Judgments Of the Supreme Court


Judgment Title: McD. -v- L. & anor

Neutral Citation: [2009] IESC 81

Supreme Court Record Number: 186/08

High Court Record Number: 2007 26M

Date of Delivery: 12/10/2009

Court: Supreme Court

Composition of Court: Murray C.J., Denham J., Hardiman J., Geoghegan J., Fennelly J.

Judgment by: Denham J.

Status of Judgment: Approved


THE SUPREME COURT
[Appeal No: 186 of 2008]


Murray C.J.
Denham J.
Hardiman J.
Geoghegan J.
Fennelly J.



Between/


J. McD.
Appellant
and

P.L. and B.M.

Respondents

      Judgment delivered the 10th day of December, 2009 by Denham J.

      1. At the heart of this case is a little boy, born in 2006, a child as defined under the Guardianship of Infants Act, 1964, and referred to in this judgment as "the child". He has not been represented in these proceedings, which have been litigated between the parties. His welfare is at the core of this case. The specific matters put in issue by the pleadings were whether the father is to have guardianship, joint custody, and/or access to the child.

      2. This is an appeal by J.McD., the appellant, referred to in this judgment as "the father", from an order of the High Court (Hedigan J.) refusing his application.

      3. The parties in this appeal are as follows. The father is a single homosexual man. P.L. and B.M., "the respondents", are women who have lived together in a same sex partnership since 1995 and who entered into a civil union in London in 2006. The child, H.L., born in May, 2006 is the child of P.L.. H.L. was conceived by artificial insemination from a sperm donation from the father.

      4. The High Court refused the application of the father for orders appointing him guardian of the child H.L. or giving him access, and it is from that refusal that the father has appealed to this Court.

      The Facts
      5. The judgment of the High Court addressed the facts in detail. With the benefit of that judgment I set out the most relevant facts. Over an extended period of time the respondents considered whether they would have a child, they consulted friends, and ultimately decided that they did wish to have a child. They entered into an arrangement with a friend J.C., a homosexual man living in Amsterdam, who agreed to be a sperm donor.

      6. The respondents drew up an agreement with J.C., and it was signed by all three of them on the 3rd May, 2003. At the core of the agreement was the fact that the sperm donor would not be anonymous, that the child would have knowledge of his biological father, but that the child would remain with the respondents, with the donor adopting a role as "favourite uncle".

      7. Throughout 2003 P.L. attempted to conceive, travelling to Amsterdam on many occasions. However, it was unsuccessful and no child was conceived.

      8. P.L. sought assistance from fertility clinics in Ireland, but was refused on the basis that she was not in a heterosexual relationship.

      9. In 2004 P.L. attended a fertility clinic in London and, during the year, she attempted to become pregnant.

      10. From the beginning of 2005 P.L. returned to the arrangement with J.C. and his donations continued until July, 2005.

      11. The respondents met the father at a party near their home on the 18th December, 2004. Following that there was telephone communication between them, and it was arranged to meet in the respondents' house on the 12th January, 2005. They met again on the 19th January, 2005, and on the 2nd February, 2005.

      12. The learned High Court judge found as a fact that on the 19th January, 2005 P.L. gave to the father a copy of the "contract" with J.C. and a book entitled "It's a Family Affair - The Complete Lesbian Parenting Book" by Lisa Saffron, which has a chapter entitled "You and the Donor".

      13. The father attended the Wellman Clinic on the 21st February, 2005, for a check up. In March, 2005, by arrangement through B.M., the father attended Dr. Grainne Courtney at St. James Hospital for a further check up.

      14. On the 22nd March, 2005, the father told the respondents that he had changed his mind and no longer wished to be a donor. The respondents were very disappointed but continued to maintain some contact with the father.

      15. In late July, 2005 the father indicated to the respondents that he would be interested in proceeding.

      16. The learned High Court judge found that on the 9th August, 2005, the father was at the respondents' house, the contract with J.C. was printed off their computer, and it was amended to insert the father's name. He made his first donation of sperm that evening.

      17. On the 25th August, 2005 the father called to visit and met P.L., who informed him that she was pregnant.

      18. There was some further discussion about the contract. At the father's request a final paragraph was added, which dealt with the situation in the event of the respondents' death. After that the contract was signed.

      19. The signed contract stated:-


        “Agreement on Sperm Donation by J.McD. to P.L./B.M.

        P. and B. have lived together as a couple for over 9 years and decided that they would like to have a child. J. is a 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).

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

        Birth Certificate:

        J. doesn’t mind if his name is included or not on the birth certificate, and is agreeable to whatever P. and B. decide upon this matter.

        Parental Role:

        J. agrees that the child’s parents are P. and B. J. would like to have some contact with the child but will be under no obligation to do so. He sees his role as being like a ‘favourite uncle’. He will not have any responsibility for the child’s upbringing and will not seek to influence the child’s upbringing.

