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

• Jurisdiction: Ireland
• Judge: Murray C.J.,Denham J.,Mr. Justice Geoghegan,Mr. Justice Fennelly
• Judgment Date: 10 December 2009
• Neutral Citation: [2009] IESC 81
• Court: Supreme Court
• Date: 10 December 2009

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

[2009] IESC 81

BETWEEN

IN THE MATTER OF THE GUARDIANSHIP OF INFANTS ACT, 1964 AND IN THE MATTER OF THE FAMILY LAW ACT, 1995

AND IN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT OF CUSTODY ORDERS ACT, 1991

AND IN THE MATTER OF H.L., AN INFANT.

J McD

Applicant/Appellant

AND

PL AND BM

Respondents/Respondents

[2009] IESC 81

Murray C.J.

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J

RECORD NO. 186/2008

[Appeal No: 186 of 2008]

THE SUPREME COURT

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 - 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 article 8 - JK v VW [1990] 2 IR 437 and WO'R v EH [1996] 2 IR 248 and Mata Estevez v Spain (App 56502/00, ECHR, 10/5/2001) considered - 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 - Applicant's appeal in relation to guardianship dismissed; access remitted (186/2008 - SC - 10/12/2009) [2009] IESC 81

McD(J) v L(P)

Facts: The respondents were in a committed relationship as a lesbian couple and had entered a civil union in 2006 in the United Kingdom. The appellant was a homosexual and the biological father of the child the subject of the proceedings. The mother, L, become pregnant in 2006 by artificial insemination from sperm donated by the appellant pursuant to an agreement, pursuant to which the appellant would act as "favourite uncle". An injunction had been granted by the High Court restraining the respondents from removing the child from the jurisdiction in 2008, which was appealed to the Supreme Court, where the appeal was dismissed. The High Court per Hedigan J. held that the respondents and the child formed a de facto family unit and that the integrity of the family would be broken by any order of guardianship or access to the father. The issue arose on appeal as to whether the agreement made between the parties was a valid contract and enforceable, whether the sperm donor had a right to seek to be appointed a guardian, whether the appellants and respondent and the child constituted a de facto family for the purposes of Article 8 ECHR and whether the sperm donor had a right of access to the child. The appellant father on appeal sought orders to appoint him joint guardian with the mother of the child and orders granting him access to the child.

Held by the Supreme Court per Murray CJ (Denham, Geoghegan, Fennelly, Hardiman JJ. concurring) that the appeal would be allowed on the issue of access to the child and the matter remitted to the High Court for that issued to be decided. Per Denham J: An order enabling access would be in the best interests of the child. The appeal against the refusal to appoint the appellant as guardian would be dismissed (Denham, Geoghegan, Fennelly, Hardiman JJ.). The welfare of the child was the paramount consideration to determine the issues. The agreement between the parties was unenforceable, although of assistance to the factual background (Murray CJ, Denham, Fennelly, Hardiman JJ.). It could not be inferred from the evidence that there was deception by the appellant in seeking to have a "father" relationship (Murray CJ, Denham J.) Per Fennelly J: Undue weight had been given by the learned trial judge as to the psychiatric report obtained pursuant to s. 47 Family Law Act 1995 (Murray CJ, Hardiman concurring).

Per Murray CJ: The European Convention on Human Rights was not directly applicable as part of the law of the State and could only be relied on in certain circumstances in the European Convention on Human Rights Act 2003. Per Murray CJ (Denham, Fennelly JJ. concurring): The High Court had no jurisdiction to apply Article 8 as to the status of the respondents and the child. The Court disagreed with the conclusions of the Court below as to the obligations incumbent upon the courts applying the articles of the convention, as to their obligations to fashion a remedy as required. Obiter: The concept of a de facto family did not exist under Irish law, pursuant to Article 8 ECHR, as the trial judge had found (Murray CJ, Denham, Geoghegan, Fennelly, Hardiman JJ.) Article 8 was not engaged as regards the relationship between the father and the child.

Reporter: E.F.

