The High Court rejected a father’s claim that a section 47 family-law assessor was biased and directed the same assessor to speak with the child for a limited update on his circumstances and views. The order did not call for another full section 47 report.
The appeal concerned a Circuit Court order dated 31 July 2014. The father had appealed a decision awarding custody to the child’s testamentary guardian, Mr K, and granting access to the father and the child’s maternal grandmother. The High Court judgment, delivered by Mr Justice Abbott on 6 November 2015, addressed whether an updated assessment should be prepared by the original assessor, Ms N.D., or by someone independent.
The child’s mother died in 2012. She had appointed her mother and Mr K as testamentary guardians. After an earlier section 47 report, the parties reached an agreement in November 2012 providing for Mr K to have sole custody and for the father and grandmother to have regular access. As relations later became strained, the father sought greater access and then sole custody. Ms N.D. prepared a further report in 2014, and the parties and assessor gave evidence in the Circuit Court. The Circuit Court rejected the father’s bias allegation and awarded custody to Mr K.
In the High Court, the father relied on Ms N.D.’s evidence that even if his family were “perfect in all respects” she would not have recommended that he receive sole custody. He argued that the remark showed bias and meant she should not continue as an independent expert. The applicants disputed his account that she had said she became emotional in court and argued that her full explanation considered multiple factors, including the child’s views. They also said using the assessor’s existing knowledge would reduce the strain on the child of another full assessment.
Justice Abbott treated the remark as an emphatic way of describing the weight the assessor gave to the factors behind her opinion, not as evidence of bias. He said the assessor’s role was to offer an expert opinion; the judge remained responsible for deciding facts and law. A section 47 report was evidence for the court to consider, not a decision the court had to accept.
The court acknowledged that a further full report would be the third and would burden the child. It nevertheless considered the child’s current circumstances and views relevant after the passage of time. It ordered Ms N.D. to speak with the child and report on those matters. The judgment did not determine the underlying appeal against the Circuit Court’s custody and access decision.