J. McD. v P.L. and B.M

JurisdictionIreland
CourtSupreme Court
JudgeDenham J.
Judgment Date19 July 2007
Neutral Citation[2007] IESC 28
Docket Number[S.C.
Date19 July 2007

[2007] IESC 28

THE SUPREME COURT

Denham J.

Fennelly J.

Finnegan J.

[S.C. No: 112/2007]
MCD (J) v L (P) & M (B
In the Matter of the Guardianship of Infants Act, 1964
In the Matter of the Family Law Act, 1995
In the Matter of the Child Abduction and Enforcement of
Custody Orders, 1999

and

In the Matter of H.L., an infant
Between/
J.McD.
Applicant/Respondent

and

P.L. and B.M.
Respondents/Appellants

CHILD ABDUCTION & ENFORCEMENT OF CUSTODY ORDERS ACT 1991

FAMILY LAW ACT 1995 S47

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

GUARDIANSHIP OF INFANTS ACT 1964 S6(a)

S (W) & J (K) v V (W), PROTESTANT ADOPTION SOCIETY & BORD UCHTALA 1990 2 IR 437

PAYNE v PAYNE 2001 1 FLR 473

M, RE 2003 FLR 94

X v Y 2002 GWD 12-344 (SCOTLAND)

PATRICK, RE 2002 28 FAM LR 579

A, RE 2005 1 FLR 639

G v BORD UCHTALA 1980 IR 32

STATUS OF CHILDREN ACT 1987 S12

GUARDIANSHIP OF INFANTS ACT 1964 S3

W (O'R) v E (H) 1996 2 IR 248

POEL v POEL 1970 1 WLR 1469

1

Judgment delivered the 19th day of July, 2007 by Denham J.

2

1. This is an appeal on an interlocutory matter by P.L. and B.M., the respondents/appellants, hereinafter referred to as 'the respondents', from the judgment and order of the High Court (Abbot J.) of the 23rd March, 2007.

3

2. At the heart of this case is an infant, H.L.. J.McD., the applicant/respondent, hereinafter referred to as 'the applicant', is the biological father of the infant, by means of artificial insemination. The respondents, who are both female, underwent a Civil Union Ceremony in England in January, 2006.

4

3. The respondents wished to have a child. After months of consideration and discussion the applicant agreed to have a child with the first named respondent by means of artificial insemination. The baby was conceived and the good news was shared with the applicant's family.

5

4. In September, 2005 it was agreed to formalise the arrangement. There were a number of drafts of an agreement. Finally an agreement was signed on 11th September, 2005. The agreement states that it would be in the best interests of the child to know his biological father and that the child would know that the applicant is his father. It states that the applicant's role will be as a favourite uncle and that he will be welcome to visit the child at times mutually convenient to the parties. It states that in the event of the first named respondent's death that the applicant's contact with the child would continue uninterrupted, and that in addition his opinion would be sought regarding the best guardianship arrangements for the child.

6

5. The infant was born in May, 2006, taking the applicant's first name as his second name. In the following months the parties visited each other regularly, the applicant took the infant for walks in his buggy, and the parties had dinner in each others homes. The applicant provided items to assist with the new arrival. The applicant offered financial assistance for the birthing, but this was declined. The applicant also offered to assist with the child's day to day expenses, but this was declined. The applicant has informed the respondents that he has opened a trust account for the infant, to which he makes monthly lodgements.

7

6. In September, 2006 the respondents' attitude to the applicant and his role with the infant altered. They informed him that the parties had become too close and that a greater distance and formality was required. After this the applicant had only two further contact visits with the infant, one in October, 2006 and one in November, 2006.

8

There has been no substantive hearing as yet in this case, thus the facts have yet to be determined. It was submitted by the applicant that after November, 2006 he was giving the respondents the space they sought.

9

7. On hearing that the respondents were about to embark on a holiday in Australia with the infant, and that they were thinking of relocating there, the applicant brought an action restraining the respondents.

10

8. The applicant sought and obtained an interim order. Subsequently, he obtained an interlocutory order, from which the respondents have appealed. In that interlocutory order the High Court (Abbott J.) ordered:-

11

a "a. The first and second named respondents be at liberty to remove the infant H.L. from the jurisdiction of this Court for the purpose of a vacation in Australia from Sunday 25th March, 2007 returning to the jurisdiction of this Court on or before midnight on the 9th day of May, 2007.

