The High Court granted C.J. limited leave to pursue judicial review over whether she should have been allowed to cross-examine a social work team leader about a report used in proceedings concerning access to her child. The court did not decide whether cross-examination was required; that issue remains to be determined.
In a judgment delivered on 18 March 2016, Mr Justice Richard Humphreys said C.J. had identified an arguable ground concerning the alleged failure to permit her to question Mary Tiernan about her report under section 20 of the Child Care Act 1991. The judge said a party may arguably be entitled to challenge adverse expert evidence by cross-examination if a court is to rely on it.
The report, prepared after Judge Seamus Hughes ordered an update, supported continued consistent access but did not recommend overnight visits at that time. It also said a previously identified concern about inappropriate physical boundaries in C.J.’s relationship with her children remained. The judgment records that earlier agency reports had also not recommended overnight access.
Despite those reports, the District Court varied an existing access order on 21 December 2015, allowing overnight access on the last Saturday of each month as well as weekly Friday afternoon access. C.J.’s judicial review application challenged the process by which that variation was made. She had not sought to have the District Court order quashed. The High Court said a mandatory order requiring a different hearing after it had concluded was therefore not appropriate, and instead allowed her to seek a declaration about cross-examination.
The court refused C.J.’s proposed revised statement of grounds, which sought, among other things, changes to access arrangements and a declaration about a meaningful relationship. It said those matters concerned the merits of the access decision or were better suited to an appeal or further variation application. Leave was also refused for the other reliefs in her original application, including damages and discovery.
The court directed that the anonymity order protecting non-professional people continue permanently. It ordered that Judge Hughes be removed as respondent and that M.S. take that role, with Tiernan as the sole notice party. C.J. was given three weeks to file and serve an amended statement of grounds and an originating notice of motion. Costs were reserved.