The Court of Appeal has dismissed a father’s appeal seeking a psychological report concerning his 17-year-old child, identified in the judgment as X. It held that section 47 of the Family Law Act 1995 does not allow a court to order a report as a stand-alone measure when there is no specific question about the child’s welfare for the court to decide in the proceedings.
The appeal arose from judicial separation proceedings brought by the father in October 2021. He had initially sought joint custody and access orders concerning X, but accepted in the High Court that he was no longer seeking those orders. He said X and his other children had stopped communicating with him and alleged that their mother had influenced them against him. The mother denied parental alienation and said the children’s decision reflected the father’s behaviour towards them.
The father asked the High Court to appoint a psychologist under section 47. The High Court refused. The father appealed, arguing that the court should have taken his concerns about X’s welfare at their highest and had relied on the mother’s account that X opposed an assessment. The mother opposed the appeal, maintaining that there was no welfare issue for the court to determine and that a report was inappropriate given X’s age.
Delivering the Court of Appeal’s judgment on 16 June 2023, Ms Justice Butler said section 47 provides a procedure to assist a court in deciding another relief sought in the proceedings; it is not itself a free-standing form of relief. The father had withdrawn his requests for custody and access orders, and the court found there was no realistic prospect that a report could affect a question about X’s welfare before X turned 18. The appeal was dismissed on that jurisdictional basis.
The court also gave observations on the evidence and merits, expressly describing them as obiter because the jurisdictional issue disposed of the appeal. It said the mother’s account of X’s reported opposition was hearsay and could not establish X’s actual views. The father could have sought to cross-examine the mother but did not. The court did not decide whether the High Court was wrong to rely on that account.
The Court of Appeal added that it would refuse the application on its merits in any event. X was close to adulthood, and the court considered it inappropriate to compel a young person to undergo a psychological assessment without ongoing consent when no welfare order could be made after their eighteenth birthday. It also considered the likely usefulness of a report insufficient to justify its cost and intrusion. The court proposed that the mother receive her appeal costs, subject to the father’s opportunity to file written submissions within 14 days; the judgment does not record a final costs order.