        Contact Arrangements:

        J. will be welcome to visit P., B. and their child at mutually convenient times. This will be at the discretion of P. and B. J. wants to make sure that the child will establish a solid relationship with P. and B. , as parents and will not want to interfere with this in any way.

        Financial obligations:

        P. and B. will be fully responsible for the child’s upbringing and J. will have no financial obligations to the child.

        Child’s contact with J’s extended family: The child’s extended family will be the extended families of P. and B. Any contact with J’s extended family will be at the discretion of P. and B.

        In the event that P. and B. should pass away, J's contact with the child should continue uninterrupted, as per his history of involvement. Also, J's opinion should be considered in terms of deciding the best guardianship arrangements for the child."


      20. Contact continued between the father and the respondents from September 2005 until the birth of the child in May, 2006. They met approximately once a month during this period. The father helped with the renovation of the respondents' house. The learned High Court judge found that what evolved was a "relationship of friendship which remained somewhat at arm's length".

      21. There were conflicts of evidence as to the relationship between the parties. The learned trial judge noted that there was evidence of a relationship seen by the parties from very different perspectives. At the time of the birth of the child, the father visited P.L. and B.M. and the new baby in hospital. The arrival home of the baby was viewed differently. The father saw it as a celebratory occasion and he invited himself to drop in with a bottle of wine to celebrate. The arrival home of the baby was seen as a disaster by the respondents. The period from May, 2006 to the end of July, 2006 was also viewed differently by the parties. The High Court found that the parties met approximately once a week at that time. They went for one walk together with the baby. The respondents visited the father on one occasion, and visited his parents.

      22. In August, 2006 the respondents went to Kerry for their holidays. At that time they considered that the father was being intrusive as he kept inviting himself to their house. The respondents felt that he was no longer behaving as an "uncle".

      23. The parties met on the 3rd September, 2006. It was a fraught occasion. It concluded when the father said to P.L. that if he had known things would turn out this way he would never have gone along with it.

      24. A few days later, having telephoned, the father called to the respondents' house to collect a DVD player, DVDs, and some household items he had lent to them.

      25. The next meeting took place on the 8th October, 2006. It was polite. The child was present. At the end of the meeting the father suggested that he would like to see the child again and suggested once a month on the first weekend. It appears that he used the word "access". The respondents were very concerned at this suggestion and did not agree.

      26. There followed a heated meeting on the 14th November, 2006. At one stage the father stated "I am a father. I have rights". The respondents were fearful that the father had changed his position from the agreed role of "uncle" to that of "father", with all that it implied as to control and parental rights. The meeting ended acrimoniously.

      27. B.M. arranged a meeting with the father on the 22nd November, 2006. B.M. explained that P.L. was having serious health problems. B.M. told the father that the respondents would be going to Australia from early January, 2007 to March, 2007. In fact, due to P.L.'s illness, this was postponed until March.

      28. That was the last occasion on which the father had communication with the respondents until B.M. telephoned him on the 20th March, 2007 to arrange to meet him so that he could see them before they left for Australia on the 24th March, 2007. At that stage the respondents had decided to go to Australia for one year, with B.M. taking up a temporary work position.

      29. The father decided to seek an order preventing them from leaving the jurisdiction with the child. On the 22nd March, 2007, the father obtained, ex parte from Abbott J. in the High Court, an interim order restraining the respondents from removing the child from the jurisdiction.

      30. On the 23rd March, 2007, Abbott J. further ordered that the respondents be at liberty to take the child with them to Australia from the 25th March, 2007, until the 9th May, 2007. In addition, he ordered the preparation of a report pursuant to s.47 of the Family Law Act 1995, as amended.

      31. Subsequently, following an appeal, that order was upheld by this Court and interim access occurred. Dr Gerard Byrne was nominated as assessor and his report was submitted.

      The High Court
      32. The High Court found that between the father and B.M. there was a relationship of "armed neutrality" and that there was a poisonous relationship between the father and P.L.. The learned High Court judge found it was accurately described by Dr. Gerard Byrne.

      33. As to the relationship between the father and the child, the High Court found nothing in the evidence to suggest Dr Byrne's report was incorrect. The learned High Court judge held:-


        "I have no doubt that [the father] has himself formed a bond with the baby but there has been no opportunity for the baby to have formed any attachment to him. It seems clear that Dr Byrne's view that there is no real relationship between [the child] and [the father] other than a biological one is well founded."

      34. The High Court considered the s.47 report of Dr Gerard Byrne and concluded:-


        "It seems to me that the s. 47 report should, at the very least, be accorded the same status as that accorded to a medical expert in childcare proceedings. Indeed, because the expert producing a s. 47 report does so on the instructions of the Court rather than either party, the report should be accorded great weight. Save for grave reasons against, which I think the Court should set out clearly, the s. 47 report ought to be accepted in its recommendations."

