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

• Jurisdiction: Ireland
• Judge: Mr. Justice John Hedigan
• Judgment Date: 16 April 2008
• Neutral Citation: [2008] IEHC 96
• Court: High Court
• Date: 16 April 2008

[2008] IEHC 96

THE HIGH COURT

[No. 26M/2007]

McD (J) v L (P) & M (B)

BETWEEN

J. McD

APPLICANT

AND

P.L. and B.M.

RESPONDENTS

GUARDIANSHIP OF INFANTS ACT 1964 S6A

FAMILY LAW ACT 1995 S47

ZAPPONE & GILLIGAN v REVENUE COMMISSIONERS & ORS UNREP DUNNE 14.12.2006 2006/59/12536 2006 IEHC 404

D (L) v D (T) UNREP SUPREME 9.11.1998 2000/18/7053

W (RESIDENCE), RE 1999 2 FLR 390

SAFFRON IT'S A FAMILY AFFAIR - COMPLETE LESBIAN PARENTING BOOK 2002 18 TO 19

PATRICK, RE 2002 FAM CA 193

CONSTITUTION ART 40

G v BORD UCHTALA 1980 IR 32

STATUS OF CHILDREN ACT 1987 S12

K(J) v W(B) 1990 2 IR 437

O'R (W) v H (E) 1996 2 IR 248 1996/14/4316

UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD 1990 ART 9(3)

CONSTITUTION ART 41

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2

T (G) v O (KA) UNREP MCKECHNIE 10.9.2007 2007 IEHC 326

HANDYSIDE v UK 1979-1980 1 EHRR 737

MARCKX v BELGIUM 1980 2 EHRR 330

KEEGAN v IRELAND 1994 18 EHRR 342

X Y & Z v UK 1997 24 EHRR 143

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

GUARDIANSHIP OF INFANTS ACT 1964 S3

GUARDIANSHIP OF INFANTS ACT 1964 S11(4)

STATUS OF CHILDREN ACT 1997

GUARDIANSHIP OF INFANTS ACT 1964 S11(d)

CHILDREN ACT 1997

M v Netherlands 1993 74 D & R 120

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5

FAMILY LAW

Guardianship

Access - Meaning of family - Same sex couple conceived child by artificial insemination - Enforceability of written "sperm donor agreement" governing status, rights and duties of each party regarding infant - Rights of unmarried biological father - Rights of natural mother - De facto family - Welfare of infant paramount - Weight to be attached to report of court appointed assessor - Status of European Convention on Human Rights - Whether same sex de facto family protected by article 8 - Re W (Residence) [1999] 2 FLR 390 considered; G v An Bord Uchtala [1980] IR 32 followed - Guardianship of Infants Act 1964 (No 7), s 6A - Family Law Act 1995 (No 26), s 47 - European Convention on Human Rights Act 2003 (No 20), ss 2, 3, 4 and 5 - European Convention on Human Rights and Fundamental Freedoms, articles 1, 8, 13 and 35 - Guardianship and access refused (2007/26M - Hedigan J - 16/4/2008) [2008] IEHC 96

McD(J) v L(P) & M(B)

1 Mr. Justice John Hedigan delivered the 16th day of April, 2008.

2 The application herein is brought under s. 6(a) of the Guardianship of Infants Act 1964, by the applicant, whom I shall refer to as "A.", for an order appointing him as guardian of a male infant whom I shall refer to as "D.". The infant was born on 2nd May, 2006 and is the child of the first named respondent whom I shall refer to as "B". The infant D. was conceived by B. as a result of a sperm donation by A. The second named respondent, whom I shall refer to as "C", is the female partner of B. In addition, under s. 11(4) of the Guardianship of Infants Act, A. seeks an order for a right of access to D.

The Parties

3 A. is a single gay man aged 41. Following qualification he worked in the United States for ten years. He returned to Ireland and has worked here since.

4 B. is 41 years of age. She was born and raised in Australia and is an Australian national. She attended university in Sydney and after she qualified worked there for eighteen months, did research for a year and then travelled to the U.K. In 1995 she met her partner C. with whom she lived for eight years before moving to Ireland.

5 C. was born in Ireland and is an Irish national. When she was a year old she moved with her family to England where she was raised. She attended Leeds University and after qualifying in her chosen profession worked in Belfast and London before moving back to Ireland where she is now the holder of a permanent post.

6 B. and C. are in a long term single sex partnership since 1995 formally solemnized by a Civil Union in the U.K. in 2006.

The background.

7 These proceedings were commenced by an ex parte application made by A. on 22 ^nd March, 2007, in which he was granted an interim order by Abbott J. restraining B. and C. from removing D. from the jurisdiction of the High Court and authorising the Gardaí, if necessary, to prevent his removal.

