J McD v P L

• Jurisdiction: Ireland
• Court: High Court
• Judgment Date: 10 December 2009
• Docket Number: [2007 No. 26 M] [S.C. No. 186 of 2008]
• Date: 10 December 2009

J. McD. v. P.L.

J. Mc.D.

Applicant

and

P.L. and B.M.,Respondents and The Attorney General, Notice Party

[2008] IEHC 96, [2009] IESC 81

[2007 No. 26 M] [S.C. No. 186 of 2008]

High Court

Supreme Court

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.

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) [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.

• G. v. An Bord Uchtála [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 (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 facto family and thus the protection of article 8 of the European Convention on Human Rights.

The applicant appealed to the Supreme Court.

Held by the Supreme Court (Murray C.J., Denham, Hardiman, Geoghegan and Fennelly JJ.), in dismissing the applicant's appeal in so far as it related to guardianship and allowing the appeal in so far as it related to access and remitting the case to the High Court, 1, that the first and paramount consideration in any application pursuant to the Guardianship of Infants Act 1964 for guardianship access or custody was the best interests of the child.

2. That the ordinary rules of evidence governing expert reports generally applied equally to expert reports commissioned pursuant to the s. 47 of the Family Law Act 1995. The s. 47 report should not be accorded undue weight. A court was not obliged to accept the views of an expert appointed pursuant to s. 47 nor was it required to specify the reasons for non-acceptance of the views as expressed in the s. 47 report. The court was the ultimate decision maker and it was for the court and the court alone to determine, in accordance with the law, what was in the best interests of the child.

3. That the de facto family was not an institution known to Irish law. Reference made in case law to the de factofamily was merely a shorthand method of referring to the circumstances in which a child lived. For the State to award equal protection to the marital family and the family founded on an extra-marital union would be to disregard the pledge which the State's gave in Article 41.3.1ø to guard with special care the institution of marriage.

4. That the natural father had no natural or constitutional rights to be appointed guardian of his biological child. Even under the Guardianship of Infants Act 1964, his rights were limited to a right to apply for guardianship of his child, which right was not to be equated with a defeasible right to guardianship.

J.K v. V.W. [1990] 2 I.R. 437 and W.O'R. v. E.H. (Guardianship) [1996] 2 I.R. 248considered.

5. That the blood link between a natural non-marital father and his biological child was one of the factors to be considered in a guardianship, custody and/or access application when determining what was in best interests of the child. The weight to be attached this factor would vary according to the circumstances of the case.

6. That the terms of an agreement regarding guardianship, custody and/or access entered into by the biological parents before the birth of the child might be a relevant factor in considering an application under the Act of 1964 in so far as it provided useful information regarding the factual background and context of the case.

7. That the obligations undertaken by a government which had ratified the European Convention on Human Rights arose under international law not national law. Pursuant to Article 29.6 of the Constitution, international agreements formed part of domestic law only in so far as the Oireachtas incorporated them into domestic law.

8. That the European Convention on Human Rights Act 2003 did not give direct effect to the European Convention on Human Rights. Section 2 of the Act of 2003 permitted the Irish courts to refer to the European Convention and the case law of the European Court of Human Rights interpreting it for the purpose of interpreting a statutory provision or rule of Irish law, in so far as it was possible to do so in accordance with the established cannons of construction and interpretation.

9. That the European Court of Human Rights had not determined that same sex couples might form a de facto family protected by article 8 of the European Convention on Human Rights. On the contrary, the court had found that same sex...