      35. The learned High Court judge considered the agreement between the parties and held that:-


        "It seems to me that the above [a quotation from Guest J. in Re: Patrick [2002] Fam CA 193 of the Family Court of Australia] reflects the predominance of the child’s interest that characterises Irish law where a conflict arises between the various parties in any family unit. This leads me to the conclusion that sperm donor agreements, such as herein, may constitute a valid contract but are enforceable only to the extent that the rights of any child born as a result thereof are not prejudiced. As noted above in the agreement herein, save for (i) all its other main terms involve matters in which the child ... has an interest. As this in reality comprises the entire agreement, it follows that the agreement is only enforceable to the extent that the child’s welfare is protected."

      36. The learned trial judge considered the rights of the natural mother. He concluded:-

        "It seems to me that the Court should proceed upon the presumption that the mother will act in the best interests of her child and the onus lies heavily upon any person alleging otherwise to satisfy the Court that it should intervene in the arrangements she makes for the welfare of her child."

      37. The High Court considered the rights of the sperm donor. The learned High Court judge held that the rights of a sperm donor can be regarded as at least no greater than those of the natural father as stated in s.6A of the Guardianship of Infants Act 1964 (as inserted by s.12 of the Status of Children Act 1987).

      38. The High Court considered the rights of the child. The High Court held that the courts may regulate guardianship, access and custody matters in relation to all children in accordance with the statutory framework that requires them to place the child's welfare as the first and paramount consideration.

      39. The High Court considered what were termed as "the rights of the de facto family". The High Court found that the respondents and the child were a de facto family unit.

      40. The learned High Court judge, Hedigan J., referred to the European Convention on Human Rights Act 2003 and referred to cases from the European Court of Human Rights, and held:-


        "… I have come to the conclusion that where a lesbian couple live together in a long term committed relationship of mutual support involving close ties of a personal nature which, were it a heterosexual relationship, would be regarded as a de facto family, they must be regarded as themselves constituting a de facto family enjoying rights as such under article 8 of the E.C.H.R.

      Moreover, where a child is born into such a family unit and is cared for and nurtured therein, then the child itself is a part of such a de facto family unit. Applying this to the case here it seems clear that between [the respondents and the child] there exist such personal ties as give rise to family rights under article 8 of the European Convention on Human Rights."

      The High Court held:-


        "… because [the respondents and the child] enjoy rights as a de facto family, this is a factor which must come into play in determining the central question in this case which is whether [the father] should be granted guardianship rights such as would ensure he had access to the child."

      41. The High Court, having summarised Dr. Byrne's central findings, held:-

      "Dr. Byrne concludes and advises the Court that the [father] should not have any role that gives him rights that could interfere with the child’s family life with the respondents. He recommends against either guardianship or rights of access. He believes the respondents will act in the child’s interests by involving the [father] in an appropriate way in the child’s life."

      42. The learned High Court judge held that the child currently lives in a loving, secure de facto family unit. He held that set against this is the probability of a future within a conflicted, dysfunctional and highly unpredictable relationship that would include, by court order, the presence, either through guardianship or access or both, of the father. He held that "the cost is likely to be the loss of a tranquil and calm upbringing". The learned trial judge concluded that the welfare of the child, which must be the paramount and the first interest, lies in his continuing care, custody and guardianship "of his family" composed of the respondents and himself, and that there should be no court ordered access granted to the father.

      Also, the learned High Court judge referred to rights under article 8 of the European Convention on Human Rights. He held that this de facto family (the respondents and the child) had such family rights as may arise under article 8 which do not conflict with Irish law. The learned High Court judge held that where a lesbian couple live together in a long term committed relationship which, were it a heterosexual relationship, would be regarded as a de facto family, they should be regarded as a de facto family enjoying rights under article 8 of the E.C.H.R.

      Further, he held that because the child and the respondents enjoy rights as a de facto family this is a factor which must come into play in determining the central question in this case as to whether the father should be granted guardianship rights such as would ensure he had access to the child.

      43. The High Court concluded that as the respondents and the child formed a de facto family unit, it was highly probable that the integrity of this family would be seriously, and even possibly fatally, broken by any order of guardianship or access to the father. In all the circumstances the High Court held that the orders sought should be refused.

      The Appeal
      44. The father has brought this appeal, filing 34 grounds of appeal in the Notice of Appeal against the judgment and order of the High Court.

