L.H. v P.J. (Approved)

Factual and Procedural Background

The Applicant seeks leave to apply for judicial review of an Order made by the Circuit Family Court on 4 July 2023, which arose on an appeal from the District Court. The order appointed a social worker to conduct a review assessment pursuant to section 32 of the Guardianship of Infants Act, 1964 (as amended) ("the 1964 Act"). The Applicant contends that the appointment was irrational, particularly because issues of parental alienation require a specialist assessor. The proceedings concern a protracted dispute between the parties, who are the parents of a 12-year-old child. The Applicant initiated the judicial review application on 2 October 2023 but did not proceed immediately due to an extant motion before the Circuit Family Court. The application was heard on notice to the Respondent, who is the other parent and was legally represented.

Legal Issues Presented

1. Whether the Circuit Family Court’s order appointing the social worker under section 32 of the 1964 Act was irrational, particularly in light of allegations of parental alienation.
2. Whether the Applicant has established sufficient grounds to obtain leave for judicial review of the Circuit Family Court’s order.
3. Whether the appointment of the existing assessor, as opposed to a specialist assessor, was lawful and appropriate under the relevant statutory provisions.

Arguments of the Parties

Applicant's Arguments

• The Circuit Family Court’s refusal to appoint a specialist assessor and re-appointment of the previous assessor was irrational.
• The order was contrary to section 32(1)(b) of the 1964 Act.
• The appointed assessor failed to demonstrate knowledge of parental alienation.
• The application is made in the best interests of the child and aims to achieve a greater good.

Respondent's Arguments

• The Applicant’s grounds do not disclose an arguable case in law sufficient to grant leave for judicial review.
• The Applicant is effectively attempting to use judicial review as a mechanism to appeal an unsatisfactory order.
• The requirements for leave to bring judicial review, as established in G v Director of Public Prosecutions [1994] 1 IR 374, have not been met.
• The Circuit Family Court properly considered the Applicant’s allegations and proposals before making its decision.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
McD v. L [2009] IESC 81	Expert reports (section 47 reports) are evidence for the court to consider but do not bind the court; the court is the ultimate decision-maker concerning the child's welfare.	The court held that the same principle applies to section 32 reports under the 1964 Act; the assessor’s report is part of the evidence, but the court must make its own determination.
G v Director of Public Prosecutions [1994] 1 IR 374	Sets out the necessary ingredients for obtaining leave to apply for judicial review, including sufficient interest, arguable grounds, promptness, and appropriateness of the remedy.	The court applied these criteria strictly and found the Applicant did not satisfy the requirements for leave.
CG v. BG [2019] IEHC 15	Specialist assessment for parental alienation requires a sufficient evidential basis; mere allegations are insufficient.	The court found the present case distinguishable and held that the Circuit Family Court’s decision not to appoint a specialist assessor absent sufficient evidence was appropriate.
AB v. CD [2011] IEHC 543	Expert witnesses appointed under section 47 are not court witnesses and may be challenged by parties; proper adversarial process is necessary to test expert evidence.	The court emphasized that the assessor’s report is not binding and that inadequacies in the report should be addressed through cross-examination and evidence at hearing.

Court's Reasoning and Analysis

The court began by affirming the established principle from McD v. L that expert reports under the 1964 Act are evidence to be considered but do not bind the court’s decision. The court noted that the appointment of the assessor was made pursuant to section 32 of the 1964 Act, with the assessor expected to consider factors under both subsections (1)(a) and (1)(b), given the nature of the dispute.

The court found that the Applicant’s affidavit did not present any evidential challenge to the assessor’s report nor indicate that the court failed to consider the Applicant’s arguments. The Applicant’s assertion of parental alienation was unsupported by evidence, and the court cautioned against obliging the court to appoint multiple experts based solely on allegations.

The court also considered the decision in CG v. BG, distinguishing it on the basis that in that case there was some evidential basis for parental alienation, whereas here there was none. The court concluded that the Circuit Family Court’s decision to re-appoint the existing assessor was not irrational and was within its jurisdiction.

Regarding the remedy, the court noted that the assessor had not been called to give evidence or cross-examined, and that the appropriate remedy for perceived inadequacies in the report is to address these issues through evidence and cross-examination at hearing rather than by judicial review.

Finally, the court confirmed that the Applicant had sufficient interest and that the application was made promptly, but found that the Applicant failed to meet the other established criteria for leave to apply for judicial review, particularly the existence of an arguable case and the appropriateness of judicial review as the remedy.

Holding and Implications

The court REFUSED LEAVE to the Applicant to proceed with the judicial review application.

The direct effect of this decision is that the order of the Circuit Family Court appointing the existing assessor pursuant to section 32 of the 1964 Act remains in place. No new precedent was established. The decision underscores the principle that expert assessor reports are evidence to be weighed by the court, not determinative, and that judicial review is not a substitute for proper adversarial challenge of expert evidence in family law proceedings.