Factual and Procedural Background
The mother and father are joint guardians of a fourteen-year-old child. Their relationship has involved significant conflict, including disputed allegations of domestic abuse, coercive control and conduct affecting the child’s opposition to contact. [1][2][3][4]
A section 32 report was prepared following interviews with the parents and two meetings with the child. The report recorded that the child could form her own views and recommended structured access and psychotherapy. [5][6][7][8][9]
At a District Court hearing, the judge directed that access resume and made related directions concerning counselling, school information, telephone contact and a mental-health assessment. A protection order benefiting the mother was discharged. [10][11][12][13]
The mother brought judicial review proceedings challenging the order. The High Court granted leave, extended time and stayed the District Court order pending the substantive hearing. [14][15][16][17][18]
Legal Issues Presented
- Whether the District Court failed to ascertain and give due weight to the child’s contemporary views. [19][20][21][22]
- Whether the court-appointed expert improperly participated in the adjudicative process. [19][23][24][25]
- Whether the mother was denied an effective opportunity to cross-examine the expert on materially expanded evidence. [19][26][27]
- Whether the District Court judge gave rise to an objective appearance of premature judgment. [19][28][29]
- Whether these alleged defects were fundamental flaws permitting judicial review despite the availability of a statutory appeal to the Circuit Court. [30][31][32][33]
Arguments of the Parties
Mother’s Arguments
- The District Court regulated access without first ascertaining the child’s contemporary views. [34][35]
- The expert was allowed to move beyond the role of a witness and effectively participate as a co-assessor. [36][37]
- The mother was not given an effective opportunity to cross-examine the expert after the expert developed new opinions based partly on private consultations. [27][38][39]
- The judge expressed adverse conclusions about the mother and indicated future custody outcomes before the evidence was complete. [40][41][42][43]
- Recusal before the same District Court could not remedy the already-completed process or the order made on 10 October 2025. [44]
Father’s Arguments
- The subsequent District Court listings showed that the process remained ongoing and could respond to updated information. [45]
- The mother should have returned to the District Court and sought recusal of the original judge before bringing judicial review proceedings. [46][47][48]
- The father relied on the expert’s view that information received by the child had influenced her opinion of him and that she had been affected by the opinions of others. [49]
- The father pointed out that counsel had not expressly renewed the request for cross-examination when the expert was recalled. [39]
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| A.B. v. Chief International Protection Officer [2026] IESC 23, [2025] 2 I.L.R.M. 305 |
Judicial review may proceed despite an alternative remedy only where there is a fundamental denial of justice, default of fundamental requirements or fundamental flaw in the decision-making process. |
The alleged failures concerning the child’s views, the expert’s role, cross-examination and premature judgment were capable of satisfying this exceptional threshold. [30][50][51][33][34][37][52] |
| Amariei v. Chief Appeals Officer [2026] IESC 22, [2025] 2 I.L.R.M. 335 |
An adequate statutory appeal should ordinarily be exhausted before judicial review; the issue should generally be addressed at the leave stage and may be dispositive. |
The High Court considered the alternative-remedy issue before the merits and concluded that the exceptional nature of the alleged defects justified judicial review. [32][53][54][55][56][57] |
| M. v. M. [2019] IECA 124, [2019] 2 IR 402 |
A judge whose decision is challenged by judicial review should not ordinarily be joined as a respondent, whether by name or anonymously, absent allegations of personal misconduct. |
The District Court judge was removed from the title and the father recorded as sole respondent. [58][59][60][61] |
| Tickle v. Surrey County Council [2025] EWCA Civ 42, [2025] 2 WLR 714 |
Open justice requires judicial identification so that the administration of justice remains transparent and subject to scrutiny. |
The principle supported the interpretation that the District Court judge should not be anonymised as a party. [62] |
| D.K. v. P.I.K. [2021] IECA 54 |
A section 32 expert assists the court in determining the child’s views but does not determine the proceedings; the judicial task cannot be delegated. |
The District Court breached the required division between expert evidence and judicial decision-making by allowing the expert to evaluate evidence and advise on orders. [63][64][65][66][23][25] |
| D.K. v. P.I.K. (Child Relocation) |
