When the Court Stops Listening: Experts, Judicial Fairness and the Voice of the Child

JSH LAW · COMPARATIVE FAMILY JUSTICE
By Jessica Susan Hill · Reviewed 26 October 2026 · England and Wales unless stated otherwise

This article was prompted by Debbie McCann’s report in the Irish Mail on Sunday on 30 August 2026. The legal analysis below is based primarily on the published judgment, M. (Child Access Arrangements) v F. [2026] IEHC 537, delivered by Mr Justice Garrett Simons on 7 August 2026.

What happened?

The underlying proceedings concerned a mother, a father and their teenage daughter. The parents’ relationship had been marked by serious conflict. The mother alleged domestic abuse and coercive control. The father denied the allegations, although the judgment records that he acknowledged convictions for breaches of a safety order involving threatening messages in 2019. The child was also reported to have made allegations against her father, which he denied.

The High Court made no finding about whether the disputed allegations were true. That distinction matters. This was a judicial review of the lawfulness and fairness of the decision-making process, not a trial of the underlying allegations or a final decision about the child’s future relationship with either parent.

An expert report had been commissioned under section 32 of Ireland’s Guardianship of Infants Act 1964. The expert met the child twice. At the time of the second meeting, the child was 12. She reportedly said that she did not want fixed access and wanted to decide when she saw her father. She described him as frightening and expressed concern about being questioned about what she had said. The expert considered that information from others had coloured the child’s view and recommended overnight and holiday access.

By the time of the District Court hearing in October 2025, around 12 months had passed since the expert had spoken to the child. The circumstances were no longer the same. The court had been told about reported self-harm and suicidal ideation, deterioration in the child’s presentation, psychotherapy, further allegations, a protection order and an awaited assessment by Barnardos.

The District Court nevertheless ordered daytime access to resume, made associated directions and discharged the protection order. It warned that custody would be transferred if access did not take place. The mother brought judicial review proceedings.

The four failures identified by the High Court

1. The child’s current voice was missing

The court did not have a sufficiently current account of the girl’s views. There is no automatic expiry date for a child-focused report. Its reliability depends on the child’s age and development, the time that has passed, the decision being considered and what has changed in the meantime.

Here, the changes were substantial and directly relevant to contact, safety and emotional welfare. The expert properly acknowledged that she had not seen the child for a year and could not assess the changed circumstances or current risk “on the hoof”. The High Court held that a suitable process should have been put in place to obtain the child’s contemporary views—perhaps an updated report, a meeting with the judge, or another appropriate method.

The judgment makes a particularly valuable distinction: hearing a child’s wishes and obtaining a clinical assessment of risk are not the same exercise. A child can explain what she thinks, feels and has experienced. She cannot be expected to provide a professional assessment of the risk of further self-harm. Equally, a clinical risk assessment does not replace the child’s own voice. The court needed current information about both and had neither.

2. The expert moved beyond the role of witness

At the hearing, the expert was allowed to remain in court while the parents gave evidence. She then spoke privately and separately with each parent during an adjournment. Those conversations were not recorded as evidence. On being recalled, she evaluated what she had heard, drew on the private discussions, developed new views and advised on possible outcomes, including a transfer of custody.

The High Court found that the expert had effectively become the report writer, witness, observer, evaluator, private interlocutor and adviser on the order. That blurred a boundary which must remain clear:

An expert can offer a properly reasoned opinion within their expertise. They can explain the likely welfare implications of different options. They cannot make findings of disputed fact, decide whose evidence is true, share the judicial evaluation or determine the order. The judge cannot subcontract the welfare decision, however influential or experienced the professional may be.

3. The expanded evidence could not be tested effectively

The expert’s oral evidence went materially beyond her written report. It included new descriptions of the relationship between mother and child, new views about the reported risk and new consideration of a transfer of custody. Those opinions were significant because the court later used the same framework when assessing the mother and deciding what should happen.

Cross-examination had initially been deferred by the judge, but the promised opportunity was not restored after the expert’s role and opinions had expanded. The High Court held that the mother had been denied a meaningful opportunity to test the information obtained privately, the assumptions underlying the new opinions and the reasoning that led to them.

This is not merely a technical entitlement. Testing evidence helps the court. It can expose an inaccurate factual premise, a missing record, a misunderstood chronology, an opinion outside the expert’s discipline or an alternative explanation that was never explored.

