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Fallacies | Internet Encyclopedia of Philosophy

A fallacy is a kind of error in reasoning

There are those who may regard that last sentence as controversial but undoubtedly it represents the present state of the law in determining the starting point. It follows inexorably from that, that society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the state to spare children all the consequences of defective parenting. In any event, it simply could not be done."

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"The family life for which article 8 requires respect is not a proprietary right vested in either parent or child: it is as much an interest of society as of individual family members, and its principal purpose, at least where there are children, must be the safety and welfare of the child. It needs to be remembered that the tabulated right is not to family life as such but to respect for it. The purpose, in my view, is to assure within proper limits the entitlement of individuals to the benefit of what is benign and positive in family life. It is not to allow other individuals, however closely related and well-intentioned, to create or perpetuate situations which jeopardise their welfare."

124. And there is also the important point recognised by Thorpe J in [1994] 1 WLR 290 at page 292, that "the further capacity is reduced, the lighter autonomy weighs." The converse is also true. The nearer to the borderline the particular adult, even if she falls on the wrong side of the line, the more weight must in principle be attached to her wishes and feelings, because the greater the distress, the humiliation and indeed it may even be the anger she is likely to feel the better she is able to appreciate that others are taking on her behalf decisions about matters which vitally affect her – matters, it may be, as here, of an intensely private and personal nature.


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MM responded positively to KM's tactile behaviour and positive comments. There was evidence of a significant emotional connection to him. There must be times when she feels cared for and cared about by him in ways she has never previously experienced. It is likely that she has seen the abusive aspect of their relationship as a price worth paying for these positive emotional feelings.
However, he also demonstrated an ability to pursue his own agenda, for example suggesting [the W unit] was not a good place for MM to be as this would prevent their relationship from continuing.

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156. Second, and for much the same reasons, the proposal until very recently that all contact should be supervised struck a wholly inappropriate and disproportionate balance. It was, if I may say so, a revealing example of the dangers of putting a vulnerable adult's supposed safety before her happiness. I accept that there are risks in unsupervised contact. Of course there are. But one has, as I have said, to evaluate these risks in a pragmatic, common sense and robust way. The risks which attach to unsupervised contact between MM and KM are, in my judgment, manageable and acceptable. They are, moreover, risks which in my judgment need to be run if MM's welfare in all its aspects is truly to be achieved and if there is not to be a disproportionate interference with her rights under Article 8.

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"You have also asked me to further comment on my conclusion that MM is unlikely to acquire capacity in the relevant areas. MM is 38 years of age. She is no longer in the developmental period and therefore her underlying level of ability will not increase. In time it may decrease. The available information indicates that MM's level of intellectual functioning is very significantly impaired. She would not be capable of living independently without significant assistance. In addition to her learning disability MM also suffers from a psychotic mental illness. This will have two main effects. Firstly during periods of exacerbation of that illness her intellectual functioning and ability to make decisions will be further impaired. Secondly over time patients with severe mental illness can experience an overall deterioration in intellectual functioning outside of periods of acute exacerbation of the illness. At the time that I assessed MM she was not acutely psychotic. It is likely therefore that at the time of the assessment her level of functioning and therefore decision making ability was at its best. It is for these reasons that I drew my conclusion that she was unlikely to acquire decision making capacity in the relevant areas in the future."