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Re O and N; Re B – Uncertain Evidence and Risk-Taking in Child Protection Cases

24 Pages Posted: 29 Mar 2012  

Mary Hayes

Emeritus Professor of Law, University of Sheffield; Visiting Professor, University of Swansea

Date Written: March 29, 2012

Abstract

This commentary critically examines how the House of Lords, when faced with uncertain facts, has applied different standards of proof at the threshold and welfare stages of care proceedings. It proposes that the ‘real possibility’ test should be applied at all stages of the proceedings. This test strikes the correct balance between protecting children from future risk and interfering, perhaps wrongly, in their lives and in the lives of their parents. However, where there is uncertainty about whether a child has been harmed, or uncertainty about who caused the harm, great caution is needed before family ties are seriously disrupted or terminated. A care plan that protects the child from danger, and no more, may be all that is permitted by Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. Proportionality in the face of uncertainty requires that the door is left open to a child’s eventual re-integration with her family. This will normally, although not necessarily, be in the interests of the child.

Keywords: family law, child law, child protection, uncertain evidence, threshold, care proceedings, welfare stages

Suggested Citation

Hayes, Mary, Re O and N; Re B – Uncertain Evidence and Risk-Taking in Child Protection Cases (March 29, 2012). Child and Family Law Quarterly, Vol. 16, No. 1, pp. 63-86, 2004. Available at SSRN: https://ssrn.com/abstract=2030796

Mary Hayes (Contact Author)

Emeritus Professor of Law, University of Sheffield; Visiting Professor, University of Swansea ( email )

Crookesmoor Building, Conduit Road
Sheffield S10 1FL
United Kingdom

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