IEHC 98 — IEHC 98 — High Court

THE HIGH COURT [2026] IEHC 98 Record No.: 2025/225

IN THE MATTER OF AN APPLICATION FOR ACCESS PURSUANT TO SECTION 11B OF THE GUARIDANSHIP OF INFANTS ACT, 1964 (AS AMENDED)

BETWEEN:- A.C. APPLICANT

-AND-

D.C.

RESPONDENT

Judgment of Mr Justice Oisín Quinn delivered on 12 February 2026

I. INTRODUCTION 1. This judgment concerns a discrete legal issue that was raised by the Respondent in the context of an application for interim access by the Applicant. The application for interim access was heard over two days on 10 and 11 February 2026. At the end of the hearing the Court indicated its decision on the legal point and made an order for interim access in favour of the Applicant on a phased basis together with an order for a report to be prepared by an agreed professional pursuant to section 32(1)(a) and (b) of the 1964 Act. This judgment does not set out the full factual background or reasoning that underpinned the decision on interim access, which was given ex tempore at the conclusion of the hearing. Rather, it deals with a specific legal point of principle raised

1 on behalf of the Respondent and sets out the reasoning for the Court’s decision on that issue.

2. The application for interim access was made by notice of motion issued on 16 December 2025 in these proceedings seeking an order for interim access pursuant to section 11B of the Guardianship of Infants Act, 1964.

3. The application arose in circumstances where the Applicant and the Respondent, who are both male, were in a same sex relationship for over ten years. The relationship ended during the summer of 2025. The interim access application was in relation to a child born through surrogacy in 2019. The Respondent is the genetic father of the child. The Applicant is not genetically connected to the child.

4. The Applicant has been without any access to the child since early November, 2025 and issued these proceedings on 8 December, 2025, including a motion seeking, inter alia, interim access to the child.

5. The notice of motion also sought directions pursuant to section 32(1) of the 1964 Act in relation to obtaining an expert report on the child. In that context, the Court was told that, shortly before the motion was due to commence, the parties had agreed that the Court could make an order by agreement of the parties pursuant to section 32(1)(a) and (b) of the 1964 Act directing the procurement of a report from an agreed professional on both the welfare of the child, per subsection (1)(a), and to “determine and convey the child’s views”, per subsection (1)(b). The parties explained that this report could be expected in a matter of months.

6. Then, at the commencement of the motion, Counsel for the Respondent raised a preliminary legal issue. She submitted that the Court was precluded from making any interim order for access in circumstances, where in particular, the Court did not have the benefit of a professional report which would outline the “views of the child”. According to this submission, section 11B of the 1964 Act should be read as meaning that it was a mandatory requirement to have evidence from a professional determining and conveying the “views of the child” before any order for interim access under section 11B could be contemplated. Counsel submitted that, by virtue of the Supreme Court 2 decision in BU v BE [2010] IESC 38, once a child was at least six years of age, then, combined with the professional assessment being planned, this was sufficient for this Court to have to await that professional assessment before making any decision on interim access.

7. As Counsel for the Applicant was not aware that this legal submission was to be made on behalf of the Respondent, I deferred ruling on the point until after I had heard the evidence without prejudice to the point. This approach facilitated Counsel for the Applicant having time to consider the legal position.

8. The evidence consisted of affidavits from both parties and the oral evidence given by both parties who were then each cross-examined.

9. At the conclusion of the evidence I then heard further submissions and a reply from both Counsel on this legal point.

II. BACKGROUND 10. The Applicant claims to have been in a co-habiting relationship with the Respondent from some time in 2014 until the summer of 2025 when the relationship between the parties ended.

11. The parties are both male and were in a same sex relationship. In 2019 they become engaged but they never married. They had a child in a foreign jurisdiction using a surrogate. The Respondent was the sperm donor. The child (“Z”) was born in 2019 and is currently over six years of age. Z suffers from some developmental issues, including autism.

