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

Neutral Citation: [2007] IESC 81
Supreme Court Record Number: 186/08
Court of Criminal Appeal Record Number: 2007 26M
Date of Delivery: 10/12/2009
Court: Supreme Court

THE SUPREME COURT

RECORD NO. 186/2008

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

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

BETWEEN/

J. McD
Applicant/Appellant
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 and

P. L. AND B.M.

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Judgment by: Murray C.J.
Status of Judgment: Unapproved

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

2009

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.

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

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

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.

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.

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 both
were in the position of parents. Accordingly under the agreement it was
acknowledged that PL and BM were to be the parents fully responsible for the
child’s upbringing and that JMcD at most would be a “favourite uncle”. This
concept was not defined as such but it was explicitly provided that JMcD
would not have any responsibility for the child’s upbringing and would not
seek to influence it. The agreement envisaged that both respondents would to
all intent and purposes be the ‘parents’ of the child and would control and

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determine the manner and extent to which the role of “favourite uncle” could
be exercised or performed by the appellant.

After the birth of the child matters did not work out as the parties originally
envisaged as is evident from the summary of the evidence in the judgment of
the High Court and outlined in particular detail in the judgment of Fennelly J.
In substance, subsequent to the birth of the child, the appellant adopted a
different stance as regards his relationship with the child than that envisaged
by the agreement. Effectively he now seeks to assert rights as the father of
the child and, inter alia, to be appointed a guardian of the child and have
rights of access. He does not seek custody. The respondents for their part
were disturbed and distressed at this evolution of events which they consider
threatens their autonomy as a couple having exclusive parental rights in
respect of the child. From their standpoint the appellant has betrayed the
terms of the agreement and, inter alia, their right to determine the extent to
which he would have access or contact with the child and the degree and
circumstances under which he would come to know his biological father.

The child, is placed at the centre of this de facto situation which has given
rise to the conflicting issues concerning his future welfare and the role which
McD, PL and BM should have in it.

In the High Court the learned trial Judge effectively treated the agreement as
unenforceable since he considered the issues which arise in the case fell to be
determined by reference to the interests of the child.

I agree with my colleagues who have written judgments in this matter that
the agreement must, at least for the purposes of determining the issues in
this case, be considered unenforceable, although it is relevant as a factual
background and context to those issues. It is the welfare of the child, as the
first and paramount consideration, which is central to the determination of
the issues in this case as s. 3 of the Guardianship of Infants Act 1964 provides.

There must be some doubt as to whether any such agreement to donate

sperm could be enforceable generally. In particular it is difficult to see on
what basis an agreement or consent of the putative father at that stage as to
his future relationship with his yet to be born child could be considered a
valid and binding. In the High Court it was argued at one point that a father in
the situation of McD could give his consent in a way that paralleled the
consent which a mother or even a married couple could give with regard to
adoption. Even if that were a true parallel a consent of a mother to adoption
prior to the conception or birth of a child could not, in my view, be
considered a full or valid consent. The fact is that a person in the position of
McD when faced after birth with the reality of a child, a person, who is his son
or daughter, even if biologically in the sense of the facts of this case, may,
quite forseeably, experience strong natural feelings of parental empathy and
identity which may overcome previous perceptions of the relationship
between father and child arrived at in the more abstract situation before the
child was even conceived. That such a change of heart would occur must also
be foreseeable as at least a real possibility by parties in a position similar to

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that of PL and BM. Although the rights of such a father are limited as
explained in other written judgments in this case such a change of heart may
be, as it was in this case, an event which raises issues as to whether in the
interests of the child access or guardianship ought to be granted to the
father.

It is in this context that I agree with the conclusions of Denham J., for the
reasons she gives, that it could not properly be inferred from the evidence
that there was deception by McD in seeking to have a “father” relationship
with the child after the birth of his son. That of course does not take away
from the principle that the first and paramount consideration in these issues
remain the welfare of the child. Those considerations transcend any pre-
conception agreement between the father and the mother.

I also agree with Fennelly J’s conclusions concerning the evidence before the
High Court and in particular that undue weight was given by the learned trial
Judge to the psychiatric report obtained pursuant to s. 47 of the Family Law
Act 1995. I agree that the ordinary rules of evidence concerning such a report
should apply. A trial Judge must be free, for stated reasons, to depart in his
or her findings from evidence contained in such a report either because there
is other more persuasive evidence or because he or she is not sufficiently
persuaded by the report as to the correctness of a particular fact or
conclusion in it.

The learned trial Judge concluded that the mother, the second respondent
and the infant were, as a “de facto family”, entitled to be treated as having
the status of a family within the meaning of Article 8 of the Convention and
therefore entitled to directly invoke those rights as a basis for determining
the issues in this case. For the reasons set out hereunder I think it is clear
that the Convention is not directly applicable as part of the law of the State
and may only be relied upon in the circumstances specified in the European
Convention on Human Rights Act of 2003. Therefore the High Court in its
decision had no jurisdiction to apply Article 8 of the Convention to the status
of the respondents and the child. For the purpose of addressing that issue I
propose first of all to consider the status of the Convention in Irish law.

Status of the European Convention on Human Rights

The relationship between international treaties to which Ireland is a party and

national law is imbued with the notion of dualism the effect of which finds
expression in Article 29.6 of the Constitution. According to the concept of
dualism, at national level national law always takes precedence over
international law. At international level, as regards a state’s obligations,
international law takes precedence over its national or internal law which is
why a state cannot generally rely on their own constitutional provisions as an
excuse for not fulfilling international obligations which they have undertaken.
Coming back to the national level the dualist approach means that
international treaties to which a state is a party can only be given effect to in
a national law to the extent that national law, rather than the international
instrument itself, specifies.

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Of course many states including many countries who are party to the
European Convention on Human Rights, adopt the monist approach to the
relationship between international law and national law. According to the
monist concept, in principle international law has primacy over national law
at national as well as international level. Nonetheless the application of this
principle varies in its effect in States which follow the monist approach,
some, for example, giving precedence to national legislation which post-dates
the ratification of a relevant international treaty.