4. The court appeared to have reached conclusions too soon

A judge is allowed to ask difficult questions, identify weaknesses and express a provisional view. That can help the parties understand which points require evidence or submissions. The line is crossed when the language, timing and surrounding circumstances reasonably convey that the judge’s mind is already closed.

In this case, adverse conclusions were expressed before all the evidence had been heard and before the expert’s expanded opinions had been tested. A proposed witness was excluded before counsel had been allowed to explain fully why his evidence might matter. The possibility of transferring custody was raised before the father had given evidence, and future transfer was presented as the consequence that would follow if access did not take place.

The High Court also considered the tone and content of the language used. It was not simply that the exchanges were robust. Mr Justice Simons found that the intemperate, sarcastic and vulgar remarks reinforced the objective appearance that conclusions had already crystallised. He described the assumptions expressed as “all hostile to the mother”.

The hearing was found to be “fundamentally flawed”. The entire order was quashed, including the discharge of the protection order, which was thereby revived. The case was remitted for a fresh determination by a different District Court judge.

Why this matters in England and Wales

The Irish constitutional and statutory framework is different. Nevertheless, the central safeguards identified in the judgment are deeply familiar to family law in England and Wales.

A child’s voice cannot be dismissed merely because influence is alleged

The Irish High Court accepted that possible influence may need to be investigated. It held, however, that concern about influence does not remove the prior obligation to ascertain the child’s views.

The position in England and Wales is strikingly similar. The Family Justice Council’s guidance on allegations of alienating behaviour warns against dismissing a child’s voice without compelling evidence that psychological manipulation has affected the child’s ability to express wishes freely. It also warns against treating adult-sounding language, rigidity or frustration as proof of coaching.

This is vital in cases where a child resists contact. The possibilities may include direct experience of abuse, fear, loyalty conflict, alignment, trauma, developmental factors, influence by a parent, ordinary adolescent autonomy, or a combination of causes. The answer must be found through careful evidence and analysis—not by choosing a label first and forcing the facts into it.

A transfer of care is not a punishment

In England and Wales, the child’s welfare remains paramount. The Family Justice Council says that a transfer of care should not be used as a sanction for a parent’s refusal to restore a relationship or failure to comply with a “spend time with” order. Non-compliance can be relevant evidence, but it is not itself a welfare analysis.

A court contemplating a change of home must assess the actual child: the child’s current wishes and feelings, safety, attachments, mental health, education, sibling relationships, relationship with the proposed carer, the practical plan for transition and the risk that the new placement may fail. A threat cannot replace that work.

Domestic abuse allegations cannot be bypassed by a welfare label

Where domestic abuse or coercive control is alleged in child-arrangements proceedings, Practice Direction 12J requires the court to identify the factual and welfare issues, decide how any material dispute will be determined and ensure that interim or final arrangements do not expose the child or either parent to an unmanageable risk of harm.

Terms such as “conflict”, “enmeshment”, “gatekeeping” or “alienation” must not become shortcuts around disputed abuse evidence. A professional theory does not determine whether abuse occurred. That is a judicial question, decided on evidence and to the civil standard of proof where a determination is necessary.

Cafcass, guardians, experts and judges: the roles are different

People understandably use “expert” as shorthand for any professional who gives the family court advice. Legally, that can obscure important differences. A Cafcass officer or children’s guardian is not a Part 25 expert merely because their professional opinion carries weight. The boundaries still matter.

Practice Direction 25B states that an expert’s overriding duty is to the court, that the opinion must be independent and confined to material questions within the expert’s expertise, and that the report must distinguish facts from assumptions and opinions. These are safeguards, not formalities.

Warning signs that deserve careful attention

None of the following automatically proves that a report is inadmissible, a judge is biased or an order is appealable. Context and materiality matter. But they are warning signs that should be addressed clearly and promptly:

• The child-focused report predates major changes in age, health, education, placement, allegations, contact or risk.
• The professional gives an opinion on an issue they were not instructed to address.
• Disputed allegations are treated as established facts without a judicial finding or clearly identified evidential basis.
• Labels are used without definition, supporting facts, methodology or consideration of alternative explanations.
• New information is obtained privately and then relied upon without disclosure and a fair chance to respond.
• A written report materially expands at court but no meaningful opportunity is given to question the new opinion.
• A child’s stated experience is discounted solely because one parent alleges coaching or alienation.
• The judge describes a disputed outcome as fixed before relevant witnesses and submissions have been completed.
• A change of the child’s home is presented as a sanction for a parent’s conduct rather than as the result of a current, child-specific welfare analysis.