      Submissions
      45. Lengthy written submissions were filed on behalf of the father and the respondents. Inga Clissman S.C., on behalf of the father, made oral submissions to the Court, stressing several matters. A major issue in the High Court was the approach of the learned trial judge to the "de facto family", which it was submitted was an error. Also, it was submitted that the learned trial judge erred in giving too much importance to Dr. Byrne's report. Further, that the learned trial judge failed to give sufficient regard to the status of the father as the biological father of the child. It was explained that the father sought to be appointed guardian so that he might have access, he was not looking for custody. The argument was made that the application was based on the rights of the father as the biological father of the child and the rights of the child, in that it was submitted that the child was entitled to know his father and have his company.

      Mary O'Toole S.C., on behalf of the respondents, submitted that the judgment of the learned High Court judge was based on the welfare of the child, which was the paramount consideration. It was submitted that the child would be subjected to conflict if the father had a role in the child's life, that this finding of the learned trial judge was not contingent on his finding as to a de facto family, nor as to article 8 of the Convention, nor as to the section 47 report.

      Decision
      46. The issue on this appeal is whether the learned trial judge erred in law in his determination. The question is whether, in law, the father is entitled to orders of guardianship and/or access to the child.

      47. For the reasons given in this judgment I would grant the appeal, and would order access to the child by the father, as described. I would not make an order of guardianship.

      48. It is in the best interests of the child that he remain in the custody of his mother. There was no contest on this issue, the father did not seek custody. Essentially the father has at all times sought access to the child, and I am satisfied that it is in the best interests of the child that the father be granted access rights.

      The Test
      49. The test to be applied is well established. The test has been laid down in statute and in common law. Section 6A of the Guardianship of Infants Act 1964 (as inserted by s.12 of the Status of Children Act 1987) provides:-


        "(1) 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 a guardian of the infant."

      Finlay C.J. in J.K. v. V.W. [1990] 2 I.R. 437, in considering the position of the unmarried father in relation to his child, stated at p.446 that:-

        "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."

      On p.447 Finlay C.J. continued:-

        "I am satisfied that the correct construction of s.6A is that it gives to the natural father a right to apply to the court to be appointed as guardian, as distinct from even a defeasible right to be a guardian. The discretion vested in the court on the making of such an application must be exercised regarding the welfare of the infant as the first and paramount consideration. The blood link between the infant and the father and the possibility for the infant to have the benefit of the guardianship by, and the society of its father is one of many factors which may be viewed by the court as relevant to its welfare."

      In W.O'R. v. E.H. [1996] 2 I.R. 248, Hamilton C.J. adopted the approach of

      Finlay C.J.. Hamilton C.J. stated at p.269:-


        "The rights of interest or concern in the context of the guardianship application arise on the making of the application. However, the basic issue for the trial judge is the welfare of the children. In so determining, consideration must be given to all relevant factors. The blood link between the natural father and the children will be one of the many factors for the judge to consider, and the weight it will be given depend on the circumstances as a whole. Thus, the link, if it is only a blood link in the absence of other factors beneficial to the children, and in the presence of factors negative to the children's welfare, is of small weight and would not be a determining factor. But where the children are born as a result of a stable and established relationship and nurtured at the commencement of life by father and mother in a de facto family as opposed to a constitutional family, then the natural father, on application to the Court under s.6A of the Guardianship of Infants Act, 1964, has extensive rights of interest and concern. However, they are subordinate to the paramount concern of the court which is the welfare of the children."


      Sperm Donor
      50. The father, who is the sperm donor, had met and made arrangements with the mother, as described earlier in this judgment, for the birth of a child. He has the status of a father under s.6A of the Guardianship of Infants Act 1964, as amended. Consequently, he has the right to apply to the court, pursuant to the statute, to be appointed guardian. It is for the Court to exercise its discretion in all the circumstances of the case, with the welfare of the child as its first and paramount consideration.

      The circumstances of this case include the fact that the father is not an anonymous sperm donor. He was approached by the respondents who wished to have a child. He agreed initially, then had some doubts and changed his mind, and then once again agreed to be a sperm donor. He entered into a situation where it was anticipated that he would have contact with the child.

      51. I am satisfied that the learned trial judge erred in not giving sufficient weight to the status of the applicant as the father of the child and to other factors relevant to the welfare of the child.

      Factors
      52. All the circumstances of the case and the relevant factors require to be considered in determining the best interests of the child. The weight to be ascribed to a factor will depend on all the circumstances of the case.

      Agreement
      53. The agreement between the parties has been set out previously in this judgment. No case was made that it is an enforceable contract. It is relevant insofar as it shows the intent of the parties at the time. It is notable that it was signed after the first named respondent became pregnant. The agreement shows the clear intent of the respondents and the father that the father would have some contact with the child; his role being that of "favourite uncle". It was intended that the child would know the identity of his father and that there be some level of contact. Clearly the parties had the best interests of the child at heart. It is a tragedy that they have not been able to agree on arrangements in relation to the child.