Article 29.6 of the Constitution provides in very clear terms “No international
agreement shall be part of the domestic law of the State save as may be
determined by the Oireachtas.”

This is consistent with the sovereign legislative powers vested in the

Oireachtas by Articles 6 and 15 of the Constitution. The Oireachtas, in turn,
when determining whether, and to what extent, an international agreement
shall be part of the domestic law of the State is governed by the provisions of
the Constitution.

In delivering the judgment of the then Supreme Court in In Re Ó

Laighléis [1960] I.R. 93 at 124 and 125 Maguire C.J. stated:

“When the domestic law makes its own provisions it cannot be controlled by
any inconsistent provisions in international law. …The insuperable obstacle
to importing the provisions of the Convention for the Protection of Human
Rights and Freedoms into the domestic law of Ireland – if they be at variance
with that 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 s. 6
that ‘no international agreement shall be part of the domestic law of the
State save as may be determined by the Oireachts’.

The Oireachtas has not determined that the Convention of Human Rights and
Fundamental Freedoms is to be part of the domestic law of the State, and
accordingly this Court cannot give effect to the Convention if it be contrary
to domestic law or purports to grant rights or impose obligations additional
to those of domestic law.

No argument can prevail against the express command of s. 6 of Article 29 of

the Constitution before Judges whose declared duty is to uphold the
Constitution and the laws.”

Maguire C.J., went on to acknowledge that the State may have obligations
under the Convention at international level but that cannot in itself affect the
application of national law.

This is not to take away from the fact that recourse may and has been had by

6
our courts to the case-law of the European Court of Human Rights (ECtHR) for
comparative law purposes when a court is considering the import of a right
under our law which is the same or similar to a right under the Convention.
(See for example In re Article 26 and the Health (Amendment) Bill 2004: 2005
1 I.R. 105)

In passing I would note the treaties establishing the European Communities

and the European Union, with a consequential creation of a sui generis and
autonomous legal order within the European Union according to which
European law is a part of the domestic law of the State, is a wholly separate
matter. The fact that the law of the European Union is directly applicable and
may to the extent permitted by the Constitution take precedence over
national law stems from the particular manner in which the State became
party to those treaties by way of specific constitutional amendments adopted
by the various referendums.

The State did not rely on Article 29.6 as a means of incorporating European
Union law as part of domestic law. Indeed the Lisbon Treaty may have further
consequences for the reception of the provisions of the European Convention
on Human Rights (ECHR) in national law in those areas governed by the law of
the European Union. None of that is relevant to the issues in this case and in
the considerations which follow it is not necessary to refer again to the
distinctive position which the law of the European Union occupies in our legal
system.

The European Convention may only be made part of domestic law through the
narrow portal of Article 29.6 and then only to the extent determined by the
Oireachtas and subject to the Constitution. The Oireachtas may also, if it
chooses, provide for express statutory protection of Convention rights as a
means of fulfilling Convention obligations.

The European Convention on Human Rights is an international treaty open to

signature and ratification by Governments who are members of the Council of
Europe. The Convention came into force after the deposit of ten instruments
of ratification. The governments of 47 countries have now ratified the
Convention.

Every such country, as a High Contracting Party to the treaty, is under an

obligation to secure to everyone within its jurisdiction the rights and freedom
defined in section 1 of the Convention. Each government, or High Contracting
Party, is also bound by the protocols to the Convention which have been duly
ratified and come into force.

The obligations undertaken by a government which has ratified the

Convention arise under international law and not national law. Accordingly
those obligations reside at international level and in principle the State is not
answerable before the national courts for a breach of an obligation under the
Convention unless express provision is duly made in national legislation for
such liability.

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Even though the Contracting parties undertake to protect convention rights by
national measures the Convention does not purport to be directly applicable
in the national legal systems of the high contracting parties. Nor does the
Convention require those parties to incorporate the provisions of the
Convention as part of its domestic law. So far as the Convention is concerned
it is a matter for each Contracting Party to fulfil its obligations within the
framework of its own constitution and laws. The Convention does not seek to
harmonise the laws of the contracting states but seeks to achieve a minimum
level of protection of the rights specified in the Convention leaving the States
concerned to adopt a higher level of protection should they chose to do so.

Of course all states on ratifying the Convention would have had already in
place, by virtue of the democratic structure of a state founded on the rule of
law, protections which in many instances were often equal or greater to those
specified in the Convention. To the extent that that is so the Convention
requires no further action by the contracting state least of all its
incorporation as part of domestic law. I hasten to add that on the other hand
virtually all, if not all, contracting states have been found to be deficient in
those protections, and in breach of the Convention, as the case-law of the
European Court of Human Rights, (the ECtHR), amply testifies. The number of
times and the extent to which any Contracting Party has been found by the
ECtHR to be in breach of the Convention varies greatly according to the
extent of deficiencies in the protection of rights at national level or the
absence of an adequate domestic remedy under national law for a breach of
rights the subject of protection by the Convention.

It is important to underline that the obligations of Contracting Parties under

the Convention are engaged at international level as was pointed out in Ó
Laighléis. The Convention does not of itself provide a remedy at national level
for victims whose rights have been breached by reference to the provisions of
the Convention. The Contracting States are answerable at international level
before the ECtHR, an international court, and then only where available
national remedies for any alleged wrong have been exhausted. This follows
one of the general principles of international law that international courts
should not have jurisdiction unless an individual claimant against a state has
first exhausted available domestic remedies.

The ECtHR in exercising its jurisdiction to find that a contracting state has
breached its obligations under the Convention may, and does, award damages
to victims who may also benefit from declarations as to their rights. Even then
orders or declarations of the Court are not enforceable at national level
unless national law makes them so. This is so even though a contracting state
may be in breach of its obligations under Article 13 if it fails to ensure that
everyone whose rights and freedoms as set out in the Convention have any
effective remedy for their breach by the State.