12. The Respondent enjoys a very successful career in his profession. The Applicant has recently achieved a qualification for a new career. The Applicant says that essentially he was the “stay at home Dad” in the context of their family. The Respondent on occasion is required to travel abroad as part of his work. In addition, in recent years the Respondent has suffered some significant bouts of ill health that have required extensive periods of hospitalisation. The Applicant says that he was accordingly heavily involved in the day to day caring for and rearing of Z. He would regularly bring 3 Z to school and to Z’s after school activities and to Z’s speech therapist and was often involved in every aspect of Z’s daily care including outings and Z’s bedtime routine. The Respondent was also, subject to periods of travel due to his career and the periods of hospitalisation, heavily involved in the day to day care of Z and also took great care to ensure that Z had received assessments in relation to her condition and appropriate therapies and supports.

13. The relationship between the parties broke down permanently in the summer of 2025 and they have not lived together since. After the relationship ended, the Applicant (whose resources are modest) moved back in with his parents who live some distance away from the home where the parties and Z had lived together. The Respondent (who has substantial resources by virtue of his successful career) continued to live in the home (which he owned) with Z.

14. Following their separation, the parties settled somewhat in to a routine by Autumn 2025 whereby the Applicant would collect Z from school two afternoons a week and bring Z to Z’s activities and then back to the home they had shared. Sometimes they would all share food together. Then, every second weekend, the Applicant would bring Z for the weekend to his parents’ family home, where Z would stay with the Applicant and, from the Applicant’s perspective, enjoy the company of the Applicant’s parents (who he said had grown very attached to Z and saw themselves as Z’s grandparents) and the Applicant’s wider family including nieces and nephews who saw Z as their cousin and who, he said, Z saw as Z’s cousins. In facilitating this, the Respondent had been both thoughtful and keen to do what was in Z’s best interests in this regard.

15. However, what appears to have been a cordial, if perhaps fragile, arrangement between the parties took a decided turn for the worst in early November 2025. There was a text exchange and then a phone call between the parties. The contents and nature of this call are disputed. Undoubtedly words were said which, certainly, the Applicant regrets. The Applicant explained he was extremely hurt and upset. He had just learned that the Respondent was in a new relationship. There was a disputed reference to images or videos (the “private material”). In any event, by the next day the Respondent had obtained an ex parte order from the High Court in relation to the private material. There are separate proceedings between the parties about this with very significantly disputed 4 matters set out by both sides in several affidavits. However, one way or another, the Respondent decided at that point that the Applicant should not have further access to Z. There is no doubt that the Respondent was genuinely upset and concerned after the disputed phone call.

16. The Applicant in his evidence explained how much he cared for and loved Z and was heartbroken and distressed at being deprived of her company since early November, 2025. He also stated that, as far as he was concerned, Z was very likely to be missing him. Z was very young and they had spent so much time together. By virtue of Z’s developmental needs he was especially in tune with Z and was aware of Z’s particular difficulties with many ordinary aspects of life such as dressing, going to the bathroom, being around people and being in any loud or unfamiliar environments. He explained that Z called him “Dada” and Z called the Respondent “Daddy”.

17. The Respondent’s position was that the Applicant was not suitable to be around Z. He made a number of allegations about the behaviour of the Applicant, including allegations of violence, which were disputed. From the Applicant’s point of view, he contended that such physical alterations that had arisen involved him defending himself. As far as the Respondent was concerned the Applicant had made a threat to “destroy” him by the release of the private material. From the Respondent’s point of view, it was therefore necessary with a view to protecting both Z and himself “to cease all contact” with the Applicant. The Respondent stated in his affidavit that he believed that the Applicant’s involvement in Z’s life “will create uncertainty, instability, and poses a serious risk to Z’s health and welfare”.

III. SUBMISSIONS (i) Submissions on behalf of the Respondent 18. Counsel for the Respondent, explained that this legal point had not yet arisen for consideration by the High Court. The point arose by virtue of the Applicant having to seek interim access through section 11B of the 1964 Act. This provision was the key, she submitted, and it created additional hurdles that a “parent” would not have to surmount in a more routine access application.

5 19. Counsel submitted that, in addition, there was a constitutional dimension. Article 42A.4.2 provides that:-

“2° Provision shall be made by law for securing, as far as practicable, that in all proceedings referred to in subsection 1° of this section in respect of any child who is capable of forming his or her own views, the views of the child shall be ascertained and given due weight having regard to the age and maturity of the child.”