      There is no doubt that there has been a deterioration in the relationship between the father and the respondents. The arrival of the child, not surprisingly, affected all the parties. Perhaps none of them expected the strength of feelings which they would have for the child.

      The agreement is not enforceable, but insofar as it reflects the best interests of the child it may be a factor to consider. In the agreement the parties aspired to a situation where the child would know its father and have contact with him. These are admirable aspirations.

      The Court must apply the law and determine what are the best interests of the child. A settled and non-contentious scheme of caring for a child, when the parents do not live together, is an important factor. So, if an agreement has been reached then that will assist a court. However, such an agreement may not per se exclude the father.

      The Section 47 Report
      54. One factor to be considered is the s.47 report. Section 47 of the Family Law Act 1995 provides:-


        "(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—
            (a) such probation and welfare officer (within the meaning of the Child Abduction and Enforcement of Custody Orders Act, 1991) as the Minister for Justice may nominate,

            (b) such person nominated by the Health Service Executive specified in the order as the Health Service Executive may nominate, being a person who in its opinion is suitably qualified for the purpose, or

            (c) any other person specified in the order.

        (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.

        (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."


      55. In this case Dr Gerard Byrne prepared the section 47 report. It was considered by the learned High Court judge. As to the status of this report the High Court held:-

        "It seems to me that the s. 47 report should, at the very least, be accorded the same status as that accorded to a medical expert in childcare proceedings. Indeed, because the expert producing a s. 47 report does so on the instructions of the Court rather than either party, the report should be accorded great weight. Save for grave reasons against, which I think the Court should set out clearly, the s. 47 report ought to be accepted in its recommendations."

      56. I agree with the learned High Court judge that the report be accorded the status of the report or evidence of a medical expert. It is an expert's opinion. Indeed the expert may have some advantage in a case like this in having access to all parties, whereas an expert for one party may not have such access. However, the learned trial judge fell into error in his analysis of the status of the report. The person writing the report remains an expert giving his or her opinion to the Court. The report is produced to assist the Court. While it is a matter to be weighed in all the circumstances of the case, it should not, as a mandatory matter, be accorded great weight. A court is neither obliged to accept the report, nor is it required to expressly specify its reasons for non-acceptance of the report. The report should be considered carefully, by the trial judge, together with all the factors and circumstances of the case, and it may assist the trial judge in determining what is in the best interests of the child, whose welfare is the paramount consideration.

      57. In this case the learned trial judge erred in determining that a s.47 report should be given great weight. Further, the learned trial judge erred in determining that the s.47 report should be accepted, as a mandatory matter, save for grave reasons, which the court should set out clearly. Such an approach is erroneous and would alter the role of the court. The court is the decision-maker. The court is required to consider all the circumstances and evidence. The section 47 report is part of the evidence to be considered by the court. It is for the court to determine, in accordance with the law, what is in the best interests of the child, the paramount consideration being the welfare of the child, in determining issues such as access and guardianship.

      58. Therefore, I would allow this ground of appeal. The learned trial judge gave excessive weight to Dr. Byrne's report. The learned trial judge erred in his approach to the s.47 report, and in the status he gave to the report. The report remains a factor to be considered by, and to be of assistance to, the court, and as such I will consider the report.

      Family
      59. The learned High Court judge cited case law referring to de facto families, which related to heterosexual couples. He queried whether a de facto family composed of a same sex couple can give rise to rights and duties or have any status in law. He noted that the Constitution did not recognise a de facto family of same sex couples and considered that the silence of the Constitution on same sex de facto families does not necessarily preclude the court from coming to the conclusion that such units should be recognised as existing and as having certain rights and duties. Further, he concluded that where a lesbian couple lived together in a long term committed relationship, they must themselves be regarded as constituting a de facto family enjoying rights as such under article 8 of the European Convention on Human Rights (E.C.H.R.). He held that the child enjoyed rights by virtue of their de facto family status, which was a factor which must come into play in determining whether the father should be granted guardianship rights such as would ensure he had access to the child.

      I am satisfied that the learned High Court judge erred in his analysis of the family under Irish law.

      The Family under the Constitution
      60. The Constitution of Ireland 1937 gives to "the family" an important role in the State. Article 41 provides:-


        "1° The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

        2° The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State."


      The family is given a special status under the Constitution as a social unit.

      61. The family is not expressly defined in the Constitution. However, the Constitution has been interpreted by the courts as defining the family as based on marriage. In Murray v. Ireland [1985] I.R. 532 at p.536, in the High Court, Costello J. referred to marriage as derived from the Christian concept of:-


        "… a partnership based on an irrevocable personal consent given by both spouses which establishes a unique and very special life-long relationship."

