Article Text

other Versions

PDF
Harm: as indeterminate as ‘best interests’, but useful for triage
  1. Charles Foster
  1. Correspondence to Dr Charles Foster, Green Templeton College, University of Oxford, Oxford OX2 6HG, UK; Charles.Foster{at}gtc.ox.ac.uk

Statistics from Altmetric.com

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 …

View Full Text

Request permissions

If you wish to reuse any or all of this article please use the link below which will take you to the Copyright Clearance Center’s RightsLink service. You will be able to get a quick price and instant permission to reuse the content in many different ways.

Linked Articles