20. In addition, Counsel submitted that since the Applicant was neither a parent nor a guardian, then the Supreme Court decision in In the matter of JJ [2022] 3 IR 1 (“JJ”) was relevant. Counsel pointed out that while JJ was a very different case (dealing with a catastrophically injured child and a wardship application by a hospital) it meant, it was submitted, that the views of a person who is a parent and guardian (such as the Respondent) are to be preferred over someone (such as the Applicant) who is neither a parent nor a guardian. The “Constitution prefers parents to third parties”; see para. 136, of JJ where the majority judgment of O’Donnell, Dunne, O’Malley and Baker JJ. refers back approvingly to the judgment of Hardiman J. in N v HSE [2006] 4 IR 374.

21. In addition, Counsel drew attention to the judgment of McKechnie J. in JJ which also refers back to N v. HSE. At para 358, McKechnie J. states as follows:-

“As Keane C.J. said in North Western Health Board v. H.W.[2001] 3 I.R. 622 at p. 687, the love of parents for their children is “the purest and most protective” of all: quite clearly, there is no other relationship where such love is as it is from parent to child, unconditional from birth to death. Although in N. v. Health Service Executive[2006] IESC 60, [2006] 4 I.R. 374, the parents were married, nonetheless what Hardiman J. said, at p. 502, must, for the reasons inherent in his statement, equally apply in the instant situation: “97 … Both according to the natural order, and according to the constitutional order, the rights and duties necessary for those purposes [to nurture and education] are vested in the child's parents … it is the experience of mankind over millennia that they are very generally found in natural parents … This bond

6 is greatly valued by parents and children alike, and by natural siblings in respect of their shared parentage.” In my view, that unit must be regarded as the most appropriate forum within which the relevant provisions of the Constitution can find expression.”

22. According to this submission, as the Applicant was not a “natural parent” his perspective counted for less than that of the Respondent.

23. It was then submitted that the wording of section 11B of the 1964 Act meant that, before the Court could grant someone like the Applicant access, it had to have evidence of, inter alia, the “views of the child”, per section 11B(3)(d). As the parties had agreed just before the motion hearing began that the Court could direct a professional report to obtain, inter alia, the “views of the child”, it followed that in this case the Court had to await that report.

(ii) Submissions on behalf of the Applicant 24. Counsel for the Applicant submitted that cases such as JJ and other cases dealing with the Hague Convention were distinguishable from the situation here, which was an application for interim access for a person who had been in the position of a parent from the child’s perspective.

25. He referred the Court to KR v NP [2024] IEHC 475 Jackson J. and PM v EM [2020] IEHC 700, Jordan J. as examples of how to approach the problem. In KR v NP Jackson J. methodically considers each of the factors set out in section 31 and in PM v EM at para. 68 Jordan J. has this to observe about the “child’s voice”:-

“A child's voice, when the child in question is old enough and mature enough and capable of forming his or her own views is important in properly informing the court before reaching a determination on what orders may or may not be in the best interests of the welfare of the child. The time at which the child’s voice is heard, the manner in which it is heard and the circumstances in which it is heard will depend on each individual case and on the immediate issue presented for determination by the court.”

7 26. Next, Counsel submitted that the Applicant’s submission could not be correct as in a case, for example of a one year old, where the child could not express a view then the Court could never make an order for access. The provision had to be read in context and allowing for the practicalities of the situation. This meant looking at section 3 and section 31 in particular. Section 31(2)(b) for example indicated some type of modification to the situation (section 31(2)(b) provides that the Court shall, in determining what is in the best interests of the child have regard to “the views of the child concerned that are ascertainable (whether in accordance with section 32 or otherwise)”.

27. Counsel also pointed out that the Court is not in any event bound by the views of the expert as to what the child’s view is.

28. Finally, it was submitted that the Court in any event had evidence as to the views of the child as both parties had described what they believed the child’s views to be.

IV. RELEVANT LAW (i) Principles applicable to a question of Statutory Interpretation 29. As a general starting point it is clear that the correct approach to a question of statutory interpretation is now best set out by the Supreme Court in the judgment of Murray J. in Heather Hill v An Bord Pleanála [2022] IESC 43 at para.s 105 to 116 in particular.

