Risk, Harm, and the Post‑2021 Appellate Tightening of Decision‑Making

This article is the first in a short Rhetoric series examining how appellate courts have tightened the application of risk, proportionality, and necessity in public law children cases.

The analysis focuses on post‑2021 appellate guidance and the increasing insistence on evidence‑based reasoning when permanence is being considered.

Rhetoric Series: Risk, Permanence and Access to Justice in Public Law Children Cases – Part One

If This Case Were Decided Today: How Appellate Courts Have Reframed “Risk” in Child Protection

Family court decisions are never made in a vacuum. They are shaped by the law as it stands at the time, the climate surrounding child protection, and the tools judges are given to reason about uncertainty.

This article is the first in a short Rhetoric series examining how appellate courts have, since 2021, tightened the application of risk, proportionality, and necessity in public law children cases. The focus is not on whether past decisions were lawful, but on how appellate guidance has since clarified the limits of risk-based reasoning, particularly where permanence and adoption are concerned.

This blog does not argue that earlier decisions were wrong or unlawful. Instead, it asks a quieter — but more important — question:

How might this case have been reasoned if it were decided under appellate guidance that has since clarified the limits of “risk-based” decision-making?

Important Clarification: What Changed — and What Did Not

Foundational authorities such as Re B and Re B-S pre-date 2021. The argument here is not that the law suddenly changed.

Rather, since 2021, appellate courts have re-interpreted, tightened, and more rigorously enforced those principles. The shift is one of application, not statute.

What has changed is the tolerance for loosely evidenced prediction, professional anxiety, and permanence-by-default reasoning.

The Case in Context

The case concerned a young child removed following two highly charged police incidents (January 2018 and July 2020), disputed injury evidence, and concerns about parental reactions under stress.

The court did not make findings of deliberate harm. Instead, the decision proceeded on the basis of:

• future risk

• emotional dysregulation

• professional unease about managing uncertainty

At the time (2020–2021), this approach was common and lawful.

Since then, appellate courts have become far more explicit about what risk can — and cannot — justify, particularly when adoption is contemplated.

From Risk to Evidence: The Post-2021 Appellate Shift

Across multiple judgments since 2021, appellate courts have repeatedly reinforced a core principle:

Risk is not a substitute for proof.

This does not mean courts must wait for children to be harmed. But it does mean that risk must be:

• Real

• Current

• Evidenced

• Proportionately addressed

Earlier cases allowed broader predictive reasoning. Later rulings tightened the discipline.

1. “Nothing Else Will Do” — Now Actively Enforced

While Re B and Re B-S have long been cited, post-2021 appellate decisions have sharpened their practical application.

The clarification is stark:

Adoption is not justified because parents are risky —
it is justified only where no other option can safely meet the child’s needs.

In this case:

• supervision was discussed but not fully trialled

• therapeutic intervention was identified but not meaningfully tested

• risk was treated as static rather than potentially manageable

Under modern appellate scrutiny, a court would likely be pressed to explain:

• why support could not manage the risk

• why time-limited orders were insufficient

• why uncertainty itself justified permanence

Those questions are now routinely asked.

2. Predictive Risk Must Be “Sufficiently Established”

Post-2021 authorities stress that courts must distinguish clearly between possibility and probability.

They caution that:

• professional concern cannot replace evidence

• anxiety is not proof

• prediction must be anchored to facts

In this case:

• injury causation remained unresolved

• emotional responses occurred in acute crisis contexts

• there was no evidence of ongoing daily harm

A modern appellate lens would likely ask:

What evidence shows that these risks would persist despite intervention?

That question was not squarely answered — because, at the time, it did not have to be.

3. Professional Confidence Is Not Parenting Capacity

A notable appellate shift concerns reliance on professional confidence.

Recent judgments stress that:

• difficulty with authority ≠ inability to parent

• system breakdown ≠ parental incapacity

• conflict with police ≠ safeguarding failure

Here, police encounters and parental distress became proxies for parenting risk.

Post-2021 appellate reasoning would require courts to ask:

Is this a child-protection concern — or a system-relationship problem?

That distinction matters deeply.

4. Emotional Dysregulation Is No Longer Treated as Static Risk

Later appellate guidance increasingly recognises that:

• trauma responses are contextual

• emotional dysregulation can be situational

• risk is not immutable unless shown to be resistant to support

In this case:

• dysregulation occurred during adversarial encounters

• there was no evidence of refusal to engage with help

• therapeutic remediation was identified but overtaken by time pressures

Modern appellate reasoning would likely require:

• evidence that dysregulation could not be treated, or

• proof that intervention had been tried and failed

Absent that, permanence becomes harder to justify.

5. The Warning Against Predictive Certainty

Perhaps the most significant post-2021 development is appellate concern about what judges now openly describe as:

“Over-confident prediction in the absence of past harm.”

This case relied heavily on:

• what might happen

• what professionals feared

• what could not be ruled out

Later rulings repeatedly caution that:

• fear is not evidence

• permanence should not be used to resolve professional anxiety

• prediction must be restrained

If This Case Were Decided Today

If decided today, the court would likely still be concerned. That should not be minimised.

But it would probably be required to:

• make clearer findings — or explicitly decline them

• separate system conflict from parenting capacity

• test support options more rigorously

• justify why risk could not be managed

• explain why adoption — specifically — was necessary

That does not guarantee a different outcome.

It does mean the reasoning would need to be tighter, slower, and more explicit.

Why This Reflection Matters

This blog is not about blame.

It is about understanding how:

• law evolves

• standards sharpen

• decisions once seen as inevitable are later revealed as finely balanced

For adopters, it matters because:

• adoption decisions often rest on risk, not certainty

• children/adoptees carry these narratives into adulthood

• understanding context supports openness, not threat

For professionals, it matters because:

• anxiety is human, but courts now demand discipline

• manageability must not be confused with impossibility

And for families, it matters because:

• justice is not static

• outcomes are shaped by time as much as truth

Final Thought

This case was decided within the law as it stood.

But law does not stand still.

And when we look back — carefully, honestly, and without re-litigation — we can sometimes see not wrongdoing, but fragility.

That is where learning lives.

Submitted by:
H. Currie, LLB (Hons)
January 2026