equally relate to alcohol use as they do to cocaine use, and the same inherent variables exist in the testing process I remain concerned about the direct links being applied between the levels recorded by FTS and attempts to quantify the level of use likely to have occurred. Again, I was not able to be satisfied of my query from this from Mr M’s evidence.[83]Thirdly those levels when analysed do not appear to make much mathematical sense. The levels and the ‘results’ attributed to them can be summarised as follows: Report date EtG FTS’ estimate of use 14 May 2024 880pg/mg >100 units of alcohol per week 5 August 2024 130pg/mg > 55 units of alcohol per week 17 December 2024 20pg/mg 40-60 units of alcohol per week[84]As above the levels of EtG detected reduce by approximately 86% on both occasions, yet the estimate of use of alcohol reduces from over 110, to over 55 to somewhere between 40-60 units. There is no apparent link between the estimates of use and the levels of EtG observed. Notably between the last two tests despite the level of EtG reducing by 85%, the level of estimated use appears to remain relatively similar.[85]Fourthly, in a similar but different point to my second issue, I remain relatively unclear as to why FTS seeks to undertake its own analysis of use rather than using the industry cut off level for chronic excessive use of 30pg/mg in a 3cm section of hair. Whilst I understood the explanation from Mr M about the difference between 1 and 1.2cm growth, the explanation as to why they do not use the industry cut off level remained unclear. I can appreciate that arbitrary cut off levels may not tell the whole story about a situation, however the guidelines are published and are based on research. Whilst use below the society’s cut off level may be relevant for the court to consider; it is notable that the final level was notably below the cut-off level prescribed by the society of Hair Testing.[86]Fifthly I note that the final sample was taken with a 5.1cm measure rather than a 3.6cm or even a 1 cm sample. I am unclear as to why this was (save for concern about the quality of the mother’s hair sample) and this may draw into down the relevance of the reading taken.[87]For all those reasons I treat the EtG sample results, and the consequent opinions of FTS, with a greater degree of caution than I might ordinarily. Noting that in any event I would not have taken them as definitive evidence of misuse by the mother given what I have set out above.[88]Further to my caution about the numerical data in this case, is the apparent pattern of drinking that the local authority submits I should accept has occurred in this case. It is crucial for me to consider the totality of the evidence in the case, which includes the totality of the available scientific testing. The totality of the scientific evidence accepts that there may have been at least three periods, despite the mother’s excessive drinking, where the mother abstained for periods of three to four weeks at a time. Three of these periods of abstinence all occur immediately before hairstrand and blood testing was undertaken by FTS. Indeed, all the blood tests undertaken on this mother by FTS can be read to show that she has been abstinent for a period of three to four weeks. It is only the hairstrand testing that is in contradiction to her position of abstinence.[89]It appears to me that this is relevant for a few reasons. First of all, the blood testing contradicts the hairstrand testing about the mother’s use of alcohol. I entirely accept that they both are testing over different periods and thus it is possible for the testing to contradict but both be reliable. However, it is a particularly notable feature of this case that for all of the blood tests, the experts accept that they can be read to show abstinence, whilst the hairstrand tests cannot be read to show abstinence.[90]Secondly, the pattern of use to create this on-off nature of test results would be bizarre. The local authority asserts that I should determine that it is more likely than not that this Mother consumed to excess in advance of April (as I have found), but then abstained for a month, then used excessively (50+ units per week) for two months, then abstained for a month, then used borderline excessively again (40-60 units per week) before abstaining thereafter. I accept that this is possible, however it appears to me to be a very peculiar sequence of use from a mother who has demonstrated not only recently, but historically, that when the spotlight is on her and she expects to be tested she can and will abstain from using alcohol.[91]It is particularly peculiar in a case where the mother has had her daughter removed from her care (again) due to alcohol misuse. She would no doubt have been acutely aware that she could not drink alcohol or risk not having her child returned to her care. Whilst I accept this doesn’t prevent someone from drinking, again given her history she had the capability to do so and the historic evidence that she had done so back in 2021.