30. In summary, following on from important cases such as Bookfinders Ltd. The Revenue Commissioners [2020] IESC 60 (where O’Donnell J. (as then was) emphasises that the task of statutory interpretation is the ascertainment of meaning and that some degree of uncertainty is almost always inevitable) the analysis of Murray J. in Heather Hill indicates that to a certain extent the literal and purposive approaches are no longer “hermetically sealed”. Murray J. then identifies a number of propositions from para.s 113-116 which emphasise that “the words of a statute are given primacy” and that what “the court is concerned to do when interpreting a statute is to ascertain the legal effect attributed to the legislation by a set of rules and presumptions the common law (and latterly statute) has developed for that purpose”.

8 31. To that end, the plain meaning of the words is a good starting point and then bearing in mind that “the Oireachtas usually enacts a composite statute, not a collection of disassociated provisions, and it does so in a pre-existing context and for a purpose. The best guide to that purpose, for this very reason, is the language of the statute read as a whole, but sometimes that necessarily falls to be understood and informed by reliable and identifiable background information of the kind described by McKechnie J. in Brown.” Murray J. then concludes this element of his judgment by stressing that “the ‘context’ that is deployed to that end and ‘purpose’ so identified must be clear and specific and, where wielded to displace the apparently clear language of a provision, must be decisively probative of an alternative construction that is itself capable of being accommodated within the statutory language.”

32. Murray J. restates at para 106 of Heather Hill the essential points made by McKecknie J. in Brown as follows:-

“(i) The first and most important port of call is the words of the statute itself, those words being given their ordinary and natural meaning (at paras. 92 and 93).

(ii) However, those words must be viewed in context; what this means will depend on the statute and the circumstances, but may include ‘the immediate context of the sentence within which the words are used; the other subsections of the provision in question; other sections within the relevant Part of the Act; the Act as a whole; any legislative antecedents to the statute/the legislative history of the Act, including … LRC or other reports; and perhaps … the mischief which the Act sought to remedy’ (at para. 94).

(iii) In construing those words in that context, the court will be guided by the various canons, maxims, principles and rules of interpretation all of which will assist in elucidating the meaning to be attributed to the language (see para. 92).

(iv) If that exercise in interpreting the words (and this includes interpreting them in the light of that context) yields ambiguity, then the court will seek to discern the intended object of the Act and the reasons the statute was enacted (at para. 95).”

33. Murray J. then states at para. 108 that:-

9 “It is also to be noted that while McKechnie J. envisaged here two stages to an inquiry – words in context and (if there remained ambiguity), purpose – it is now clear that these approaches are properly viewed as part of a single continuum rather than as separated fields to be filled in, the second only arising for consideration if the first is inconclusive. To that extent I think that the Attorney General is correct when he submits that the effect of these decisions – and in particular of Dunnes Stores and Bookfinders – is that the literal and purposive approaches to statutory interpretation are not hermetically sealed. Indeed McKechnie J. later suggested as much in Brown (at para. 95) (and see more recently O’Sullivan v. Ireland [2019] IESC 33, [2020] 1 IR 413, 443 per Charlton J.) and Dunnes Stores (‘subject matter .. and the object in view … will inform the meaning of the words, phrases or provisions in question’).”

34. In Power v CJSC Indigo Tajikistan & Others [2025] IESC 55, Woulfe J. helpfully reiterates the principles that are set out in Heather Hill at para. 100:-

“100. The principles governing statutory interpretation have been recently restated by this Court in Heather Hill Management Company CLG v. An Bord Pleanála [2022] 2 ILRM 313 (“ Heather Hill”), and these principles would apply equally to the interpretation of secondary legislation such as the Rules of the Superior Courts. In his judgment for the Court, Murray J. cited with approval the judgment of McKechnie J. in The People (DPP) v. Brown [2019] 2 I.R. 1, and he summarised the essential points which McKechnie J. had made as follows (at para. 106)”, which is set out above.

(ii) Relevant Statutory Provisions 35. Section 11B of the Guardianship of Infants Act, 1964 was, inter alia, amended in an important way by the Children and Family Relationships Act 2015. This 2015 Act followed on from the amendment to the Constitution in November 2012 that introduced Article 42A (referred to above). The 2015 Act introduced a specific entitlement into the 1964 Act for a person who has “formerly resided” with a child to apply for access. There was no dispute that the Applicant fell into this category of potential applicant for access.

36. Section 11B as amended provides as follows:-

11B.—(1) Any person who— (a) is a relative of a child, or, (b) is a person with whom the child resides or has formerly resided,

10 and to whom section 11 does not apply may apply to the court for an order giving that person access to the child on such terms and conditions as the court may order.

