J McD v P L

CourtHigh Court
Judgment Date10 December 2009
Docket Number[2007 No. 26 M] [S.C. No. 186 of 2008]
Date10 December 2009

High Court

Supreme Court

[2007 No. 26 M] [S.C. No. 186 of 2008]
J. McD. v. P.L.
J. Mc.D.
P.L. and B.M.,Respondents and The Attorney General, Notice Party

Cases mentioned in this report:-

Re A. FLR[1998] 1 F.L.R. 354.

O.B. v. S. IR[1984] I.R. 316.

Mata Estevez v. Spain (App. 56501/00) (European Court of Human Rights, 10th May, 2001).

G. v. An Bórd Uchtála IRDLTR[1980] I.R. 32; (1979) 113 I.L.T.R. 25.

In the matter of J.H. (An Infant); K.C. v. An Bord UchtálaIRDLRM[1985] I.R. 375; [1985] I.L.R.M. 302.

Handyside v. United KingdomHRC (1979-1980) 1 E.H.R.R. 737.

The Health Amendment Bill 2004 [2005] IESC 7, [2005] 1 I.R. 105; [2005] I.L.R.M. 401.

J.K. v. V.W.IRDLRM [1990] 2 I.R. 437; [1990] I.L.R.M. 121.

Karner v. AustriaHRCFLRUNK (2004) 38 E.H.R.R. 24; [2003] 2 FLR 623; [2004] F.C.R. 563.

Keegan v. Ireland (1994) 18 E.H.H.R. 342.

Kroon v. Netherlands HRC(1994) 19 E.H.R.R. 263.

D.L. v. D.T. (Unreported, Supreme Court, 9th November, 1998).

J.McD. v. F.L. UNKIR[2007] IESC 28, [2008] 1 I.R. 417.

M. v. NetherlandsHRC (App. 16944/90) (Commission Decision, 8th February, 1992) [1993] E.H.R.R. C.D. 38; (1993) D.R. 120.

M. v. Secretary for State for Work and PensionsUNKELRWLRUNK[2006] UKHL 11, [2006] 2 A.C. 91; [2006] 2 W.L.R. 637; [2006] 4 All E.R. 929.

Mahon v. Keena UNKIR[2009] IESC 78, [2010] 1 I.R. 336.

Marckx v. Belgium HRC(1979-1980) 2 E.H.R.R. 330.

Murray v. Ireland IRDLRM[1985] I.R. 532; [1985] I.L.R.M. 542.

N. v. Health Service Executive UNKIR[2006] IESC 60, [2006] 4 I.R. 374.

Re O LaighléisIR [1960] I.R. 93.

W.O'R. v. E.H. (Guardianship) IR[1996] 2 I.R. 248.

Re Patrick (2002) 28 Fam. L.R. 579.

People (D.P.P.) v. J.T. (1988) 3 Frewen 141.

R. (Ullah) v. Special Adjudicator ELRWLRUNK[2004] 2 A.C. 323; [2004] 3 W.L.R. 24; [2004] 3 All E.R. 785.

The State (Nicolaou) v. An Bord Uchtála IRDLTR[1966] I.R. 567; (1968) 102 I.L.T.R. 1.

G.T. v. K.A.O. (Child abduction)UNKIR [2007] IEHC 326, [2008] 3 I.R. 567.

Re W (Residence)FLRUNKUNK [1999] 2 F.L.R. 390; [1999] 3 F.C.R. 274; [1999] Fam. Law 454.

W v. W FLR[1988] 2 F.L.R. 505.

X. v. Y. [2002] G.W.D. 12-344.

X., Y. & Z. v. United KingdomHRCFLRUNK (1997) 24 E.H.R.R. 143; [1997] 2 F.L.R. 892; [1997] 3 F.C.R. 341.

Zappone v. Revenue CommissionersUNKIR [2006] IEHC 404, [2008] 2 I.R. 417.

Family law - Guardianship - Access - Meaning of family - Same sex couple - Child conceived 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 - Welfare of infant paramount - Weight to be attached to report of court appointed assessor - Status of European Convention on Human Rights - Duty of Irish courts - De facto family - Whether same sex de facto family protected by Convention - 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 1950, articles 1, 8, 13 and 35.

Special summons

The facts have been summarised in the headnote and are more fully set out in the judgment of Hedigan J., infra.

By special summons dated the 22nd March, 2007, the applicant instituted proceedings under the Guardianship of Infants Act 1964 seeking, inter alia, his appointment as legal guardian and joint custody of the infant at the centre of the case. On the 23rd March, 2007, the High Court (Abbot J.) granted the applicant an interlocutory injunction restraining the respondents from removing the infant from the jurisdiction, (save for the purpose of a six week holiday) and ordering the respondents to surrender of the child's passports (both Irish and Australian) to the Registrar of the court.

