Factual and Procedural Background
This judicial review concerns an ongoing custody and access dispute about a 14-year-old child, in which the Circuit Court declined to compel access or video calls contrary to the child’s wishes. [Para 13][Para 16] The Applicant/Father brought the present proceedings against the Respondent/Mother to challenge the validity of the Circuit Court’s order and, in particular, the appointment and use of a court-appointed expert under section 32 of the Guardianship of Infants Act 1964. [Para 17][Para 18] The dispute had already generated earlier judicial review proceedings, in which leave was refused in 2024. [Para 19][Para 41][Para 42]
The procedural history began with a section 32 report ordered by the District Court in July 2021, which recommended that no further access be scheduled and supported a structured, therapeutic approach if contact were to resume. [Para 25][Para 29][Para 30] The District Court later discharged the existing access order in February 2023 and directed that access occur in accordance with the child’s wishes, after which the father appealed to the Circuit Court. [Para 31][Para 32] The Circuit Court then ordered an updated section 32 report, which the father opposed on the basis that the assessor lacked specialist expertise in parental alienation. [Para 34][Para 36][Para 39]
The first judicial review proceedings challenged the reappointment of the same expert, but leave was refused because the expert was a qualified and experienced social worker and the report was treated as part of the evidence, not as determinative. [Para 39][Para 41][Para 42][Para 43] An updated report was then prepared in 2024, again recording the father’s parental-alienation allegations and the expert’s recommendation that the child’s wishes be respected, with any future contact to be structured and supported. [Para 47][Para 48][Para 49][Para 50] The Circuit Court later heard the substantive appeal, accepted evidence from both parents and the expert, and varied the access arrangements to maintain child-led contact and information-sharing. [Para 54][Para 55][Para 58] The present application for leave to judicially review was then heard and reserved in 2026. [Para 61][Para 64]
Legal Issues Presented
- Whether an expert appointed under section 32 of the Guardianship of Infants Act 1964 must have specialist expertise in parental alienation or parental alienation syndrome in order to be validly appointed. [Para 18][Para 100][Para 106][Para 110]
- Whether the Circuit Court acted unlawfully in relying on the court-appointed expert’s report and oral evidence after she accepted that she did not have specialist expertise in parental alienation. [Para 56][Para 58][Para 118][Para 122]
- Whether the father’s reliance on parental-alienation authorities and ECtHR case law disclosed an arguable ground for judicial review. [Para 139][Para 140][Para 163][Para 173]
Arguments of the Parties
Applicant/Father's Arguments
- The father argued that where parental alienation is alleged, the court must appoint an expert with specialist expertise in that subject, and he identified only four professionals whom he considered qualified. [Para 18][Para 35]
- He contended that the first report failed to investigate parental alienation adequately and that the updated assessment should have been carried out by a different specialist. [Para 34][Para 39]
- He submitted that his son’s case involved no remaining welfare issue other than parental alienation, and that the assessment therefore had to be undertaken by a clinical psychologist trained in that area. [Para 97][Para 98]
- He relied on the expert’s evidence that she had not specifically studied parental alienation and had not carried out a parental-alienation diagnostic test, arguing that the Circuit Court should not have acted on her evidence. [Para 56][Para 57][Para 118][Para 120]
- He also relied on C.G. v. B.G. and on two ECtHR decisions, Kutzner v. Germany and Y.C. v. United Kingdom. [Para 139][Para 163][Para 165][Para 168]
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| G. v. Director of Public Prosecutions [1994] 1 IR 374 |
Sets the leave threshold for judicial review: a prima facie stateable ground, an arguable case in law, and the need for JR to be the only effective or more appropriate remedy. [Para 66] |
The Court used this as the governing leave test and focused on whether the proposed grounds were arguable. [Para 66][Para 72] |
| O'Doherty v. Minister for Health [2022] IESC 32; [2023] 2 IR 488; [2022] 1 ILRM 421 |
Confirms that the leave threshold is one of arguability, not reasonable prospect or likelihood of success. [Para 67][Para 70] |
The Court relied on it to stress the low threshold and to reject merits-based objections at the leave stage. [Para 71][Para 72] |
| D.K. v. P.I.K. [2021] IECA 54 |
Explains the section 32 role of the court-appointed expert and the significance of the 2018 Regulations. [Para 78][Para 82] |
The Court relied on it to describe section 32 as a mechanism for eliciting and conveying the child’s views, with the expert bringing expertise to that task. [Para 79][Para 84] |
| J.Mc.D. v. P.L. [2009] IESC 81; [2010] 2 IR 199 |
Holds that expert reports are part of the evidence, not determinative, and are subject to testing by the court. [Para 86][Para 87] |
The Court applied the same logic to section 32 reports and held that the trial court remains the decision-maker. [Para 87][Para 91] |
| L.H. v. P.J. [2024] IEHC 340 |
Held in earlier proceedings that Ms McGovern was an expert within the 2018 Regulations and that the report was evidence, not a binding determination. [Para 41][Para 42][Para 90] |