[92]Thirdly, the pattern becomes even more bizarre, because for it to be accurate the mother must always stop drinking alcohol sufficiently early to create very low PEth levels and low CDT levels approximately 3-4 weeks before each sample is taken. Whilst I accept that it is possible that someone could both know that this what they need to do, and might control their alcohol use to achieve that, it appears that this would be add to the unlikelihood of the pattern in the first place.[93]This is because it is very difficult for someone like the mother who is neither a toxicologist nor a lawyer (who regularly reads these reports) to know that this is what she must do, to create this argument at a final hearing. Whilst I accept that the mother could have read the first report with sufficient detail to know this, I didn’t hear any evidence that suggested she had done this or that she knew she had to do this.[94]Further to this the mother had very limited notice of when the actual tests were going to take place. Certainly, for the first and third tests the mother did not get 3-4 weeks of notice that the testing was going to be ordered. As per my table above the mother had 14 days’ notice between the first court order and the first sample and 8 days’ notice between the third court order and the third sample. She simply did not have notice that she needed to adjust her alcohol use to be able to ‘trick’ the testing, even if she’d wanted to or had the knowledge to do so.[95]Even for the second test, when she had arguably 3 months’ notice, it is highly unlikely that she got the specific date for the test that far in advance of the sample being taken. The mother told me that she’d not seen the court order (which I accept) and had only been told that she’d be giving a test in approximately 3 months by Recorder Aldred at the hearing.[96]Finally, it is relevant to me that the mother’s evidence regarding her use of alcohol since April 2024 was far more convincing than her evidence about her use prior to her daughter being removed. The mother has categorically throughout her statements denied ongoing use. She has similarly denied use in all encounters with social workers, with the guardian and with alcohol testing services. The mother was equally adamant with me that she had not been drinking alcohol and that the testing simply must be wrong. Whilst I accept that it is always possible for people to be dishonest on multiple occasions, including in the face of the court, the mother’s repeated and categoric denials, must weigh into the evidential picture.[97]Having weighed everything up I have reached the view on balance that I cannot find on the balance of probabilities that the mother has continued to use alcohol since April 2024. As I have noted in my analysis above there is evidence both in support of this finding and against this finding. The evidence in support is objectively persuasive in that it comes from the two FTS tests that have occurred since this date. The evidence in support is improved by the finding that I have made about the mother’s alcohol use prior to 7 April 2024. However, in this case the EtG levels are almost the only primary evidence in support of the finding and are contradicted by a weight of arguments against them.[98]I must treat the hairstrand testing with a degree of caution and I rightly remind myself that I should consider it as part of the entire evidential picture. In this case when I do this, I have reached the conclusion that the EtG levels detected in the mother’s hair cannot be sufficient on their own to find that the mother has continued to use alcohol.[99]In many cases the EtG levels, combined with the historic use by the mother, may be sufficient to make a finding of ongoing use. However, in this case given the paucity of other evidence in support of the finding and my concerns about the results of the hairstrand testing that I have detailed above push me towards the view that the finding cannot be made out on the evidence available. Of particular relevance in this case in my judgment are the three PEth results that show these periods of apparent abstinence from the mother in the immediate lead up to each test. The pattern of consumption that this would require the mother to have had to match the scientific results is relatively unbelievable in the context of any case, but particularly so in this case when the mother has demonstrated ongoing abstinence through SCRAM testing.[100]For all those reasons, whilst I do not deny the fact that the EtG results create a strong argument to make the finding, all of the other scientific testing and the lack of any other real evidence in support lead me to the conclusion that I cannot make the finding sought by the local authority and thus I do not. Conclusions[101]Thus, the limit of the factual findings that I make in this case is that the mother consumed alcohol to a chronically excessive level from approximately the beginning of February 2024 until 7 April 2024. I do not make a finding that the mother has continued to consume alcohol after her daughter was removed from her care in April 2024.[102]I thank all representatives for their efforts in this case and will await a copy of the case management order in due course, together with any requests to vary the directions settled on at the hearing. Recorder Williams 19 March 2025