Conceptually the Convention requires what most international instruments

require, namely that the contracting parties take steps to introduce at
national level measures giving effect to the obligations which they have
undertaken. The consequences at international level for failure to fulfil

8
obligations may be purely political, economic, moral or a combination of
these sometimes legally reinforced by rulings of an arbitration body or court
at international level. Thus the United Nations Convention on the Rights of
the Child (introduced by General Assembly Resolution 44/25 of 20 November
1989) does not envisage its adoption as a part of the domestic law of ratifying
states but rather that the states would ensure that their national law or
administrative practices provide protection for the rights specified in the
Convention. Its effective implementation is politically supervised by
specialised agencies of the United Nations such as the United Nations
Childrens Fund and by the fact that each state must submit periodic reports
comprehensively explaining the manner and extent to which that convention
has been implemented by national measures. Again, these are obligations
owed in international level and direct applicability of the Convention in
national law is not contemplated.

Under the ECtHR when a state has been found to be in breach of its
Convention obligations by the Court it is the role of the Committee of
Ministers of the Council of Europe to supervise the execution of the Court’s
judgments.

This body cannot force States to comply, and the ultimate sanction for non
compliance is expulsion from the Council of Europe. Once a decision of the
ECtHR has been transmitted to the Committee it invites the country
concerned if in breach of the Convention, to inform it of the steps it has
taken to execute it and once that it is done satisfactorily the Committee
adopts a resolution concluding that its functions under Article 46.2 have been
exercised. Every final judgment of the ECtHR is transmitted to the Committee
(Article 46.2 of the Convention).

Thus contracting states may in principle, so far as the effect of the

Convention at national level is concerned, ignore the decisions of the Court.
Fortunately its decisions are generally respected and executed. The ultimate
sanction to a totally recalcitrant contracting party is a political one, namely
expulsion by the Committee of Ministers from the Council of Europe. Although
many cases have lingered before the Committee of Ministers for years pending
a State’s fulfilment of its obligations following a decision of the ECtHR only
one country has been the object of that ultimate sanction. That country was
Greece when the regime of the so called “Greek Colonels” were in power. In
1967 France, Denmark, Norway, Sweden and the Netherlands had brought
proceedings against Greece before the Court of Human Rights in which the
then Greek regime refused to participate. The Committee of Ministers, faced
with a manifestly undemocratic regime eventually took steps to expel Greece
from the Council of Europe but Greece withdrew from the Council rather than
face ultimate expulsion. Greece of course returned as a member of the
Council when a democratic Government was subsequently elected.

It is in the context of the foregoing perspective of the Convention that an

international instrument binding on states as a matter of international law at
international level rather than national level that this Court has held, at least
prior to the coming into force of the European Convention on Human Rights

9
Act 2003, could not be invoked by an individual as having a normative value or
a direct legal effect in Irish law.

Consequently no claim could be made before a court in Ireland for a breach as

such of any provision of the Convention. To admit such a claim would have
been to treat the Convention as directly applicable in Irish law.

This is still the position subject to the special exceptions of a claim against an
‘organ of the state’ as defined in s. 3 of the Act of 2003 or a claim for a
declaration of incompatibility pursuant to s. 5 of that Act.

European Convention on Human Rights Act 2003

Section 2 of the Act provides as follows:

2.—(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.

(2) This section applies to any statutory provision or rule of law

in force immediately before the passing of this Act or any such
provision coming into force thereafter.
This section obviously is not a basis for founding an autonomous claim based
on a breach of a particular section of the Act. It is an interpretative section
and is limited to requiring that a court, so far as possible, when interpreting
or applying any “statutory provisions” or “rule of law” do so in a manner
compatible with the State’s obligations under the Convention. In exercising its
jurisdiction pursuant to s. 2 a court must identify the statutory provisions or
rule of law which it is interpreting or applying. Even then it is subject to any
rule of law relating to interpretation and application.

“Rule of law” is not defined except to say that it includes the common law.

Section 3 permits a claimant, if no other remedy in damages is available, to

recover damages for injury suffered where an “organ of the State” has failed
to perform its functions in a manner compatible with the State’s obligations
under the Convention. An “organ of the State” is specially defined in s. 1 of
the Act and excludes the President, the Oireachtas and the Courts.

Section 5 permits a provision of the Convention to be relied upon where a

court makes a declaration that a statutory provision or rule of law is
incompatible with the State’s obligations under the Convention. Such a
declaration may only be made where a party to proceedings has no other
adequate and available legal remedy. Other than the making of a declaration
of compatibility any benefit to a claimant is discretionary and extra judicial.
The declaration does not affect the validity or enforcement of any statutory
provision or rule of law. The party to the proceedings concerned may make an
application to the Attorney General for compensation for loss and injury
sustained as a result of the incompatibility concerned and the Government in

10
their discussion may make an ex gratia payment of compensation.

Section 4 facilitates the Courts by permitting account to be taken of decisions

of the ECtHR and other matters without special proof (Mahon v. Keena &
Anor. Supreme Court, Unreported, 26th day of November 2009).

Furthermore by virtue of s. 4 of the Act of 2003 a court, when interpreting

and applying the Convention for the purposes of s. 2 shall take account of
principles laid down by declarations, decisions and opinions of the ECtHR and
the Committee of Ministers on any question in respect of which those bodies
have jurisdiction.

In these proceedings the only potentially relevant section of the Act of 2003 is
s.2 concerning the interpretation of a “statutory provision” or “a rule of law”.
Neither of the other two sections could arise.

Section 2 would appear to be a rather fluid and imprecise mode of

determining the manner in which the Convention should be used to interpret
national law. Although strictly limited to a statutory provision or a rule of law
it requires that such laws be interpreted in the light of any decision of the
Court of Human Rights and the Committee of Ministers into the future and
subsequent to the Act of 2003. It gives the Court of Human Rights a unique
role in the meaning of laws enacted by the Oireachtas. Many international
conventions to which the State subscribes have a defined and limited role and
the scope of their impact on national law can be objectively ascertained or
they may in any event be given effect to in national law by detailed
legislative provisions of implementation.
The rights protected in the Convention are often broadly stated in open ended
terms without any substantive attempt to define their meaning or ambit. The
open textured nature of the rights referred to in the Convention means that
the ECtHR often has recourse to sources outside the text of the Convention
both legal and political in order to decide the meaning and effect of the text
of the Convention. This occurs in the context of the Convention being, as the
Court itself puts it, a “living document” which means that laws and practices
of contracting states which may have long been considered compatible with
the Convention, and which the Court itself may have decided were
compatible, may later emerge as being in breach of the Convention according
as the Court overrules its previous decisions or gives an innovative or
extended meaning to a particular right mentioned in the Convention. This is
not the occasion for an analysis of the sources to which the ECtHR has
recourse to or its methods of interpretation.