Material obtained outside the ordinary evidential process cannot be relied upon without disclosure and an opportunity for the parties to address it; judges should avoid interventions suggesting predisposition or hostility. |
The expert’s private consultations created an additional procedural difficulty, and the judge’s conduct supported the finding of premature judgment. [39][67] |
| J.Mc.D. v. P.L. [2009] IESC 81, [2010] 2 IR 199 |
An expert report is evidence for the court and has no presumptive or determinative weight; the court remains responsible for deciding the child’s best interests. |
The principle applied equally to a report under section 32 of the Guardianship of Infants Act 1964. [68][69][65] |
| L.H. v. P.J. [2024] IEHC 340 |
A section 32 report is an expert report forming part of the evidence, and deficiencies should ordinarily be challenged at the substantive hearing. |
The court relied on this framework in defining the auxiliary nature of the expert’s role. [66] |
| A.P. v. His Honour Judge McDonagh [2009] IEHC 316 |
Premature judgment arises where an adjudicator indicates that a conclusion has been reached before it is proper to do so; the assessment is objective and context-dependent. |
The judge’s statements about credibility, responsibility and custody were found capable of conveying concluded views before the evidence was complete. [29][70][71][72][41][73] |
| State (Abenglen Properties Ltd) v. Corporation of Dublin [1984] I.R. 381 |
Certiorari serves the supervisory function of ensuring that lower courts exercise jurisdiction properly and promoting uniform administration of the law. |
The High Court held that the alleged disregard of fundamental requirements engaged its supervisory jurisdiction. [74][75][56][76][77] |
Court's Reasoning and Analysis
The ordinary remedy for a District Court custody or access order is an appeal to the Circuit Court, which proceeds by rehearing and can receive updated evidence, obtain a further expert report and ascertain the child’s contemporary views. [78][79][80]
Nevertheless, the High Court held that judicial review remained available where the alleged defects concerned the fundamental integrity of the decision-making process rather than merely the correctness of the result. [81][82][34][37][52]
The child’s only directly obtained views were approximately twelve months old by the hearing. Significant intervening events included a school transition, reported self-harm, suicidal ideation, psychotherapy, further allegations and a protection order. The District Court had no procedure in place to ascertain the child’s contemporary views and therefore disregarded a fundamental constitutional and statutory requirement. [83][84][85][86][87][88][89][90]
The expert’s role was auxiliary. However, the judge deferred cross-examination, allowed the expert to hear the parties’ evidence, permitted private consultations, and invited the expert to evaluate evidence and advise on possible orders. This effectively made the expert a co-assessor and vitiated the adjudicative process. [23][91][92][93][24][25][94]
The mother was also denied an effective opportunity to test the expert’s expanded evidence. Because the judge had deferred cross-examination and the expert subsequently acquired information and formed new adverse opinions, the court—not counsel—was responsible for restoring that opportunity. The failure of counsel to repeat the request did not amount to informed waiver. [27][38][95][39]
The judge’s statements about the mother, the child and possible transfer of custody were assessed in context. They were made while evidence remained outstanding, were not expressed as provisional concerns, and could reasonably suggest that the judge’s conclusions had crystallised. Later remarks showed that the adverse assessment continued to influence the judge’s approach. [28][96][41][73][97][98][99][100][101][102]
A recusal application was not an adequate alternative remedy because withdrawal of the judge from future proceedings could not remedy the earlier hearing or the immediate access order already made. [103][44][104][105]
Holding and Implications
Judicial review was appropriate, and the District Court order was quashed in its entirety. The High Court found fundamental flaws in the hearing, including failure to ascertain the child’s contemporary views, improper involvement of the expert, denial of effective cross-examination and premature judgment. [106][107][108]
The provisions concerning access, handovers, counselling, school information, telephone contact and discharge of the protection order were treated as one composite determination. Quashing the order revived the protection order, which the father was required to obey until further order of the District Court. [108][109]
The underlying custody and access proceedings were to be remitted to a different District Court judge for reconsideration. The newly assigned judge was to determine how the child’s views should be ascertained. [110][111][112][113][114]
The broader reliefs seeking general regulation, accreditation and training requirements for section 32 experts were refused. The mother was provisionally regarded as entitled to costs against the father. [115][116][117][118]