8 The matter continued on the following day before Abbott J. At the end of that hearing an order was made allowing B. and C. to take D. out of the jurisdiction for the purpose of a vacation in Australia from Sunday 25 ^th March, 2007 returning to the jurisdiction on or before midnight on 9 ^th May, 2007. The Court further ordered that thereafter D. not be removed from the jurisdiction without leave of the Court, pending determination of these proceedings, that a report be prepared pursuant to s. 47 of the Family Law Act 1995 and certain other ancillary matters. Section 47 of this Act provides as follows:-

9 2 "1. In proceedings to which this section applies, the Court may, of its own motion or on application to it in that behalf by a party to the proceedings, by order give such directions as it thinks proper for the purpose of procuring a report in writing on any question affecting the welfare of a party to the proceedings or any other person to whom they relate from-

10 (1) Any other person specified in the order

11 (2) In deciding whether or not to make an order under subsection (1), the court shall have regard to any submission made 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.

12 (3) A copy of a report under subsection (1) shall be given to the parties to the proceedings concerned and (if he or she is not a party to the proceedings) to the person to whom it relates and may be received in evidence in the proceedings".

13 The proceedings were adjourned to 30 ^th March for the purpose of nominating an assessor to prepare the s. 47 report.

14 Following submissions by both sides, the Court refused a stay pending an appeal of that part of the order directing a s. 47 report. The Court proceeded to appoint Dr. Gerard Byrne as assessor.

15 The matter subsequently was appealed to the Supreme Court on 27 ^th April, 2007. The respondents sought a stay on the order directing a s. 47 report. The Supreme Court also considered the issue of the injunction, restraining the removal of D. from the State save for the six week period ending on 9 ^th May, 2007. It was informed that it was the hope of B. and C. to relocate to Australia until June, 2008. The Supreme Court, by a majority of 2 to 1, dismissed the appeal and affirmed the interlocutory orders of the High Court in respect both of the travel injunction and the order for a s. 47 assessment. It remitted the matter to the High Court so that the matter might proceed.

16 On 30 ^th July, the matter next came before the High Court, (Sheehan J.) by way of an application for interim access pending the full hearing. Following a hearing in which A. offered himself for cross-examination, and Dr. Brendan Doody, a Consultant Psychiatrist and Child Psychiatry expert, also gave evidence, the Court ordered interim access to D. for A. on Saturday, 25 ^th August and Saturday, 15 ^th September for periods of one and a half hours each, in the presence of either or both B. and C. in their home or some other venue convenient to their home. This access took place without incident on the said dates.

17 The case came before me for hearing on 2 ^nd October and continued for 14 days concluding on 27 ^th November, a date set aside for submissions. In the course of the hearing I heard evidence from A., B. and C. I further heard Dr. Gerard Byrne who also submitted his report as assessor appointed by the High Court pursuant to s. 47 of the Family Law Act 1995.

18 I also heard evidence from Dr. Antoinette D'Alton, a Consultant Child Psychiatrist and received a copy of her report herein dated 28 ^th September, 2007. Dr. D'Alton was called by A. and gave evidence as his expert witness. I further heard Ms. M. B., a friend of the parties, Ms. F.L., Mr. P.W. and the mother of A. All these last were called on behalf of A. I further heard a Dr. J. A. and Dr. P. B., friends of B. and C. who were called as witnesses by them.

19 As a result of hearing these witnesses, together with reading the various affidavits submitted in these proceedings to date, together with the s. 47 report submitted to the Court and the report of Dr. D'Alton, the factual background to this case appeared as follows:

20 The respondents who have been in a long term relationship since 1995 and who made a Civil Union in the UK, live openly as a single sex couple. They decided that they wished to have a child who would be a part of what they consider to be their own family unit. To this end, over an extended period of time, they considered this course of action with some care. They consulted with friends, including some male friends whom they asked to consider being a sperm donor to enable B. to conceive. Eventually they entered into an arrangement with a male friend, J. C., who was a gay man living in Amsterdam. As a result of their considerations on the matter and after some discussion with him, they drew up an agreement with J.C. as follows:-

"Agreement on Sperm Donation by J.C. to P. L./B.M."

21 P. and B. have lived together as a couple for over 7 years and decided that they would like to have a child. J. is a long-term friend and has agreed to act as a sperm donor. This arrangement was agreed upon in preference to an anonymous sperm donation (as it would be in the interest of a child to have knowledge of their biological father).

22 The child will know that J. is his/her biological father. The child will be encouraged to call him (by his Christian name.)

23 Birth Certificate:

24 J. doesn't mind if his name is included or not on the birth certificate, and is...