In a judgment in the case of M. (Child Access Arrangements) v F. Judge Simons held that the District Court failed to preserve the necessary distinction between the evidential role of a court-appointed expert and the adjudicative role of the court and that allowing that distinction to break down had undermined the legality of the hearing itself.

Judge Simmons held that an expert witness may assist the court but cannot participate in judicial decision-making, after finding that the boundary between expert evidence and the judicial function had not been maintained during a District Court child-access hearing.

The judgment also contains important findings concerning procedural fairness, the constitutional requirement to ascertain a child’s views, judicial impartiality and the proper limits of judicial intervention during contested family-law hearings.

The case was a judicial review challenging the validity of an order made in the District Court in custody and access proceedings under the Guardianship of Infants Act 1964 in respect of a 14-year-old girl.

The District Court had directed that access visits between the father and child were to resume. The mother initiated judicial review proceedings challenging the District Court order. She did so on four grounds; that child’s views were not ascertained and considered; that the court-appointed expert was permitted to move beyond the role of a witness and was invited to participate as a co-assessor with the judge; that the mother was denied an effective opportunity to cross-examine the expert upon her expanded evidence and that the District Court judge expressed conclusions and indicated future outcomes before the evidential process had been completed. This latter conduct is said to have given rise to a reasonable apprehension of premature judgment.

On the second count the High Court held that the District Court failed to preserve the necessary division between the evidential function of the expert and the adjudicative function of the court.

The court held: “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 determination of the proceedings.”

The judgment concludes that the expert became: “…the author of the Section 32 report, a witness, an observer and evaluator of the parties’ evidence, a private interlocutor with each parent and an adviser to the judge upon the orders which might be made.”

Judge Simons concluded: “The resulting failure to maintain the division between witness and decision-maker vitiated the adjudicative process itself.”

The High Court separately held that the conduct of the hearing gave rise to an objective appearance of premature judgment.

The judgment states: “The District Court judge made a series of statements during the hearing, the timing of which gave rise to an objective appearance that the judge had reached conclusions on important, disputed issues prior to hearing all of the evidence.” One example is where the issue of transferring custody to the father was raised before the father had given evidence at the hearing.

The judgment also contains strong observations regarding the conduct of the hearing.

Judge Simons states: “The intemperate and vulgar language used during the hearing reinforces the objective appearance that the adverse views expressed were not merely provisional.” Such language included references to both the father and mother as “bad parents” to the child as having to deal with “this s**t” with reference to the mother and directing the mother to sit down as she was “done” with her.

Judge Simons explained that the significance of the language is not its tone alone but that it demonstrated conclusions which had already crystallised while the evidential process remained incomplete.

The judgment also records that at a later hearing the judge recalled having “threatened” to transfer custody, stated the mother had to be “shouted at and roared at” for hours and described her as “an absolute nightmare” and “one of the worst”.

Judge Simons concluded: “These assumptions were all hostile to the mother.”

In making an order of certiorari quashing the District Court order in its entirety Judge Simons stated this was a rare case where judicial review of a first instance decision of the District Court was appropriate. It was the finding of the court that the District Court hearing was fundamentally flawed including default in the constitutional requirement that the views of the child be ascertained with due weight given to her age and maturity. The Court further held that the fundamental flaw in the decision-making process was a denial of justice to both the mother and child.

The case was remitted to the District Court to be heard by a judge other than the original judge.

The judgment has been welcomed by the Right to Transparency, a campaign group dedicated to reform of Ireland’s family law system.

Founding member Síle Ní Dhubhghaill said: “The issues addressed in this judgment closely align with concerns the Right to Transparency campaign has raised regarding accountability, procedural fairness and the operation of expert assessments within family-law proceedings.

“It provides authoritative judicial guidance on where the legal boundaries lie and why those safeguards matter.”