The Voice of the Child: Are We Actually Hearing It?

By Anne-Marie Maher

This article reflects my personal views, informed by my experience in family law practice. It is general commentary on the recent guidelines and High Court decision discussed below, not legal advice. Advice should be obtained on the particular circumstances of any case.

When parents are in dispute about custody or access, adults make decisions that will shape a child’s daily life. My concern is whether the child is meaningfully heard in that process. An interview and a report do not, on their own, answer that question.

The January 2026 Judicial Guidelines principally concern welfare expert reports under section 32(1)(a) of the Guardianship of Infants Act 1964 and section 47 of the Family Law Act 1995. The Voice of the Child Report Guidelines and Templates address the distinct child-views function under section 32(1)(b) and section 27 of the Domestic Violence Act 2018. Together with the decision of Simons J in the High Court in M. (Child Access Arrangements) v F. [2026] IEHC 537, they invite us to examine how reports are prepared, funded and used. The two sets of guidelines should be read with their different functions in mind.

Hearing the child without making the child decide

Irish law requires the views of a child capable of forming their own views to be ascertained, so far as practicable, and given due weight according to age and maturity. The child’s best interests remain paramount (Guardianship of Infants Act 1964, sections 3 and 31(2)(b)).

This does not mean asking a child to choose between parents. Responsibility for the decision belongs to the court. The child should have a safe opportunity to explain their experiences and wishes and understand the process. The Voice of the Child Guidelines envisage a closing communication explaining how the child’s views were conveyed and what happens next; this should not be confused with an established obligation to explain the final judicial outcome. Children should also be free to decline to express views.

There is an important distinction between a welfare assessment under section 32(1)(a) and a report conveying the child’s views under section 32(1)(b). The Voice of the Child Guidelines direct that a standalone report conveys the child’s words verbatim rather than interpreting or analysing them, and does not contain custody or access recommendations. However, the prescribed template allows comment on the integrity and limitations of the process, possible undue influence and whether further expert or safeguarding intervention may be required (Part 1 and Appendix 3).

Hearing a child’s views, assessing welfare and assessing clinical risk are different tasks. The appointment must be clear.

In my experience, persistent litigation driven by parental point-scoring can cause profound harm to a child, undermine stability and prolong uncertainty. Neither a section 32 assessment nor the proceedings themselves should become an arena for deciding which adult has “won”. Where safe and appropriate, parents must put aside personal grievances and cooperate about their child; an assessment cannot substitute for that responsibility.

Regardless of whom we represent, or whether the case is before the District Court, Circuit Court or High Court, we as practitioners must remain mindful of the children affected. We should present cases firmly and fairly, avoid unnecessary escalation and progress them without avoidable delay. Ordinary parenting disagreements should not be presented as welfare concerns without a proper basis, while genuine concerns about welfare, abuse or safety must always be taken seriously and properly examined. Children live with the consequences of our approach throughout the proceedings, not merely when the final order is made.

A report must remain relevant

In M. v F., the child had last been interviewed approximately twelve months before the District Court hearing. Significant developments had occurred, including reported self-harm and suicidal ideation.

The High Court identified fundamental defects: failure to ascertain the child’s contemporary views, a blurring of the roles of expert and judge, no effective opportunity to cross-examine the expert on expanded evidence, and an objective appearance of premature judgment. The judgment stated that certiorari would issue to quash the order and proposed remittal to a different District Court judge. These were exceptional procedural failings justifying judicial review; judicial review is not the ordinary response to an unsatisfactory report (paras. 101–121 and 151–155).

The judgment did not determine the disputed allegations or the appropriate long-term arrangements. It imposed no fixed expiry date on reports. Its practical lesson is that an earlier assessment must be considered against subsequent developments, and contemporary views ascertained so far as practicable. Simons J also distinguished obtaining the child’s views from obtaining a current clinical assessment of reported risk. In my view, we should never assume that the child’s participation has been dealt with simply because a report exists.

