Dr. Conor O'Mahony:

It does on that last point because it requires the court, if it is not to appoint a guardian ad litem, which would be the public law equivalent of the expert in the private law cases, that is, the person acting on behalf of the child and representing his or her views, first to explain why in open court. It must also stipulate what it is doing instead.

That is crucial because if the court is obliged to state, in open court, how it is going to ascertain the views of the child, it becomes quite difficult for the court to simply not do it. The 2015 Act leaves the door open for that to fall by the wayside if the expert cannot be paid for. There is nothing in the Act about what happens next and it could simply not happen. If the court has to explain those reasons in open court, it becomes much more difficult for a court to let it slip in the manner I am describing. That is important.

The question of how the court assesses whether the child is capable of forming the views is extremely important because that is the gateway to the obligation to hear the child kicking in. All children who are capable of forming views must be heard. Children who are not capable of forming views do not have to be heard. How do we distinguish between those two groups and who distinguishes between them? One judge might take the view that he will bring in the expert to make that assessment in the first instance. Another judge might attempt to make that judgment himself or herself and may or may not have the skills to properly make that assessment. Another judge might simply decide to speak to every child over a certain age and not to speak to children under that age. That is a recipe for inconsistency. It would be good to have some clarity on that assessment. We have this crucial gateway concept of children being capable of forming their own views without clarity as to how we establish which children meet that criteria and which do not.