It may mean however that the Oireachtas in providing, in the most general
terms, that the laws which it passes are to be interpreted to the extent
possible in accordance with the case-law of the ECtHR (or decisions of the
Committee of Ministers) that the Oireachtas itself will not always be in a
position to perceive or even contemplate, by recourse to any objective
considerations, the meaning, by reference to the Convention, which may
subsequently be given to the provision of an Act which it is passing (and which
it might have passed in altogether different terms if it could have). This raises

11
questions as to how the intent of the Oireachtas by reference to the text of a
statute which it has adopted in accordance with the Constitution is to be
determined and the relevance of that intent to its interpretation. These
questions are relevant to the role of the Oireachtas in whom “the sole and
exclusive power of making laws for the State” is vested by Article 15.2 of the
Constitution. Perhaps the answers to such questions lie in whole or in part in
the proviso in s. 2 by which the requirement to interpret a statute in a
manner compatible with the Convention is “subject to the rules of law
relating to such interpretation and application”.

Such questions do not arise in this case. But they do underline the fact that
the role of the Convention as an interpretative tool in the interpretation of
our law stems from a statute, not the Convention itself, and can only be used
within the ambit of the Act of 2003.

The High Court Judgment

Before addressing certain aspects of the High Court judgment I think there are
general conclusions that flow from the above considerations.

First of all, the European Convention on Human Rights is not generally part of
domestic law and is not directly applicable.

As outlined above the Convention, and associated case-law, may be relied

upon for the purpose of interpreting a “statutory provision” or “rule of law”
as provided for, and subject to the limitations in s. 2 of the Act.

Secondly, provisions of the Convention may also be relied upon in a claim

pursuant to s. 3 for damages against an “organ of the State” as specially
defined in that section. Finally the Convention’s provisions may be relied
upon for the purposes of a declaration that a statutory provision or rule of law
is incompatible with the State’s obligations under the Convention. Claims
under s. 3 and 5 are not relevant to the present proceedings.

While I agree with the learned High Court Judge that “…it is upon the
individual state concerned that the Convention lays the burden of remedying
violations found” I must disagree with his conclusion that certain Articles of
the Convention (Articles 1, 13 and 35) “… lay firmly and clearly upon the Irish
Courts the duty to secure a remedy where required and apply the rights
contained in the Convention.” An international convention cannot confer or
impose functions on our Courts. The role and functions of Courts in the
administration of justice are governed by the Constitution and the laws of the
State. Of course the Courts may be given jurisdiction to enforce or adjudicate
on rights which the State has agreed, in an international treaty, to promote or
protect. Moreover, it can only be conferred by national law and if sought to
be done by making an international agreement, wholly or partially, part of
domestic law then it must be done in accordance with Article 29.6 and in a
manner consistent with the Constitution as a whole. (See In re Ó
Laighléis cited above)

12
As the learned High Court Judge correctly pointed out the Convention imposes
obligations on the State to secure, inter alia, the rights specified in the
Convention and to ensure that any violation of such rights “shall have an
effective remedy before a national authority”. (Article 13). While
conceptually the Convention does of course expect contracting states to
provide remedies before a “national authority”, usually the courts, it does not
purport to impose or confer any jurisdiction on national courts.
The duty of the Courts is to enforce the Constitution and the laws of the
State. Thus the declaration which the Constitution requires every Judge to
make before entering upon his or her office is, inter alia, to “uphold the
Constitution and the laws”. Accordingly, Courts will enforce or adjudicate on
issues concerning rights which have their origin in an international convention
when duly conferred with such jurisdiction as a matter of national law.
Otherwise they have no jurisdiction to do so.

It is in this context, and consistent with that approach, the Convention

accords to individuals a right of direct recourse to the ECtHR against a state,
once he or she has exhausted any available domestic remedy, not by way of
appeal, but by way of petition in separate proceedings claiming that the state
has been in breach of its obligations under the Convention. The absence of an
adequate remedy in national law for the breach of a person’s convention
rights does not entail a breach of duty by the national courts, who must apply
national law, including constitutional law, but by the contracting state as
such. For any such breach is answerable before the ECtHR.

Adjudication on Claims under Article 8

In the course of his judgment the learned High Court Judge then went on to
refer to the “apparent silence of domestic law on the question of same sex
couples”. On this basis he went on to consider whether the Convention could
provide assistance, absent a constitutional conflict regarding the legal status
of such couples.

Thus it was on the basis that the law was silent that the learned trial Judge
proceeded to consider whether PL and BM together with the child constituted
“a family” or, as he put it, a “de facto family”, so as to benefit from the legal
status and rights conferred on a family by Article 8 of the Convention.

In so proceeding to examine that question the learned trial Judge did not
identify any statutory provision or rule of law which required interpretation
for the purposes of s. 2 of the Act of 2003.

On the contrary, it was the apparent absence of a statutory provision or a rule

of law governing the status of same sex couples which gave rise to the learned
trial Judge’s interpretation and application of Article 8.

The only potentially relevant basis in the context of these proceedings for
having recourse to the terms of the Convention might be s. 2. Accordingly the

13
premise upon which the learned trial Judge embarked on what appears to
have been an autonomous direct application of Article 8 of the Convention in
the circumstances of this case was not correct. In the course of his judgment
the learned trial Judge specifically mentions that the “Applicant claims rights
under Article 8” and rejects that claim: He then examined whether PL, BM
and the child were entitled to claim rights under Article 8 of the Convention
as a family within the meaning of that Article. The learned trial Judge
decided that they did constitute such a family and had such rights.