What can a litigant in person do?

Before the hearing

1. Read the order and instructions. Identify exactly what the professional was asked to investigate and what falls outside that remit.
2. Check the report’s currency. Prepare a short chronology of material changes since the child was seen or the report was written.
3. Separate facts, assumptions and opinions. Note which facts are agreed, disputed, evidenced, omitted or expressed without a source.
4. Ask focused questions. Questions should test the factual basis, method, expertise, alternative explanations and reasoning—not attack the professional personally.
5. Seek directions early. If an addendum, updated wishes-and-feelings work, disclosure, written questions or the professional’s attendance is necessary, raise it before the final hearing where possible.

During the hearing

Keep the intervention respectful, short and tied to fairness or welfare. Useful formulations may include:

A difficult ruling is not improved by accusing the judge of corruption or shouting “bias”. The strongest approach is usually to identify the unfinished evidence, the precise procedural safeguard at risk and the practical direction needed to put matters right.

After the hearing

• Obtain the sealed order and the judgment or reasons as quickly as possible.
• Preserve a dated written note of what was said, who was present, what evidence remained outstanding and what requests were made.
• If necessary, request the official recording or transcript through the proper process. Do not make a covert recording of a family court hearing.
• Seek urgent advice about appeal, permission and a stay. Under Family Procedure Rules Part 30, the filing deadline may be 7 or 21 days, another period may be directed, and an appeal does not itself suspend the order.
• Do not wait for a transcript before protecting a deadline. Practice Direction 30A recognises that an appeal notice may need to be completed from the available documents and amended later with permission.

What the judgment does not mean

• It does not mean that experts are unnecessary or that their recommendations should routinely be rejected.
• It does not mean that a child’s wishes automatically determine the outcome.
• It does not mean that a robust question or adverse provisional view proves judicial bias.
• It does not determine whether the allegations made by either parent in this case were true.
• It does not establish that the expert committed misconduct.
• It does not mean that every procedural mistake justifies judicial review or appeal. The Irish High Court repeatedly described this as an exceptional case involving fundamental defects.

The deeper safeguarding lesson

Procedural fairness is not separate from safeguarding. In a case involving a vulnerable teenager, reported self-harm, suicidal ideation, disputed abuse allegations and a protection order, the quality of the process directly affects the safety of the outcome.

Hostile or humiliating language can inhibit evidence. It can impair a traumatised person’s ability to think, respond and correct an inaccurate assumption. An overextended expert role can turn an opinion into an untested narrative. An out-of-date account of a child’s wishes can preserve a version of that child that no longer exists. A threatened outcome can convert a welfare inquiry into coercion.

Family courts make decisions that can reshape a child’s home, relationships, identity and sense of safety. The route to the decision therefore matters. Evidence must remain evidence. Disputed facts must be decided by the court. Professional opinions must be transparent and capable of challenge. The child must be heard in a safe, age-appropriate and sufficiently current way. The judge must remain open to persuasion until the evidential process is complete.

Sources and further reading

• M. (Child Access Arrangements) v F. [2026] IEHC 537—High Court of Ireland judgment.
• Irish Legal News: High Court clarifies the role of expert witnesses in family cases.
• Law Society of Ireland Gazette: District Court’s child-access order quashed.
• Children Act 1989, section 1.
• Family Procedure Rules, Practice Direction 25B.
• Practice Direction 12J: Child Arrangements and Domestic Abuse and Harm.
• Family Justice Council guidance on responding to allegations of alienating behaviour.
• C (Children: Premature Determination) [2025] EWCA Civ 1481.

General information and commentary, not advice on an individual case. JSH Law provides non-reserved litigation support, document-preparation assistance and McKenzie Friend support, subject to the court’s permission where required. It is not an SRA-authorised solicitors’ firm and does not conduct litigation or exercise reserved rights of audience on a client’s behalf. Obtain appropriately regulated legal advice where needed. Comparative foreign law is not binding in England and Wales.