(2) [Deleted by section 55(b) of the Children and Family Relationships Act 2015]

(3) In deciding whether to make an order under subsection (1), the court shall have regard to all the circumstances, including in particular— (a) the applicant’s connection with the child, (b) the risk, if any, of the order disrupting the child's life to the extent that the child would be harmed by it, (c) the wishes of the child’s guardians, (d) the views of the child, and (e) whether it is necessary to make the order to facilitate the access of the person to the child.

(4) In this section, a relative of a child who is the subject of an adoption order includes— (a) a relative of the child’s adoptive parents, (b) the adoptive parents of the child’s parents, or (c) a relative of the adoptive parents of the child’s parents.

37. As the jurisprudence above makes clear, any question of statutory interpretation requires the words of the relevant provision to be examined in their statutory context. Section 3 of the 1964 Act is also therefore relevant as it emphasises that the “paramount consideration” for the Court in any access application is the “best interests of the child”. Section 3 provides as follows:

3.— (1) Where, in any proceedings before any court, the— (a) guardianship, custody or upbringing of, or access to, a child, or (b) administration of any property belonging to or held on trust for a child or the application of the income thereof, is in question, the court, in deciding that question, shall regard the best interests of the child as the paramount consideration. (2) In proceedings to which subsection (1) applies, the court shall determine the best interests of the child concerned in accordance with Part V.

38. This provision in turn requires the Court to refer to Part V of the 1964 Act, which is entitled “Best Interests of Child” and it contains two important provisions, namely sections 31 and 32. These provide as follows:-

11 “Determination by court of best interests of child 31. (1) In determining for the purposes of this Act what is in the best interests of a child, the court shall have regard to all of the factors or circumstances that it regards as relevant to the child concerned and his or her family. (2) The factors and circumstances referred to in subsection (1) include: (a) the benefit to the child of having a meaningful relationship with each of his or her parents and with the other relatives and persons who are involved in the child’s upbringing and, except where such contact is not in the child’s best interests, of having sufficient contact with them to maintain such relationships; (b) the views of the child concerned that are ascertainable (whether in accordance with section 32 or otherwise); (c) the physical, psychological and emotional needs of the child concerned, taking into consideration the child’s age and stage of development and the likely effect on him or her of any change of circumstances; (d) the history of the child’s upbringing and care, including the nature of the relationship between the child and each of his or her parents and the other relatives and persons referred to in paragraph (a), and the desirability of preserving and strengthening such relationships; (e) the child’s religious, spiritual, cultural and linguistic upbringing and needs; (f) the child’s social, intellectual and educational upbringing and needs; (g) the child’s age and any special characteristics; (h) any harm which the child has suffered or is at risk of suffering, including harm as a result of household violence, and the protection of the child’s safety and psychological well-being; (i) where applicable, proposals made for the child’s custody, care, development and upbringing and for access to and contact with the child, having regard to the desirability of the parents or guardians of the child agreeing to such proposals and co-operating with each other in relation to them; (j) the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent, and to maintain and foster relationships between the child and his or her relatives; (k) the capacity of each person in respect of whom an application is made under this Act— (i) to care for and meet the needs of the child, (ii) to communicate and co-operate on issues relating to the child, and (iii) to exercise the relevant powers, responsibilities and entitlements to which the application relates. (3) For the purposes of subsection (2)(h), the court shall have regard to household violence that has occurred or is likely to occur in the household of the child, or a household in which the child has been or is likely to be present, including the impact or likely impact of such violence on: (a) the safety of the child and other members of the household concerned;

12 (b) the child’s personal well-being, including the child’s psychological and emotional well-being; (c) the victim of such violence; (d) the capacity of the perpetrator of the violence to properly care for the child and the risk, or likely risk, that the perpetrator poses to the child. (4) For the purposes of this section, a parent’s conduct may be considered to the extent that it is relevant to the child’s welfare and best interests only. (5) In any proceedings to which section 3(1)(a) applies, the court shall have regard to the general principle that unreasonable delay in determining the proceedings may be contrary to the best interests of the child. (6) In obtaining the ascertainable views of a child for the purposes of subsection (2)(b), the court— (a) shall facilitate the free expression by the child of those views and, in particular, shall endeavour to ensure that any views so expressed by the child are not expressed as a result of undue influence, and (b) may make an order under section 32. (7) In this section "household violence" includes behaviour by a parent or guardian or parent or household member, and includes sexual abuse or causing a child or a parent or other household member to fear for his or her safety or that of another household member.” (underlined for emphasis).