Those issues were determined as independent autonomous claims arising

under Article 8. In my view the High Court had no jurisdiction to apply
directly the provisions of the Convention in that manner. In considering and
determining those issues the High Court was not exercising, or indeed
purporting to exercise, a function pursuant to s. 2 of the Act and no issue had
arisen under sections 3 or 5 of the Act. Accordingly there was no basis in law
for applying Article 8 of the Convention to the status of PL and BM or any of
the parties. On those grounds alone the ruling of the High Court that PL, BM
and the child were a family for the purpose of Article 8, may be set aside.

Although it may not be necessary to do so, I should add that the mere fact
that the law could be said to be silent as regards a specific situation does not
necessarily mean that it is unaffected by the law or the Constitution. Silence
of the law may speak volumes for the legal status to be accorded or not to be
accorded to a particular subject matter or situation. In any event, in this
case, as the law stands, and as the learned trial Judge recognised, PL as the
mother of the child, is entitled to exercise her rights of custody and
parenthood under the law and the Constitution. She must be entitled to do so
without those rights being trammelled by any legal rights that might be said
to be vested under the Convention in BM on the basis of the interpretation
given by the High Court to Article 8. Similarly, McD is entitled to have any
rights which he may have as the biological father without being qualified by
supposed Article 8 rights vested in the respondents. It is perhaps sufficient for
present purposes, to cite, as Denham J., does in her judgment the statement
of Henchy J., in The State (Nicolaou) v. An Bord Uchtála [1966] I.R. 567 at
page 622: - “For the State to award equal constitutional protection to the
family founded on marriage and the ‘family’ founded on 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”. In short to say
that the law is silent on a specific matter is not to say that such a matter
necessarily exists in a legal vacuum so as to be unaffected by other rules of
law.

That is not to say that the de facto position of BM could or should be totally
ignored in considering the issues in this case since so much turns on the
ultimate interests of the child. BM’s relationship with PL and their
relationship with the child are among the factors to be taken into account in
that context. That the situation of a party other than a natural parent, and in
particular such a person’s relationship with the child, should be a material
factor in determining the custody and associated rights of the child is not
unique to the situation which has arisen in this case. It may also arise in a

14
variety of other situations such as a household consisting of a mother and
child and one, or both, parents or where a child has been raised for a number
of years by grandparents or foster parents. In the end these often so difficult
situations have to be determined by the best interests of the child being
considered paramount and, subject to that, with due regard to constitutional
and other rights in law vested in other parties.

For the reasons indicated above I am of the view that the learned trial Judge
had no jurisdiction to consider the claims of either the applicant McD or of
the respondents PL and BM as distinct claims to rights under Article 8 of the
Convention.

Interpretation of Article 8 of the Convention

Having concluded that it was not open to the learned trial Judge to interpret
and apply Article 8 of the Convention to the circumstances of this case it is
not strictly necessary to proceed to consider the interpretation of Article 8
although Denham J., and Fennelly J., have very usefully done so. I agree with
their conclusions concerning the interpretation of Article 8 in the light of the
case-law of the ECtHR. As to analysis in detail of the principles to be applied
by our courts, in our constitutional and legislative context, when interpreting
or applying the Convention, I would prefer to leave that until the necessity to
do so arises in another case.

Conclusion

Accordingly I conclude that the appeal and the issue of access only should be
allowed and the matter remitted to the High Court for that issue to be
decided.

15
Judgment by: Denham J.
Status of Judgment: Approved

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.

16
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

17
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

18
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

19
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

20
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."

21
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

22
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,

23
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,

24
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.

25
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.

26
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:-

27
"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.

28
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

29
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

30
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:-

31
"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.

32
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

33
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

34
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.

35
Judgment by: Geoghegan J.
Status of Judgment: Approved

JUDGMENT of Mr. Justice Geoghegan delivered the 10th day of

December 2009

On the face of it this is a novel case as far as this court is concerned. It is an

appeal from a refusal by the High Court (Hedigan J.) to appoint a sperm
donor/father of an infant to be a guardian of that infant and further refusing
any order relating to access to the said infant by the natural father. The first-
named respondent is the mother of the child and is bringing up the child in a
lesbian partnership with the second-named respondent. Both have availed of
a civil union ceremony in England.

In terms of the legal principles applicable, I am of opinion that there is really

no novelty involved unless the learned trial judge is correct in his view that
the Human Rights Act, 2003 has a bearing on this litigation. The Attorney
General, in submissions put forward in his capacity as a notice party, has
persuasively argued against the relevance of that Act to this case. That view
is concurred in by Fennelly J. in his judgment which I have had the advantage
of reading. I agree with the views expressed in that judgment relating to the
points allegedly or arguably arising under the Convention of Human Rights and
I do not propose to repeat or expand on them. My only comment would be
that I find nothing wrong with the rather useful expression “de facto
family” provided it is not regarded as a legal term or given a legal
connotation. But as the Latin makes clear it connotes merely a factual
situation and not a legal concept. I am in full agreement with the views of
Denham J. in paragraphs 63 and 64 of her judgment.

I think it important to reproduce those two passages in this judgment by way

of quotation as the expression “de facto family” is on the one hand a useful
shorthand but on the other hand could give rise to misunderstanding having
regard to particular applications of it by the European Court of Human Rights.
The two paragraphs in question read as follows:

“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

36
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 weight 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.”

I intend now to concentrate on how applications of the kind made in this case
ought to be dealt with as a matter of Irish law and without regard to the
Convention. Applying what I believe to be the correct domestic law principles,
I would uphold the High Court’s refusal to appoint the appellant to be a
guardian (without prejudice of course to the appellant’s right to make a new
application for guardianship in the context of changed circumstances) but I
would reverse the order refusing all access. The form of access which I would
have in mind to be allowed however, would be far more limited than that
suggested at different times by or on behalf of the appellant. I would return
the case to the High Court for regulation of the access. That would include
making every effort through a mediator or otherwise to reach agreement
between the parties as to the precise arrangements provided that they did
not infringe the all embracing concept that the first and paramount interest
must be the welfare of the child. Otherwise, and subject to the constitutional
right of appeal, I would envisage the High Court as being a tribunal of last
resort. My thinking on this derives from my belief that the
arrangement/agreement (it is immaterial whether it had any legally binding
effect or not) characterising the appellant’s relationship to the child as that
of a “favourite uncle” was a sensible one in all the circumstances and in the
best interests of the child. What primarily went wrong was that the appellant
breached the agreement. Although there were some inconsistencies in his
answering, my overall impression from reading the transcript of the evidence
of the appellant particularly under cross-examination from Ms. Mary O’Toole,
S.C. was that he did not really deny his breaking of the agreement to any
great extent. As a witness, he seemed to have come across as thoughtful and
quite careful in his answers. I am puzzled by the finding of the learned High
Court judge that the appellant deceived the respondents from the start as to
his motivation and intent. This finding was not a primary finding of fact and,
therefore, unreviewable by this court if sustainable. Rather it seems to me to
have been an inference drawn from the evidence. Making all allowances for
the fact that a trial judge has the advantage of watching the body language of
witnesses and accepting that even though it is open to me to draw a different
inference, I should be somewhat slow to do so, I have no hesitation in