On the 30th March, the High Court (Abbot J.) ordered the appointment, pursuant to s. 47 of the Family Law Act 1995, of a named person for the purposes of assessing the relationship between the applicant and the infant and preparing a report to assist the court in coming to a conclusion regarding the best interests of the infant.

On the 11th April, 2007, the respondents lodged a notice of appeal against both orders of the High Court (Abbot J.). The respondents' appeal was heard by the Supreme Court (Denham, Fennelly and Finnegan JJ.) on the 16th July, 2007 and was dismissed (see [2007] IESC 28, [2008] 1 I.R. 417).

The substantive issues in the case, namely the issues of guardianship and access, came on for hearing before the High Court (Hedigan J,) on the 2nd October, 2007. The court heard evidence and submissions over a fourteen day period ending on the 27th November, 2007.

The respondents were a same sex couple in a long term relationship. The respondents entered into an agreement with the applicant, whereby the applicant agreed to donate sperm with a view to allowing the first respondent to conceive a child. Central to the agreement between the applicant and the respondents was the intention that, while the infant would know the applicant was his/her father and would have contact with the applicant (at the discretion of the respondents), the applicant would have no parental role. The respondents would act as parents to the infant. The applicant would instead occupy the position of a "favourite uncle". Sperm donations were made by the applicant as a result of which the first respondent conceived and gave birth to a male child.

Shortly after the birth of the infant the respondents became concerned that the applicant was behaving more like a father than a "favourite uncle" and intruding into their family life. They informed the applicant that they wanted greater distance and formality. The applicant was asked to visit the infant less often.

Meanwhile, the first respondent became unwell and the respondents decided to spend a year in Australia to be near the first respondent's family.

The applicant brought proceedings seeking to preventing the removal of the infant to Australia and seeking guardianship of and access to the infant. The court ordered that an assessor be appointed pursuant to s. 47 of the Family Law Act 1955 to prepare a report assessing the relationship between the parties in order to assist the court in determining the best interests of the infant.

Held by the High Court (Hedigan J.), in refusing orders of guardianship and access, 1, that, in the absence of grave reasons to the contrary, (which, if present, ought to be set out in writing by the court in its judgment), the court ought to accept the recommendations made in the s. 47 report. A s. 47 report ought be accorded greater weight than a medical expert in childcare proceedings because the expert producing a s. 47 report did so on the instructions of the court rather than on the instructions of either party to the proceedings.

Re W. (Residence)FLR [1999] 2 F.L.R. 390 considered.

2. That a sperm donor agreement might constitute a valid contract but would be enforceable only to the extent that the rights of any child born a result thereof were not prejudiced.

3. That Article 40 of the Constitution afforded a natural mother a right to custody of her child. The court ought to proceed upon the presumption that the mother would act in the best interests of her child and the onus lay heavily upon a person alleging otherwise to satisfy the court that it should intervene in the arrangements she made for the welfare of her child.

  1. G. v. An Bord UchtálaIR [1980] I.R. 32 followed.

4. That a natural father had no right to be appointed guardian of his child. He merely had a right to apply to be appointed guardian, which was not to be equated with a defeasible right to guardianship.

5. That, in determining the application for guardianship of a natural father whose relationship with his child was that of a sperm donor, (rather than a member of a stable family unit), the court must not over emphasise the importance of the blood link. Where factors were present which suggested it would be contrary to the best interests of the child to appoint the father guardian, the biological connection between the father and his child would be of little weight and ought not to be a determining factor.

6. That, in any guardianship application, the paramount consideration ought to be the welfare of the child.

7. That the European Convention on Human Rights Act 2003 incorporated the European Convention on Human Rights into Irish law at a sub-constitutional level. The Act of 2003 required the Irish courts, absent constitutional conflict, to interpret and apply Irish law in a manner consistent with the European Convention.

8. That, where, by reason of constitutional conflict or otherwise, it was impossible to interpret Irish law in a manner consistent with the European Convention on Human Rights the court might grant a declaration of incompatibility. Such a declaration would not affect the legal validity of the provision or rule of law in question. It would be for the legislature rather than the courts to repeal or amend the legislation at issue.

9. That the notion of family within the meaning of article 8 of the European Convention on Human Rights was not confined to the family based on marriage but might encompass other de facto family ties. When deciding whether a relationship amounted to a de factofamily, a number of factors would be relevant including, whether the couple lived together, the length of their relationship, and whether they have demonstrated their commitment to one another by having children or by other means.

X., Y. & Z. v. United Kingdom HRC(1997) 24 E.H.R.R. 143 considered.

10. That where a lesbian couple lived together in a committed relationship of mutual support involving close ties of a personal nature, and where if they were a heterosexual couple they would be regarded as a de facto family, they equally enjoyed the status of de...

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