The High Court refused an application to pause a Circuit Court order for a social assessment of a child, pending an appeal of the Circuit Court’s earlier judgment. It directed that the order take effect. The stay hearing did not decide the substantive appeal or determine whether the alleged abuse occurred.
The proceedings began in the Circuit Court, where D.E. sought guardianship and access to the child, identified as L.D. The child’s mother, C.D., opposed access on the basis of allegations that D.E. had sexually abused the child. D.E. denied the allegations. On 18 March 2015, the Circuit Court found the allegations untrue and directed that a report under section 47 of the Family Law Act 1995 be prepared on that premise. The report was to advise on access in the child’s best interests, including the possibility that access should not resume at that time.
C.D. appealed the Circuit Court judgment and separately sought a stay of its 18 May 2015 order appointing an assessor. She did not object to a section 47 report itself, but argued that conducting it on the basis that the allegations were untrue could affect the child and compromise the appeal. D.E. opposed a stay, arguing that further delay could harm the prospect of restoring his relationship with the child. He had not seen her since July 2013.
Justice Bronagh O’Hanlon first considered whether the High Court could hear an appeal from a Circuit Court decision made while the underlying proceedings remained ongoing. She interpreted section 38 of the Courts of Justice Act 1936 as permitting an appeal from the relevant judgment or order, even though the Circuit Court proceedings were not complete. She therefore held that the High Court had jurisdiction to consider the stay application.
The judge stressed that she was not deciding the appeal over the abuse allegations. Applying principles for stay applications, she found C.D.’s appeal was brought for genuine reasons and was stateable, without assessing its prospects of success. She then weighed the competing potential effects on the child’s welfare.
The judge said the assessment would not itself require a recommendation that access resume. She also said the assessor’s role was to consider the child’s wishes and welfare, not to confront her about the allegations, and that the assessor could be told the Circuit Court decision was under appeal and seek further directions. Concluding that a stay would impede steps to revive the father-child relationship, the High Court refused the application and directed that the Circuit Court order be effected.