37
rejecting that inference. Indeed, even if it were a primary finding of fact, I
would be of the view that it was unsupported by the evidence. In this
judgment, therefore, I am approaching the case on the basis that the
appellant acted bona fide at all stages relevant to the entry into the
agreement or arrangement.

Three matters led to the appellant purporting to assert paternal rather than
avuncular rights to a degree that went far beyond the arrangements agreed
upon and indeed contrary to those arrangements.

The first was the natural and, in a sense, perfectly human excitement on the
part of the appellant at the birth of what he regarded as and what was in fact
his own child. The second was a consequent but rather colder reflection on
what his legal rights might be as a father independently of any arrangement
made. The third and perhaps the catalyst for the real trouble was the stated
intention on the part of the respondents not only to move to Australia with
the child but to remain there for up to a year. It is only fair to state at this
stage that one of the respondents is Australian. This expressed intention must
be seen in the context that the original plan had been to go to Australia for a
much shorter period such as two months to which the appellant would not
have objected.

The appellant instituted these proceedings by special summons and sought an

interlocutory injunction restraining the respondents from travelling with the
child to Australia. The matter came before Abbott J. first by way of ex
parte application for an interim injunction which the judge granted and
subsequently by way of motion for the interlocutory injunction. After a
hearing, Abbott J. made an order permitting the taking of the child out of the
jurisdiction for the purpose of a vacation in Australia from the 25th March,
2007 to the 9th May 2007 but making a further order prohibiting the child
from being removed from this jurisdiction without leave of the court pending
the determination of the proceedings. He also ordered that a report be
obtained under section 47 of the Family Law Act, 1995. This report was to be
prepared by the distinguished child psychiatrist, Dr. Gerard Byrne. The
respondents appealed the matter to the Supreme Court which by a majority
of two judges Denham J. and Finnegan J., Fennelly J. dissenting, affirmed the
orders of the High Court. This litigation and particularly the interlocutory
aspect of it, though probably inevitable, did not help good relations between
the parties. Hedigan J., in his judgment, recites that on the following 30th
July, the matter came before the High Court (Sheehan J.) by way of an
application for interim access pending the full hearing. The court on that
occasion ordered such interim access to take place on Saturday, 25th August
and on Saturday, 15th September for periods of one and a half hours each in
the presence of either or both of the respondents in their home or some other
venue convenient to their home. The learned High Court judge observed
that “this access took place without incident on the said dates”.

At this point, it is important to consider what are the legal rights (if any) of a
natural father of a child born out of wedlock. This has been referred to in
some detail in the judgment of Fennelly J. He points out that this court has

38
considered the rights or interests of a natural father in two leading cases
i.e.J.K. v. V.W. [1990] 2 I.R. 437 and W. O’R. v. E.H. (Guardianship) [1996] 2
I.R. 248. Undoubtedly, these two cases when read together explained the
principles to be applied on an application by a natural father for guardianship
and/or custody and/or access where his child has been born out of wedlock.

Of the two, the W.O’R case would seem to be closer on its facts to this
particular case. That is because the facts were such in the J.K. case that if an
order for guardianship was made in favour of the applicant, an order for sole
custody in his favour would also have had to be made. That is not so in
the W.O’R case. Nevertheless in reviewing the case law, I think it useful to
make some brief observations on the judgment of Finlay C.J. in J.K. which
was the judgment of the majority of this court. As I read that judgment, what
was of primary concern to Finlay C.J. in disapproving of the judgment of the
High Court (Barron J.) was the somewhat negative way in which, on his
interpretation, at least, the learned High Court judge dealt with the issue of
the welfare of the child. Barron J. had defined the correct test as being

1. whether the natural father is a fit person to be appointed guardian and, if

so,

2. whether there are circumstances involving the welfare of the child which
require that, notwithstanding he is a fit person, he should not be so
appointed.

The judge then in a later part of the case stated expanded on the test when
he said the following:

“In my opinion having regard to the purposes of the Status of Children Act,
1987, the rights of the father should not be denied by considerations of the
welfare of the child alone, but only where – and they do not exist in the
present case – there are good reasons for so doing.”

The key sentence in the judgment of the former Chief Justice is the following:

“A right to guardianship defeasible by circumstances or reasons ‘involving

the welfare of the child’ could not possibly be equated with regarding the
welfare of the child as the first and paramount consideration in the exercise
by the court of its discretion as to whether or not to appoint the father
guardian. The construction apparently placed by the learned trial judge in
the case stated upon section 6(A) to a large extent would appear to spring
from the submission made on behalf of the applicant on this appeal that he
has got a constitutional right, or a natural right identified by the
Constitution, to the guardianship of the child, and that the Act of 1987 be
inserting s. 6(A) into the Act of 1964 is thereby declaring or acknowledging
that right”.

In my view, the judgment of Finlay C.J. must be read in that light. In the
dissenting judgment of McCarthy J. a somewhat different interpretation was

39
placed on the principles laid down by Barron J. McCarthy J., although taking
issue with the later rider already referred to in the case stated thought that
the second of the two tests laid down by Barron J. did not depart from the
first and paramount consideration but rather expressed it in a different way.
It is clear, in my view, that Finlay C.J. and the other judges of the Supreme
Court including McCarthy J. and, of course, Barron J. in the High Court all
accepted that the surrounding factual circumstances were crucial. Finlay C.J.
put it in a rather polarised way. He said the following at p. 447 of the report:

“The extent and character of the rights which accrue arising from the
relationship of a father to a child to whose mother he is not married must
vary very greatly indeed, depending on the circumstances of each individual
case.