The Court respectfully agreed, while also stating that it was reaching its conclusion independently and not by res judicata or issue estoppel. [Para 111][Para 112][Para 113] |
| F.G. v. Child and Family Agency [2018] IESC 28 |
An earlier refusal of leave does not necessarily bar a later judicial review, though rerunning the same challenge may be an abuse of process. [Para 112] |
The Court mentioned it only to explain that it was reconsidering eligibility afresh and not simply applying estoppel. [Para 112][Para 113] |
| Sweeney v. Fahy [2014] IESC 50 |
Judicial review concerns legality, not correctness; evidential adequacy is not ordinarily a basis for unlawfulness; and appeal may be the proper remedy. [Para 123][Para 124][Para 126] |
The Court used it to reject the father’s attempt to re-open evidential assessment and weight. [Para 122][Para 127][Para 133] |
| C.G. v. B.G. [2019] IEHC 15 |
Considered parental alienation allegations and professional investigation, but did not lay down a rule requiring a specialist parental-alienation expert. [Para 139][Para 140] |
The Court held that it did not support the father’s broader proposition. [Para 139][Para 140][Para 141] |
| Kutzner v. Germany (Application no. 46544/99, 26 February 2002) |
Article 8 proportionality in child protection/family separation; insufficient consideration of alternatives can render interference disproportionate. [Para 165][Para 167] |
The Court said it was not in point because it did not concern the qualifications or specialism of a court-appointed expert. [Para 167] |
| Y.C. v. United Kingdom (Application no. 4547/10, 13 March 2012) |
Article 8 does not always require a further assessment where existing professional evidence is adequate and further delay/disruption would not help. [Para 168][Para 169] |
The Court relied on it to reject the argument that parental-alienation allegations require a further specialist assessment. [Para 169][Para 173] |
Court's Reasoning and Analysis
The Court first applied the arguability threshold for leave, noting that the father had to show a prima facie stateable ground and an arguable case in law. [Para 66][Para 72] It then distinguished between section 32(1)(a), which concerns reports on welfare questions, and section 32(1)(b), which concerns experts appointed to determine and convey the child’s views. [Para 76][Para 77][Para 101]
On the appointment issue, the Court held that the 2018 Regulations set eligibility criteria only for section 32(1)(b) experts and do not require a separate qualification in parental alienation or parental alienation syndrome. [Para 103][Para 106] The Regulations instead require professional category, relevant experience, and indemnity insurance, all of which the Court found satisfied on the evidence before it. [Para 103][Para 104][Para 111]
The Court further held that the Regulations expressly contemplate that a qualified expert may assess whether a child’s expressed views are affected by undue influence, without using any particular diagnostic test or methodology. [Para 107][Para 109][Para 160] It therefore rejected the argument that the father’s preferred parental-alienation specialist was legally required. [Para 110][Para 114][Para 158]
On the challenge to the Circuit Court’s treatment of the evidence, the Court emphasized the limited role of judicial review: the High Court does not reweigh evidence, resolve factual disputes, or substitute its own assessment for that of the trial court. [Para 122][Para 124][Para 127] Because the father had cross-examined the expert and the Circuit Court was fully aware of the limits of her expertise, there was no factual misapprehension or unlawful reliance on evidence. [Para 128][Para 129]
The Court held that the father’s complaint was really a merits-based disagreement with how the Circuit Court assessed the expert evidence, which is not enough for judicial review. [Para 130][Para 133][Para 137] It also said that the expert’s prospective assessment of likely future harm or benefit was a permissible professional judgment, not impermissible speculation. [Para 134][Para 137]
The Court rejected the reliance on C.G. v. B.G., explaining that it did not establish a rule that every allegation of parental alienation must be investigated by a specialist in that concept. [Para 139][Para 141] It also noted that parental-alienation syndrome is scientifically and professionally controversial, with no agreed gold standard of assessment, making it impossible to derive a mandatory legal requirement to use that framework. [Para 148][Para 155][Para 158]
The ECtHR authorities did not assist the father because they concerned proportionality and the sufficiency of existing professional evidence, not the specialist credentials of a domestic expert. [Para 165][Para 169][Para 173] The Court therefore concluded that neither the appointment challenge nor the evidential challenge disclosed an arguable ground for judicial review. [Para 145][Para 175][Para 182]
Holding and Implications
LEAVE REFUSED. The application for leave to apply for judicial review was dismissed because the father failed to show an arguable ground. [Para 175][Para 182] The immediate consequence is that the Circuit Court’s order stands, and the mother was provisionally held entitled to her costs, subject to further submissions. [Para 183][Para 184] The judgment reaffirms existing principles on section 32 experts, the limited scope of judicial review, and the non-mandatory status of parental-alienation terminology in this context. [Para 114][Para 122][Para 160][Para 173]