39. Section 32 provides:-

32. (1) In proceedings to which section 3(1)(a) applies, the court may, by order, do either or both of the following: (a) give such directions as it thinks proper for the purpose of procuring from an expert a report in writing on any question affecting the welfare of the child; or (b) appoint an expert to determine and convey the child’s views. (2) An order under subsection (1) may be made by the court of its own motion or on application to it in that behalf by a party to the proceedings and, in deciding whether to make an order, the court shall have regard to any views expressed to it in relation to the matter by or on behalf of a party to the proceedings concerned or any other person to whom they relate. (3) Without prejudice to the generality of subsection (1), the court, in deciding whether to make an order under that subsection, shall, in particular, have regard to the following: (a) the age and maturity of the child; (b) the nature of the issues in dispute in the proceedings; (c) any previous report under subsection (1)(a) on a question affecting the welfare of the child; (d) the best interests of the child;

13 (e) whether the making of the order will assist the expression by the child of his or her views in the proceedings; (f) the views expressed by a person referred to in subsection (2). (4) A copy of a report under subsection (1)(a) may be provided in evidence in the proceedings and shall be given to— (a) the parties to the proceedings concerned, and (b) subject to subsection (5), if he or she is not a party to the proceedings, to the child concerned. (5) In determining whether a report obtained under subsection (1)(a) should be furnished to the child to whom it relates, the court shall have regard to the following: (a) the age and maturity of the child and the capacity of the child to understand the report; (b) the impact on the child of reading the report and the effect it may have on his or her relationship with his or her parents or guardians; (c) the best interests of the child; (d) whether the best interests of the child would be better served by the furnishing of the report to the parent, guardian, next friend of the child or an expert appointed under subsection (1)(b), rather than to the child himself or herself. (6) An expert appointed under subsection (1)(b) shall— (a) ascertain the maturity of the child, (b) where requested by the court, ascertain whether or not the child is capable of forming his or her views on the matters that are the subject of the proceedings, and report to the court accordingly, (c) where paragraph (b) does not apply, or where paragraph (b) applies and the expert ascertains that the child is capable of forming his or her own views on the matters that are the subject of the proceedings— (i) ascertain the views of the child either generally or on any specific questions on which the court may seek the child’s views, and (ii) furnish to the court a report, which shall put before the court any views expressed by the child in relation to the matters to which the proceedings relate. (7) The court or a party to proceedings to which this section applies may call as a witness in the proceedings an expert appointed under subsection (1). (8) Where, in proceedings referred to in subsection (1), the court has made an order under paragraph (a) or (b) of subsection (1), nothing in this section shall prevent the court from— (a) making a further order under either or both of those paragraphs, or (b) in making such a further order, appointing the same or a different expert to perform the function concerned. (9) The fees and expenses of an expert appointed under subsection (1) shall be paid by such parties to the proceedings concerned and in such proportions, or by such party to the proceedings, as the court may determine.

14 (10) The Minister may, in consultation with the Minister for Children and Youth Affairs, by regulation specify— (a) the qualifications and experience of an expert appointed under this section, and (b) the fees and allowable expenses that may be charged by such an expert. (11) Without prejudice to the generality of subsection (10), regulations under that subsection may provide for: (a) the qualifications, and the minimum level of professional experience, to be held by an expert, (b) the minimum standards that shall apply to the performance by an expert of his or her functions under this section, and (c) such other matters as the Minister considers necessary to ensure that experts are capable of performing their functions under this section.”

V. DECISION 40. I am satisfied that it is an incorrect interpretation of section 11B to contend that it means that a Court cannot make an access order unless there is a professional report before the Court setting out the views of the child.

41. The legislation makes clear that the paramount consideration for the Court has to be the best interests of the child. In this case the Applicant has not seen the child Z for over three months. In the context of the amount of contact prior to that and in the context of the age of the child that is a significant amount of time.