The range of variation would, I am satisfied, extend from the situation of

the father of a child conceived as a result of a casual intercourse, where the
rights might well be so minimal as practically to be non-existent, to the
situation of a child born as the result of a stable and established relationship
and nurtured at the commencement of his life by his father and mother in a
situation bearing nearly all of the characteristics of a constitutionally
protected family, when the rights would be very extensive indeed.”

I interpret that passage as essentially meaning that the degree (if any) to
which rights might be conferred on the father pursuant to application of the
Guardianship of Infants Act, 1964 as amended by the Status of Children Act,
1987 will depend on the circumstances of the particular case and must
always, of course, be subject also to the principle that the welfare of the
child should be the first and paramount consideration. It would be a
misinterpretation of the passage to apply a literal construction to the
examples given by the former Chief Justice, as the consequence of doing that
could not possibly have been intended by him. For instance, all fathers “of a
child conceived as a result of casual intercourse” could not be treated in the
same way. At one end of the spectrum is the violent rapist but at the other
end is the father of a child unintentionally conceived as a result of casual
intercourse where nevertheless the father takes his responsibility seriously
and is anxious to retain a relationship with the child which would clearly be to
their mutual benefit. The latter is not a farfetched example. On the contrary,
it is a situation not infrequently encountered. On the other hand if (very often
for perfectly good reasons) marriage is not the right destiny for the couple,
the child will normally be brought up by the mother and on any application by
the father a court would have to take that into account.

I merely mention this with a view to indicating the range of situations that
may arise. Even within the narrow confines of a sperm donor situation, as in
this particular case, there may be wholly different sets of circumstances.
There may be the anonymous donor who afterwards purports to claim such
rights. There may be the known donor, as in this case, but with quite
different types of side agreements (whether binding or not). In either of those

40
situations, the donee may be married or unmarried and may be living in a
heterosexual or homosexual relationship or none.

In all these cases, the judge dealing with the application, must stand back
and consider what is the just and common sense solution, always bearing in
mind that the child’s welfare is the first and paramount consideration. In this
latter connection, the principle stated in the judgment of Walsh J. inG. v. An
Bord Uchtála [1980] I.R. 32 at p. 76 is relevant.

“The word ‘paramount’ by itself is not by any means an indication of

exclusivity; no doubt if the Oireachtas had intended the welfare of the child
to be the sole consideration it would have said so. The use of the word
‘paramount’ certainly indicates that the welfare of the child is to be the
superior or the most important consideration, in so far as it can be, having
regard to the law or the provisions of the Constitution applicable to any
given case.”

As was pointed out by Barron J. in the J.K. case Finlay C.J. referred to this
passage in K.C. v. An Bord Uchtála [1985] I.L.R.M. 302 at 318. The same
principle of interpretation was referred to by Hamilton C.J. in
the W.O’R. case.

Returning to the J.K. case, Finlay C.J. adopted a somewhat enigmatic phrase
which was later referred to by Hamilton C.J. in the W.O’R. case in a passage
cited by Fennelly J. in his judgment. The phrase in question is “rights of
interest or concern arising from the blood link between the father and the
child”. I think it is important to note the precise context in which Finlay C.J.
used that phrase at page 447 of the report in the J.K. case. It was used
immediately after his reference to “the construction apparently placed by
the learned trial judge in the case stated upon s. 6(A)” which in the former
Chief Justice’s view to a large extent appeared to spring from a submission
made on behalf of the applicant in that case “that he had got a constitutional
right, or a natural right identified by the Constitution, to the guardianship
of the child and that the Act of 1987 by inserting s. 6(A) into the Act of 1964
is thereby declaring or acknowledging that right.” What Finlay C.J. is then at
pains to point out is that the father has no constitutional right or no natural
right recognised by the Constitution (my emphasis) and that even the statute
only gives him a right to apply. When Finlay C.J. then refers to “rights of
interest or concern arising from the blood link”, I interpret that as meaning
that he is referring to limited natural rights of a kind which do not have
constitutional recognition as such. On the other hand, it is clear from the
passage cited by Fennelly J. from the judgment of Hamilton C.J. in
the W.O’R case that Hamilton C.J. did consider that “the rights of interest or
concern” in the context of the guardianship application arose on the making
of the application. He went on to say however that the basic issue for the
trial judge is the welfare of the children.

I do not think anything really turns on this slight nuance of difference if it

exists because, on any interpretation of both judgments, the court would

41
have to consider the blood link in the context of its affording a beneficial
reason from the child’s point of view as to whether there be contact to some
degree with the child.

In the light of the legal principles, it is necessary, as I have suggested, to look

first at the purely factual situation. Needless to say, that has to be done
without any element of moralising. At the time the original arrangements
were negotiated what was intended by the respondents and what was
perfectly understood to be intended by the appellant was that there be a
child of the quasi marriage (as the respondents would see it) and that
although that child was to emerge as a consequence of pregnancy by the first-
named respondent, the two respondents were intended to be the “parents”. I
have deliberately used the definite article because, as I see it, it was never
intended either that this child would have three parents or that it would only
have a single parent. It was intended that the child be brought up by two
parents though both of them female. Prima facie it would appear to me to be
clearly disruptive of the ordinary family life of the child and, therefore,
against the child’s interest that there be in effect an
intruding “third” parent. It is well known, however, from adoption situations
in particular, that a child not brought up by and out of contact with one or
more of his or her natural parents will frequently have a real interest at some
stage in making such contact. Considering the child’s best interest therefore,
the blood link is always a factor to be taken into account but any conclusions
that are drawn, having taken it into account, may vary enormously depending
on the circumstances.

