Mr Justice Ryder: The Risk Fallacy: A Tale of Two Thresholds

21 DEC 2007

The Honourable Mr Justice Ryder

Despite a number of attempts by the Court of Appeal and the House of Lords to interpret the child protection purpose of the Children Act 1989 in a way that is compatible with the human rights principles that informed its drafting, I am going to suggest that a formula for the determination of the threshold in s 31, the facts in issue and the component elements of welfare in s 1(3) has eluded their Lordships' House.

As we approach the introduction of a new and more coherent case management process that is designed to identify the key issues and help to narrow and resolve them within a timetable for the child, I believe it is both appropriate and necessary that we also re-examine our risk assessment and decision-making process. In particular, I seek to suggest that we need to have a measured and rational debate as to whether in the determination of a likelihood or risk of harm, it is always necessary for the court to make findings of fact to the civil standard of proof, that is on the balance of probabilities.

For the full article, see January [2008] Family Law journal.
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