      In O'B. v. S. [1984] I.R. 316 at p.338, this Court stated that:-


        "The provisions of Article 41 of the Constitution create not merely a State interest but a State obligation to safeguard the family."

      Throughout our case law the family is defined as the family based on marriage. In The State (Nicolaou) v. An Bord Uchtála [1966] I.R. 567 Henchy J. stated at p.622:-

        "For the State to award equal constitutional protection to the family founded on marriage and the "family" founded on an extra-marital union would in effect be a disregard of the pledge which the State gives in Article 41.3.1 to guard with special care the institution of marriage."

      Walsh J. stated at p.643 that:-

        "It was quite clear … that the family referred to in [Article 41] is the family which is founded on the institution of marriage and, in the context of the Article, marriage means valid marriage under the law for the time being in force in the State …"

      In the case of The People (D.P.P.) v. J.T. (1988) 3 Frewen 141 Walsh J. once again affirmed that families not based on marriage do not come within Article 41.

      62. Therefore, arising from the terms of the Constitution, "family" means a family based on marriage, the marriage of a man and a woman.

      De facto family
      63. There is no institution in Ireland of a de facto family. Reference has been made in cases previously, as set out earlier in this judgment, to a de facto family, but it is a shorthand method of referring to the circumstances of a settled relationship in which a child lives. In cases where the issue of guardianship, custody and access arise the kernel issue is the welfare of a child. In assessing the welfare of a child all the circumstances require to be analysed. These include the biological parents, the age of the child, the relationships which the child has formed, the situation in which he or she lives. If a couple have lived together in a settled relationship for years and have a child in that relationship then these are critical factors. A child will know and have a relationship with the people with whom he lives - it will be an important aspect of his life, and therefore weigh heavily in determining his welfare. On the other hand, if a couple have a child and do not live together, there may be little or no relationship between the child and the father and thus the relationship with the father will not weigh so heavily. These will be factors in the balance to be considered by the court in determining the welfare of the child. It is a question of considering the welfare of the child in all the circumstances of the case. If the circumstances include a long standing relationship with a parent that is an important factor for the court.

      64. The same analysis will apply to circumstances where same sex couples live together. Circumstances, in which a child is living a settled life, and has a relationship with those with whom he lives, are critical factors.

      65. On the issue of a de facto family, the learned High Court judge fell into error. However, that has little significant effect on the analysis in the circumstances of this case of what is in the best interests of the child. The respondents are a loving couple, taking care of the child, in a settled environment. These are key factors in considering the welfare of the child.

      The European Convention for the Protection of Human Rights and Fundamental Freedoms

      66. Ireland was one of the original signatories to the European Convention on Human Rights in 1950, which was ratified in 1953. However, it was an international treaty and not part of the domestic law. In In re Ó Laighléis [1960] I.R. 93 Maguire C.J. described the position at pp. 124 and 125 as:-


        "The insuperable obstacle to importing the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms into the domestic law of Ireland - if they be at variance with the law - is, however, the terms of the Constitution of Ireland. By Article 15.2.1 of the Constitution it is provided that "the sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State." Moreover, Article 29, the Article dealing with international relations, provides at section 6 that "no international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas."

      67. Maguire C.J. then went on to state that the Oireachtas had not decided that the Convention was to be part of the domestic law of the State.

      68. The European Convention on Human Rights Act, 2003

      69. The Oireachtas has now passed into law The European Convention on Human Rights Act, 2003, which is an Act, as the long title states, to enable further effect to be given, subject to the Constitution, to certain provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 and certain protocols thereto. Section 2 provides that:-


        "(1) In interpreting and applying any statutory provision or rule of law, a court shall, in so far as is possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State's obligations under the Convention provisions."

      This applies to any statute or rule of law in force immediately prior to the passing of the Act or any provision coming into force thereafter as provided for in section 2(2) of the Act of 2003. Further, there is a specific reference to compatibility with the Convention in s.3(1) which states that:-

        "Subject to any statutory provision (other than this Act) or rule of law, every organ of the State shall perform its functions in a manner compatible with the State's obligations under the Convention provisions."

      70. The European Convention on Human Rights Act 2003 does not give direct effect to the European Convention on Human Rights. As McKechnie J. stated in

      T. v. O. [2007] I.E.H.C. 326 the High Court should:-


        "apply the provisions of the Convention, in the interpretation and application of any statutory provision or rule of law, insofar as it is possible to so do in accordance with the established canon’s of construction and interpretation."

      71. The statute in issue in this case is the Guardianship of Infants Act 1964, as amended, which addresses the relevant matter, being the welfare of the child. It does not refer to the relationship between the parties. The issue to be determined is whether it is in the best interests of the child that the father have guardianship, and/or access.