The cost of being heard

Reports require professional time and expertise. Nevertheless, the financial burden deserves scrutiny. The fee framework for a section 32(1)(b) child-views expert must be distinguished from the potentially different costs of a section 32(1)(a) welfare assessment. S.I. No. 587/2018 prescribes maximum fees of €240 or €325, depending on the specified child-views function, and a maximum €250 for expenses in respect of a court appearance. The 2026 amending regulations, S.I. No. 271/2026, concern eligibility and experience requirements. Section 32(9) allows the court to decide who pays and in what proportions; an equal division is not mandatory.

For welfare expert reports within their scope, the Judicial Guidelines provide for an early estimate and notification if it is likely to be exceeded. Updates and court attendance may add further costs. The party calling the expert initially bears the attendance cost, subject to agreement or a different court direction (para. 4.5 and paras. 8.8–8.16).

My concern is that a parent may afford a contribution towards the report but struggle to fund the attendance needed to challenge it. A fair opportunity to test evidence must be practical as well as theoretical.

Legal aid does not automatically cover every expert expense. The Legal Aid Board requires prior approval for reports and witness attendance and states that expenditure must be approved in writing in advance. The court’s allocation of payment and the Board’s funding approval are separate matters. Legal-aid status does not automatically transfer the entire bill to the other parent.

Funding should be clarified early. Genuine inability to pay should be investigated rather than automatically treated as obstruction.

Allegations are not findings

Paragraph 8.10 of the Judicial Guidelines addresses hearsay directly. Including documents or interview accounts in a report does not automatically make their contents legally admissible proof. Where their truth is challenged, the party relying on them must establish them under the applicable rules of evidence. The court remains the fact-finder.

A report should distinguish personal observations, allegations, second-hand accounts and established facts. “The mother reported that the child said…” is different from “The child told me…”. Recording an allegation does not automatically establish that the alleged event occurred. Its admissibility and evidential weight remain matters for the court.

In my view, material competing accounts should be accurately attributed, fairly represented and identified as disputed, with the professional basis for conclusions explained. Selective quotation can give one account greater prominence or apparent credibility. Fairness does not require comparable amounts of verbatim quotation; identical word counts or reproduction of every comment from both parents.

An expert should identify disputed assumptions and, where possible, explain how recommendations might change if the court accepts another account. A child’s expressed fear should be taken seriously without automatically treating every alleged explanation for it as proven.

Relevant safeguarding history must be addressed

In my view, a welfare assessment must address reliable evidence relevant to a child’s safety, including any verified history of serious sexual or violent offending where material to the assessment. A past conviction does not automatically determine present parenting capacity, and rehabilitation should neither be presumed nor disregarded. The report should explain how relevant history and evidence of rehabilitation have been considered, what reliable evidence informs an individualised assessment of present risk and whether further specialist assessment is required.

Information supplied by either parent should receive the same standard of scrutiny. Giving prominence to one account while leaving significant safeguarding information unanswered risks providing an incomplete basis for decisions about the child.

Safeguarding the integrity of the process

Repeated assessments, selective information and unexplained costs can undermine the process. Necessary safeguarding inquiries must nevertheless be distinguished from tactical behaviour.

In my opinion, clear instructions, transparent fees, appropriate expertise and effective scrutiny are essential. Court appointment should not place an expert’s work beyond challenge.

A different way of hearing children

At a recent Family Law Conference, I learned about Childhood Matters’ Children’s Court Advocate Pilot Service, planned for Clonmel and Waterford. The presentation described a free, Department-funded service to help children understand proceedings, express their views and have those views accurately conveyed to the court, with opportunities for feedback. An independent evaluation by the University of Limerick has also been announced.

The pilot concerns the child’s voice under section 32(1)(b). It will not replace a welfare assessment under section 32(1)(a), where professional analysis of the child’s needs or proposed arrangements is required. In my view, this is a welcome development whose evaluation should examine children’s participation and financial barriers. It is a local pilot, not a nationwide service.

The question remains whether children can speak safely, whether their own words reach the court and whether cost or flawed procedures prevent proper consideration. A report is a means of assisting that process. Its presence in the file is not, by itself, evidence that we have heard the child.