42. In addition, the Court on hearing this application, did have the benefit of the oral evidence, as well as affidavit evidence, from both parties. Each party in their oral evidence set out what they believed was the view of the child. The Court therefore did have before it some evidence of the views of the child.

43. It is a matter for the Court in any case as to how much weight to attach to that evidence. That exercise was done in regard to the decision made by the Court to grant a phased return to access for the Applicant. This judgment does not address that decision as explained above.

44. The decision of the Supreme Court in JJ and the reference back to the dicta of Hardiman in N v HSE are not particularly apposite as the Supreme Court in both of those decisions was concerned with identifying a distinction between the parents of a child on the one

15 hand and third parties, such as doctors, hospitals, social workers, and the HSE on the other. That analysis does not neatly overlay with the factual scenario here. In this case, the Applicant, while not a natural parent, has performed, for a substantial period of the life of the child, the role of a parent. He had been living with the child in a capacity similar to that of a natural parent. He was there for the child's birth and the child being raised and navigating the various milestones of life and in addition has performed the ordinary function of a parent in the context of the day-to-day routine of the child. That is perhaps most succinctly encapsulated by virtue of the fact that the child called the applicant “Dada”.

45. In addition, the Respondent in turn has quite properly and understandably left the child appropriately with the Applicant while he was an impatient for many months on several occasions due to various health issues, and in addition, quite properly gave the Applicant permission to travel on his own with the child at various times when the Respondent was abroad for work, even though the Applicant had not been legally appointed a guardian.

46. In relation to the submission that there is a preliminary requirement that there be a professional report setting out the child's views before an application pursuant to section 11B of the 1964 act can be considered, I am of the view that this is not a correct understanding of the legislative provision.

47. Firstly, according to the Supreme Court in Heather Hill, the provision must be considered in the context of the section as a whole and in the context of the 1964 Act as a whole. In that regard, pursuant to section 3 the paramount consideration is the welfare and interests of the child. In a context where obtaining a report such as this could take several months it could not be in the paramount interests of a child that in practise they could be deprived of access to a person who has been in a quasi-parental role with them without all of the circumstances being considered.

48. Next, the argument of the Respondent precludes the concept that the evidence of the parties themselves can contain reference to the views of the child. In the context of a child who is only six years of age, inevitably the views of the child are likely to be primarily conveyed to the court through adults, who either know or are familiar with 16 the child and/or a professional expert. The words of the provision refer to the “views of the child” and this encompasses in its ordinary meaning, evidence of those views relayed by others such as, in this case, the parties themselves. In this case, the Court has had the benefit of hearing what the parties considered to be the views of the child.

49. In addition and more fundamentally, prior to the event of early November 2025, the Respondent had been willing to allow the Applicant regular access to the child in the period following their separation. This included overnight access and collecting the child from school and bringing the child to various activities. In that context this indicates that prior to the particular triggering event of early November 2025, the Respondent did not consider that the Applicant was a person unsuitable to having access to the child.

50. In addition, the Court has taken into account the context in which this legal argument was raised. The application for interim access issued in mid-December 2025 and was initially listed before the judge assigned to manage the High Court Family Law list on 12 January 2026. The matter was then moved forward with affidavits being exchanged and assigned a hearing date before this court on the 10 February 2026. At no point prior to the commencement of the motion was this legal argument raised. If it had been raised at an earlier point, there may have been some scope to urgently move forward the concept of obtaining a professional report focussed on the views of the child. Article 42A.4.2 refers to laws being enacted that “as far as practicable” ensure that “in all proceedings referred to in subsection 1° of this section in respect of any child who is capable of forming his or her own views, the views of the child shall be ascertained and given due weight having regard to the age and maturity of the child.” This does not envisage an absolutist position, which would preclude the laws allowing a Court to make an interim access order in relation to a child in advance of a professional report being available.

51. Even then it does not seem to me that the 1964 Act precludes a court, considering an interim access application in the absence of such a professional report. That is not what the section 11B provides. The Act requires the court to have regard to that issue. While there was no professional report indicating the “views of the child” the court has had the benefit of each of the parties perspective on that issue. 17 VI. CONCLUSION 52. For the foregoing reasons, the Court does not consider that section 11B of the 1964 Act means that before a court can consider an application for access that there must be a professional report conveying the “views of the child”.

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