Emeritus Professor of Law, University of Sheffield
For children at risk, in Re J (Children)  1 FLR 1373 the Supreme Court has made a judgment that concentrates on black letter judge-made ‘rules' relating to proven facts. The justices did not investigate the potential outcomes of their inflexible approach to the law. Their judgment virtually ignores the impact these rules will have on unharmed children living with possible perpetrators of significant harm to another child. They give rise to the real possibility that a child's Article 3 right ‘not to be subjected to torture or to inhuman or degrading treatment or punishment' may be put in jeopardy. By contrast, Lord Nicholls' guidance to courts in his rulings gives proper priority to ensuring safe outcomes for these vulnerable children.
The full version of this article appears in the August 2013 issue of Family Law.
See also Stephen Gilmore's article Re J (Care Proceedings: Past Possible Perpetrators in a NewFamily Unit)  UKSC 9: Bulwarks and logic - the blood whichruns through the veins of law - but how much will be spilled infuture? CFLQ 215