It has been more than two weeks since controversy erupted over Motherisk’s analysis of hair strand tests for criminal and child protection matters. It appears that the response of the Hospital for Sick Children is, at present, silence. The silence is almost deafening. It is a strange position to take, especially for a hospital and program that apparently prides itself in its scientific rigour and reputation with the public. The silence only feeds the uncertainty among members of the public, lawyers and judges. The big question that many of us are asking is: What are we going to do if the Children’s Aid Society asks for a hair test?
I, for one, will be extremely cautious in agreeing to a hair test for my clients, particularly by Motherisk. This latest salvo of war among the experts has raised deep uncertainty as to the reliability of the Motherisk testing procedure, the validity of their results, and their expertise in forensic hair analysis. As my colleague, David Miller, noted in a recent article reported by the Toronto Star, why should clients and lawyers settle for anything less than the gold standard? Children should not be taken away and families should not be interfered with on the basis of a test that is anything less than the best.
Given the onslaught of objections that may potentially arise in cases involving hair testing, I believe it is extremely important for Motherisk to release detailed information about their testing procedure and explain why they are qualified to do these tests for forensic purposes. Without such information, this issue will be litigated in court and challenges will be made to this evidence. The financial cost of this type of challenge is significant. An inquiry into Motherisk’s tests may require the hiring of an expert, cross-examination of the doctors at Motherisk, additional judicial resources and court time, more hours worked by lawyers on both sides. All of this will cost the public money as most child protection cases are funded by Legal Aid Ontario and that organization is, in turn, funded by us through the tax system. Given the financial repercussions, when will the Ontario Government step in and deal with this matter appropriately?
For the latest information, see my contribution to the following Toronto Star article: “Motherisk concerns a ‘wake-up’ call for family lawyers”