In a decision of Judge Simons of the High Court, in M (child access arrangements) -v- F, the High Court clarified the role of the Court and the Section 32 assessor in applications where the voice of the child is being heard.
This decision was on foot of a judicial review which challenged the validity of an order made in the District Court for custody and access in respect of a fourteen year old girl.
The District Court directed that access visits between the father and child were to resume. The mother initiated Judicial Review Proceeding on four grounds –
- The child’s views were not ascertained and considered.
- The Court appointed an expert who was permitted to move beyond the role of a witness and was invited to participate as a co-accessor with the Judge;
- The mother was denied an effective opportunity to cross-examine the expert upon her expanded evidence.
- The District Court Judge expressed conclusions and indicated future outcomes before the evidential process had been completed.
The High Court Judge made the following findings: –
- The District Court had failed to preserve the necessary division between the evidential function of the expert and the adjudicative function of the Court
- Found that the expert was permitted to move beyond the role of a witness and to participate in effect, as a co-assessor in the evaluation of the evidence and the decision-making function of the Court, and the failure to maintain the division between witness and decision maker vitiated the adjudicative process itself
- The Judge also held that the initial observations of the Court before evidence was given gave rise to the appearance of premature judgement.
The Court held that the District Court hearing was fundamentally flawed and so he found that the constitutional requirement that the views of the child be ascertained with due weight being given to her age and maturity and that this had not occurred.
The case was sent back to a different District Court Judge.
This case highlights the importance of the views of the child being heard but also that Judges cannot make findings or conclusions until such time as evidence has been given.
For further information on any family law matter please do not hesitate to contact any of our Family Law Solicitors, Brendan Dillon, Emma Dillon or Alice Downey on 01 2960666.