12

b b. On the return of the child to the jurisdiction that his two passports (Irish and Australian) be lodged with the Registrar of the Family Law List High Court by 4 pm on Monday 14th day of May, 2007.

13

c c. On the return of the child to this jurisdiction the applicant, the respondents, their servants and agents, and any persons having notice of the making of the Order, be restrained from thereafter removing the said infant from the jurisdiction of this Court without the leave of this Court pending the determination of these proceedings.

14

d d. Liberty to notify:-

15

i i. the relevant Garda Síochána and Port Authorities, and

16

ii the relevant Northern Irish Police and Port Authorities,

17

iii the Australian Embassy.

18

e e. The applicant be and he is hereby at liberty to amend the Notice of Motion herein dated the 22nd day of March 2007 so as to include therein a claim for interim access to the said infant H.L. - the said amended Notice of Motion to be served on the solicitors for the respondents by the 20th day of April, 2007.

19

f f. The Special Summons herein listed before the Master of this Court on the 18th day of April 2007 be transferred from the Master's List to the Family Law List forthwith.

20

g g. The said Special Summons and this Notice of Motion be listed for mention in the Family Law List on Friday the 18th day of May, 2007."

21

On the 30th March, 2007 the learned High Court judge ordered that a named person be appointed for the purpose of the preparation of a report, pursuant to s.47 of the Family Law Act, 1995, for the court.

22

9. The first named respondent took leave of absence from her employment to become pregnant and take care of the baby. The respondents planned to visit Australia for a year, from March, 2007 to approximately May, 2008. The first named respondent is Australian and she wished to give the infant an opportunity to spend time with her family. Her mother is unwell and unable to visit Ireland. The second named respondent secured temporary employment in Australia, for the planned year away, and they have let their home in Ireland.

23

10. The applicant was informed in March, 2007 of the respondents' plans. On 22nd March, 2007 the applicant instituted proceedings under the Guardianship of Infants Act, 1964 seeking, inter alia, to be appointed guardian of the child and joint custody. He also sought orders pursuant to the Child Abduction and Enforcement of Custody Orders Act, 1991 and Article 8 of the European Convention on Human Rights. This substantive action has not yet been heard by the High Court.

11. Right to apply
24

The applicant has a right to apply to the court. Under s.6A of the Guardianship of Infants Act, 1964, as amended, it is provided:-

25

i "(i) Where the father and mother of an infant have not married each other, the Court may on the application of the father, by order appoint him to be guardian of the infant."

26

In J.K. v. V.W. [1990] 2 I.R. 437 this Court held that:

27

(i) s. 6A of the Act of 1964 gave a natural father the right to apply to be appointed guardian but it neither gave him the right to be guardian nor equated his position at law with regard to the infant with the position of a father married to the mother who is and must remain a guardian.

28

(ii) That the court must regard the welfare of the infant as the first and paramount consideration.

29

(iii) That the natural father did not have a constitutional right or a natural right identified by the Constitution to guardianship of the child and s. 6A of the Act of 1964 did not declare or acknowledge that right although the blood link between the father and the child and the possibility for the infant to have the benefit of the guardianship and society of its father were one of many factors relevant to its welfare which might be viewed by the court.

30

Finlay C.J. stated:

"Section 6A gives a right to the natural father to apply to be appointed guardian. It does not give him a right to be guardian, and it does not equate his position vis-à-vis the infant as a matter of law with the position of a father who is married to the mother of the infant. In the latter instance the father is the guardian of the infant and must remain so, although certain of the powers and rights of a guardian may, in the interests of the welfare of the infant, be taken from him.

The right to apply to be appointed guardian of the infant under s.6A of the Act of 1964 (as inserted by the Act of 1987) is a right to apply pursuant to a statute which specifically provides that the court in deciding upon such application shall regard the welfare of the infant as the first and paramount consideration."

31

However, this appeal does not raise the substantive issues. At issue in this appeal is whether an interlocutory injunction should restrain the infant from leaving the State pending the hearing of the application.

12. Issues
32

In fact there are two issues before this Court:-

33

(a) The injunction restraining the removal of the infant H.L. from the State.

34

(b) The appointment of an assessor pursuant to s.47.

13. Injunction
35

The first issue, therefore, is the interlocutory injunction restraining the removal of the infant H.L. from the State, pending the...

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