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

GUARDIANSHIP OF INFANTS ACT 1964 S3

FAMILY LAW ACT 1995 S47

CONSTITUTION ART 29.6

CONSTITUTION ART 6

CONSTITUTION ART 15

O LAIGHLEIS, IN RE 1960 IR 93

ART 26 OF THE CONSTITUTION & HEALTH (AMDT) (NO 2) BILL 2004, IN RE 2005 1 IR 105 2005 1 ILRM 401 2005/29/5927 2005 IESC 7

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS S1

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13

UN CONVENTION ON THE RIGHTS OF THE CHILD 1990

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 46.2

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 46.1

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S1

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S4

MAHON & ORS v KEENA & KENNEDY UNREP SUPREME 26.11.2009 2009 IESC 78

CONSTITUTION ART 15.2

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 1

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 35

NICOLAOU, STATE v BORD UCHTALA 1966 IR 567 102 ILTR 1

GUARDIANSHIP OF INFANTS ACT 1964 S6A

STATUS OF CHILDREN ACT 1987 S12

K (J) v W (V) & PROTESTANT ADOPTION SOCIETY 1990 2 IR 437

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

CONSTITUTION ART 41

MURRAY v IRELAND & AG 1985 IR 532 1985/9/2561

O'B v S 1984 IR 316

DPP, PEOPLE v T (J) 3 FREWEN 141 1988/7/2089

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2(2)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3(1)

T (G) v O (KA) 2008 3 IR 567 2007/58/12336 2007 IEHC 326

ESTEVEZ v SPAIN UNREP ECHR 10.5.2001 (APPLICATION NO 56501/00)

M v SECRETARY OF STATE FOR WORK & PENSIONS 2006 2 AC 91 2006 2 WLR 637 2006 4 AER 929

M (JR) v NETHERLANDS 74 DR 120

CHILD ABDUCTION & ENFORCEMENT OF CUSTODY ORDERS ACT 1991

G v BORD UCHTALA & ORS 1980 IR 32 1979 113 ILTR 25

C (K) & C (A) v BORD UCHTALA 1985 ILRM 302

N (E) & N (ML) v HEALTH SERVICE EXECUTIVE & ORS 2006 4 IR 374

GUARDIANSHIP OF INFANTS ACT 1964 S11

X, Y & Z v UNITED KINGDOM 1997 24 EHRR 143 1997 2 FLR 892 1997 3 FCR 341

CONSTITUTION ART 40.3

CONSTITUTION ART 42

GUARDIANSHIP OF INFANTS ACT 1964 S6(4)

GUARDIANSHIP OF INFANTS ACT 1964 S11(4)

STATUS OF CHILDREN ACT 1987 S13

KEEGAN v IRELAND 1994 18 EHRR 342 1994 3 FCR 165

ADOPTION ACT 1998

SHANNON CHILD LAW 2005 302-304

CONSTITUTION ART 29

KARNER v AUSTRIA 2004 38 EHRR 24 2003 2 FLR 623 2004 2 FCR 563

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 14

R (ULLAH) v SPECIAL ADJUDICATOR 2004 2 AC 323 2004 3 WLR 23 2004 3 AER 785

W (RESIDENCE), IN RE 1999 2 FLR 390 1999 3 FCR 274

1 Judgment of Murray C.J. delivered on the 10th day of December 2009

2 Judgments delivered by Murray C.J. Denham J. Geoghegan J. Fennelly J.

3 Hardiman J agreeing with Fennelly J.

4 This case gives rise to difficult issues concerning the care and welfare of a child born to his mother the first named respondent PL. PL is in a committed relationship with the second named respondent BM. They are a lesbian couple and entered into a civil union under the law of the United Kingdom in 2006.

5 The appellant JMcD is a homosexual man and he is the biological father of the child.

6 The child was born in mid 2006 after PL, the mother, became pregnant by means of artificial insemination from sperm donated by JMcD.

7 The evidence given in the High Court has been extensively summarised in the careful and extensive judgment of the learned High Court Judge. The facts and circumstances of the case are also set out extensively in the judgments of Denham J., and Fennelly J., and I refer to them in summary form solely for the purpose of placing my conclusions and observations in context.

8 I am of the view that the appeal should be allowed on the issue of access by McD to the child and in that respect I agree with the conclusions of Denham J., Geoghegan J., and Fennelly J. I also agree that the appeal of McD against the refusal to appoint him a guardian of the child should be dismissed for the reasons set out in the judgments of my colleagues. In this judgment I intend to focus principally on the status of the European Convention on Human Rights and the relevance or applicability of Article 8 of the Convention to the situation of the respondents and the child as a "de facto family", this issue being a central part of the decision of the High Court. Before addressing that issue I propose, after a reference to the background facts to make brief observations on some of the other issues.

9 In order that PL could become pregnant McD entered into an agreement with her and BM to donate his sperm for that purpose. That agreement purported to govern the role and relationship which McD would have with the child which would be born as a result, it also being agreed that PL and BM as a couple, would have full care and custody of the child, effectively as if...