      72. The learned High Court judge treated the respondents and the child as a de facto family under the E.C.H.R.. He recognised that the European Court of Human Rights had not itself recognised a lesbian couple to be a de facto family, yet he went on to recognise them as such.

      73. He held:-


        "I am unaware of any case to date in which the European Court of Human Rights has found that a lesbian couple living together in a committed relationship enjoy the status of a de facto family relationship to which article 8 is applicable. However, X, Y and Z cited above seem to demonstrate a substantial movement towards such a finding. As noted above, it is this Court which has the primary responsibility to interpret and apply Convention principles. To that end, I have come to the conclusion that where a lesbian couple live together in a long term committed relationship of mutual support involving close ties of a personal nature which, were it a heterosexual relationship, would be regarded as a de facto family, they must be regarded as themselves constituting a de facto family enjoying rights as such under article 8 of the E.C.H.R."

      He continued that:-

        " … because [the respondents and … the child], enjoy rights as a de facto family, this is a factor which must come into play in determining the central question in this case which is whether [the father] should be granted guardianship rights such as would ensure he had access to the child."

      74. The learned High Court judge then proceeded to conclude, having analysed the s.47 report, that the welfare of the child lies in the child continuing in the care, custody and guardianship of his family, being the respondents and the child, and that there should be no court ordered access to the father. The learned High Court judge found that the respondents were a de facto family, within the meaning of article 8 of the European Convention on Human Rights. He held that this de facto family had rights which might arise under article 8 which do not conflict with Irish law. He held that nothing in Irish law suggests that this family, composed of two women and a child, has any lesser right to be recognised as a de facto family than a family composed of a man and a woman unmarried to each other and a child. Further, that the Court should give weight to the claim of the respondents that the integrity of their family would be violated by an order of guardianship or access in favour of the father.

      75. I am satisfied that the learned trial judge erred in holding that the respondents and the child were a de facto family, and that he erred in finding authority in the Convention and decisions of the European Court of Human Rights; I am satisfied that in this conclusion he erred. The concept of the family under article 8 is not confined to a nuclear family, it is fact dependent. However, the European Court of Human Rights has not determined that homosexual relationships are "family life" pursuant to Article 8 of the Convention. In Mata Estevez v. Spain, App. No. 56501/00, E.C.H.R. 2001 - VI the European Court of Human Rights held:-


        "As regards establishing whether the decision in question concerns the sphere of "family life" within the meaning of Article 8 s.1 of the Convention, the Court reiterates that, according to the established case law of the Convention Institutions, long term homosexual relationships between two men do not fall within the scope of the right to respect for family life protected by Article 8 of the Convention. … The Court considers that, despite the growing tendency in a number of European States toward the legal and judicial recognition of stable de facto partnerships between homosexuals, this is, given the existence of little common ground between the Contracting States, an area in which they still enjoy a wide margin of appreciation … Accordingly, the applicant's relationship with his late partner does not fall within Article 8 in so far as that provision protects the right to respect for family life. It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention for the purposes of Article 35 s.3."

      While the respondents submitted that there had been a change since that decision, I do not find this to be so. While the mother and her child enjoy family rights, the current jurisprudence of the European Court of Human Rights does not find that same sex partners fall within family life under article 8. I note that this has been the conclusion also in England and Wales in the House of Lords decision in M. v. Secretary of State for Work and Pensions [2006] 2 A.C. 91.

      As regards the relationship between the father and the child, and the issue of Article 8, I am satisfied also that it is not engaged. In J.R.M. v. The Netherlands, App. No. 16944/90, Commission decision of 8 February 1992, the Commission considered that:


        "… the situation in which a person donates a sperm only to enable a woman to become pregnant through artificial insemination does not of itself give the donor a right to respect for family life with the child."

      The Commission then went on to consider the facts of that case and the ties between the father and the child. That is similar to the approach to be taken under the Guardianship of Infants Act 1964, from the perspective of the child.

      There is no definitive jurisprudence on same sex couples relevant to the issues before this Court. Further, it is an area within the national margin of appreciation.

      76. I am satisfied that the learned trial judge erred in holding that the relationship between the respondents was such as to come within the scope of "family life" under Article 8 of the Convention and in applying it to this case. The High Court had no jurisdiction to apply directly the provisions of the Convention as it did.

      77. Also, I am satisfied that the learned trial judge fell into error in his analysis of the case law which has arisen under article 8 of the Convention and in the European Court of Human Rights, in treating the respondents and the child as a family. However, even if this is not so, the Irish law would conflict with such a scenario and would govern the situation. Under the Constitution it has been clearly established that the family in Irish law is based on a marriage between a man and a woman.

      78. Further, there is no institution in Ireland of a "de facto" family. As Hamilton C.J. stated in W.OR. v. E.H. [1996] 2 I.R. 248 at p.265:-


        "A de facto family, or any rights arising therefrom, is not recognised by the Constitution or by any of the enactments of the Oireachtas dealing with the custody of children."

