Discredited hair-testing program harmed vulnerable families across Ontario, report says

A commission looking into child protection cases involving the Motherisk test lab says bad science removed vulnerable children from more than 50 families based on now-discredited hair analysis, but few parents have a chance of finding a satisfactory legal remedy.

The Motherisk Commission was set up by the Ontario government to analyze legal cases dating from 1990 to 2015. The cases involved flawed hair-strand drug and alcohol tests from a lab run by the Hospital for Sick Children in Toronto.

On Monday, the two-year review into more than 1,200 child welfare cases involving hair tests concluded that in 56 cases the test results had a substantial impact, such as being used to pull children from their parents' care.

Provincial court judge Judith Beaman led the independent commission, which said parents were often powerless in the face of tests imposed by children's aids societies.

In seven of the 56 cases, families achieved a legal remedy. In four of those seven, children have been returned home.

One of the four whose children were returned is a woman that the Motherisk test suggested was having at least 18 drinks a day. CBC News can't use her real name due to a publication ban.

The mother says she took the test to try to disprove claims made by her ex-husband, even though she had doubts about the testing process itself, which was based on hair sampling.

With the result of the hair testing, her child was taken away. 

"'I never in my life wanted to crawl out of my own body. That is how I felt. I couldn't sleep or eat. I had no idea where my daughter was."

 After fighting for 6-½ years, she was able to get her child back.

"The whole system needs to be uprooted and reformed and that's what I am hoping for," she said.

The rest of the cases are ongoing. The commission gave those families referrals to lawyers and paid for mediation.

Undermines public confidence

"The discovery that unreliable test results were used as part of expert evidence in child protection proceedings for so many years undermines the public's confidence in the fairness of our justice system, particularly with respect to how it treats vulnerable people," Beaman said in the report.

"The testing was imposed on people who were among the poorest and most vulnerable members of our society, with scant regard for due process or their rights to privacy and bodily integrity. Many people experienced the testing, particularly when it was done repeatedly, as intrusive and stigmatizing."

The test results were often admitted as evidence in court without the usual checks and balances, Beaman said. 

Of the 56 cases with substantial impact, seven, or 12.5 per cent, involved Indigenous families, which make up 2.8 per cent of the province's population. African Canadian families are also over-represented in Ontario's child protection system, the report said. But the commission has not been able to identify the number of African Canadian families or other minority groups among the affected families.

One of the parents was Tammy Whiteman. That Ontario woman's fight to get her daughters back was initially unsuccessful in part because of what has now been determined to be faulty hair-strand testing done by Motherisk, which appeared to show she was a chronic alcohol abuser.

In the 56 cases where the tests had a significant impact on the outcome, "families were broken apart and relationships among children, siblings, parents, and extended families and communities were damaged or lost," Beaman said.

More supports needed for families

Their legal options depended on the stage of the case, the commissioner said.  

"Even where an appeal or challenge is possible, the court may decide that it is not in the child's best interest to alter their living or access arrangements. This means that even where the discredited Motherisk testing substantially affected the outcome of cases, the families will likely have difficulty bringing about a change in the children's situation."

The Motherisk saga has shown that the child protection and court systems must be more careful in how they use expert evidence, and that more supports are needed for families and communities, she said.

The commissioner issued 32 recommendations. They include:

• Changes to legislation and rules on the use of expert evidence.
• Strengthening parent representation during child protection proceedings.
• More education for judges.
• The creation of family inclusive substance abuse treatment programs.
• Measures to address racism in the child welfare system.

She also recommended extending free counselling services to the affected families for three years on top of the two they have already been offered.

A statement from Ontario's minister of children and youth services and the attorney general said the government accepts the recommendations of the Motherisk Commission. 

The government said it will establish a task force of outside experts, as well as families, Indigenous peoples and the black community, to guide its next steps. It also asked the legal community to consider how it could implement the recommendations.

Asked about compensation, Attorney General Yasir Naqvi responded: "If that's one of the questions that we may want to pose to [the task force to] give us advice, that's probably one of the avenues we may look at."

The Ontario government said it will report publicly on its progress within one year.