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Birchley,1 Wilkinson and Nair,2 and McDougall3, all in this issue, do not sufficiently acknowledge the nature of the ‘harm’ threshold as it is used in English law. Where it occurs, it is intended to be used as a triage test to determine whether or not the court should go on to undertake a more thorough, nuanced, holistic best interests determination. Triage tests are, by their nature, rough and quick. They embody rules of thumb to an extent unacceptable in substantive determinations. It is rather unfair to criticise a triage test for not having a degree of sophistication to which it does not and should not aspire.
The notion of the harm threshold is only applied by the court where a care or supervision order is being considered.4 In Re J (Children), one of the leading cases considering the issue, Lady Hale, giving the main judgement in the Supreme Court, observed that: “In a free society, it is a serious thing indeed for the state compulsorily to remove a child from his family of birth. Interference with the right to respect for family life, protected by article 8 of the European Convention on Human Rights, can only be justified by a pressing social need.”5 That, of course, is precisely the concern that underlies Diekema's advocacy of the harm threshold.6 Lady Hale went on:
‘How then is the law to protect the …