      The term “de facto family” has arisen as a shorthand method of describing circumstances where a couple have lived together in a settled relationship for some time with a child. Such a set of relationships are relevant in considering the welfare of the child. There is no institution of a de facto family.

      79. Thus, there is no institution of a de facto family which may be applied by analogy to the respondents. Therefore, it was an error on the part of the learned High Court judge to describe the respondents and child as a de facto family as if it were a recognised institution. However, the circumstances of the case show that the respondents have lived together for years in a loving relationship and that they provide a settled and loving home for the child. These factors are critical and of importance in assessing the welfare of the child.

      Deception
      80. On the evidence, I am not satisfied that it could be inferred that there was any deception by the father to achieving a "father" status. It is clear that he always wished to have some involvement with the child and that at the birth of the child he felt a bond. This issue is relevant in assessing the welfare of the child.

      81. While the respondents may have developed negative attitudes in varying degrees to the father, after the birth of the child, and prior to the hearing of the case, that too is a matter for consideration only insofar as it reflects upon the welfare of the child. However, it is not determinative of the matter.

      Decision
      81. For the reasons given I am satisfied that the learned High Court judge fell into error and I would quash that decision and allow the appeal. I have considered carefully all the circumstances of the case, including the following factors relevant to the issues of guardianship and access.

            (i) The child lives in a loving environment with the respondents, the first named respondent being his mother. It was clearly established that this is a loving and caring situation for the child. These are important factors to which I attach significant weight.

            (ii) The father is the biological father of the child. While it is not determinative the learned High Court judge gave insufficient weight to this factor.

            (iii) The father, who was a sperm donor, has rights as a natural father, as provided for in s.6A of the Guardianship of Infants Act 1964, as amended, to apply to be appointed guardian of the child. It is for the Court to decide what is in the best interests of the child, the paramount consideration being the welfare of the child.

            (iv) The father formed a bond with the child when he was born.

            (v) The child is very young and has had limited contact with the father, and so has established limited attachment. This lack of contact has arisen mainly because of the actions of the respondents in the emotive circumstances that developed.

            (vi) There is benefit to a child, in general, to have the society of his father. I am satisfied that the learned High Court judge gave insufficient weight to this factor.

            (vii) The poor relationship which has developed between the respondents and the father is a factor. However, the learned trial judge afforded this factor too much weight.

            (viii) The relationship between the father and the respondents is not determinative of the issue of the welfare and rights of the child. It is most unfortunate that the parties have not been able to achieve an agreed form of contact between the father and the child.

            (ix) The parties did enter into an agreement, which is not enforceable. However, the agreement provided for contact between the father and the child, which is a matter in the best interests of the child. Insofar as that agreement is in the best interests of the child I attach some weight to its components.

            (x) The learned trial judge erred in the weight he attached to the s.47 report, as stated earlier in this judgment.

            (xi) The respondents are not a family under the Constitution of Ireland. Thus their relationship may not be weighed as such in the balance against the father.

            (xii) Further, there is no institution of a de facto family in Ireland, and so such may not be weighed against the father. The learned trial judge erred in his analysis of this matter. However, the circumstances in which a chid lives and the relationships of the child are important factors in determining the best interests of the child.

            (xiii) I am satisfied that the learned trial judge erred in his application of the European Convention on Human Rights and in his finding that the respondents had rights under Article 8.

            (xiv) The basic issue is the welfare of the child. Thus a fact based analysis of all the circumstances is required.

            (xv) Applying the test set out earlier in this judgment, the welfare of the child being paramount, I am satisfied that in all the circumstances of the case there should be no order of guardianship made in relation to the father at this time. As in all family law matters, issues may be re-addressed in changed circumstances.

            (xvi) Applying the test to all the circumstances of the case, I would make an order enabling access by the father to the child. This is in the best interests of the child. I would envisage this contact at stated times during the year. It may be on one day a month. It may vary according to circumstances. It may vary as time goes by and the child grows up. It may commence by access of the father and child in the company of another. I make no decision on these details and none should be inferred. These are matters which require to be decided. Indeed this result is not very different from the original agreement entered into between the parties. It may be possible for the parties to arrive at an agreement without the necessity of returning the matter to the High Court to hear parties and to determine the details of access. However, if it is not possible for the parties to reach an agreement on access I would remit the matter to the High Court for a hearing and determination on that issue.

      Conclusion
      82. For the reasons given, in the terms explained above, I would dismiss the appeal insofar as it relates to guardianship, I would allow the appeal on the issue of access and order that the case be remitted to the High Court to determine this issue. However, as is always a preferred option, it may be that the parties could agree the terms of access either until the hearing in the High Court or into the future.

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