In this particular case there was an agreement. Irrespective of whether any

part of that agreement is legally enforceable or not or even legally
enforceable to a limited extent (questions which I do not find it necessary to
decide) the terms of that agreement or arrangement are, in my view, an
important relevant factor to be taken into account by a judge hearing an
application of this kind. If a lesbian partnership is going to avail of the
services of a sperm donor, all going to plan, a child will emerge. Any court
which may have to consider in the future issues of contact between the child
and the sperm donor will be statutorily bound to adopt as its first and
paramount consideration the best interests of that child. Any future
disharmony could be against the best interests of the child. An advance
agreed arrangement, therefore, is something prima facie beneficial.

The agreement in its signed form has been helpfully set out in full by Fennelly
J. in his judgment. The first clause of importance to which I want to refer is
at the beginning of the agreement and it reads as follows:

“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 John is his/her biological father.
The child would be encouraged to call him John.”

That clause and indeed virtually the entire agreement was drafted by a

42
previously intended donor whose sperm donation was not successful. It was
then adapted with minor amendments for the appellant. It is significant that
the appellant did not draft it but he had been shown it and agreed it. It
corresponded with the general tenor of the prior discussion. Whilst it was
obviously partly to the benefit of the appellant, it was equally seen by all
three parties as to the benefit of the child and so it was in my view. I will
return to the difficult question as to whether this or any other clauses in the
agreement affect legitimate rights of access or create any clog on emigration.

The next clause granted discretion as to whether the appellant would be

named on the birth certificate or not and left it to the respondents to decide.
In fact they decided against it. The following clause is of the utmost
importance. It is headed “parental role” and it reads as follows:

“John agrees that the child’s parents are (P) and (B). John would like to have
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.”

As drafted, that clause would seem to suggest that none of the parties wanted
to create obligations on the appellant in relation to contact with the child and
that it would be accepted that he would not be assuming any normal parental
responsibilities for the child’s upbringing or seek a role in influencing the
child’s upbringing. The most important sentence in this clause in this is the
following: “He sees his role as being like a ‘favourite uncle’.” In my view,
that is a clever expression. It was not invented by either the appellant or the
respondents. It would seem to me that if there is going to be any form of
contact relationship at the early stages at least between a sperm donor
natural father and the resulting child being reared by a stable lesbian
partnership, that is the only viable role for the donor. Any connection closer
than that, at least in the absence of complete agreement, would be bound to
be wholly disruptive and against the child’s interests. There is no doubt,
however, that once the child in this case was born, the appellant ignored
these provisions and purported to assume a much stronger role. I will return
to deal with that in more detail in due course.

The next clause in this agreement/arrangement is headed “Contact

arrangements” and it reads as follows:

“John will be welcome to visit (P), (B) and their child at mutually convenient
times. This will be at the discretion of (P) and (B). John 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.”

Obviously, the appointment of the appellant as a guardian with or without

joint custody would not help to ensure that “the child will establish a solid
relationship” with the respondents. Nevertheless, the court would have to
make this order if, bearing in mind the first and paramount interest is the

43
welfare of the child, the court considered that such appointment was
appropriate. Any court however should, first of all, pay due respect to the
agreement and if the terms are beneficial to the child, when viewed in the
round, an appointment as guardian would not be warranted. As I have already
indicated, I believe that to be the position in this case.

It was then agreed that the respondents were to be “fully responsible for the
child’s upbringing” and that the appellant “will have no financial obligations
to the child”. That clause is simply cementing the exclusive parentage of the
respondents.

The next and second last clause of the agreement however is significant. It is
headed “Child’s contact with John’s extended family” and it then reads:

“The child’s extended family will be the extended families of (P) and (B).
Contact with John’s extended family will be at the discretion of (P) and (B).”

If I am right in my view that the other terms of the agreement are in the best
interests of the child then the natural consequence would be that the
extended family would, in the main, be the respective families of the
respondents. In my view, there was implied into that clause an understanding
that there could be some contact from time to time with the appellant’s
family as indeed would happen with any “uncle”.

The last clause in the agreement reads as follows:

“In the event that (P) and (B) should pass away, John’s contact with the child
should continue uninterrupted, as per his history of involvement. Also,
John’s opinion should be considered in terms of deciding the best
guardianship arrangements for the child.”

For that last sentence to come into operation the appellant would have to be
appointed a guardian. The situation has not arisen at this juncture and may
never arise. If it did, it would be a wholly new situation and a court would
have to consider the matter afresh. The appellant might well have a strong
case in that situation for being appointed a guardian but without knowing the
circumstances which would pertain then, it would be pointless to express any
definitive view.

It is unfortunate that the terms of that agreement were not adhered to. Dr.
Byrne, in his section 47 report and in his evidence before the court, advised
against guardianship and advised against access until the child was at least six
years of age but his main reason for taking that view was the dissension that
has broken out as between the appellant and the respondents. The learned
trial judge accepted this advice on the basis on which it was given and, as I
have already mentioned, added the further input of his own that there had
been an intention on the part of the appellant to mislead the respondents
from the very beginning. For the reasons indicated, I have already rejected

44
the latter finding. I am not, however, completely satisfied either with the
basis put forward by Dr. Byrne for the rulings which he recommended and
which were adopted by the learned judge. His approach inherently contains
an assumption which in my view is highly questionable. That is the assumption
that the fractious relations between the appellant and the respondents would
continue into the future after the decision of this court. The learned trial
judge should have made an assessment of the probabilities in this regard. At
any rate the judge was not correct in his view that apart from exceptional
circumstances, the court should not depart from an opinion expressed in a
section 47 report. The evidence suggests that there was originally complete
goodwill and bona fide negotiations between the parties. I am not convinced
that the good relations cannot be restored but I will return to that point in
due course. A different view was expressed by Dr. Antoinette Dalton the
psychiatrist called on behalf of the appellant. The learned High Court judge
was perfectly entitled to prefer the view of Dr. Byrne but unfortunately, he
erroneously held that unless there were special reasons the court should
adopt the advice of an expert appointed by the court. I cannot accept that
view.

Returning to the facts, the goodwill understandably broke down because in a

number of respects, the appellant seriously breached the agreement. There
were some disagreements as to the factual history but the following facts
clearly emerge as either agreed facts or facts found by the learned High Court
judge. From and after the agreement there was what the judge describes
as “a relationship of friendship which remains somewhat at arms length”.
They met about once per month. During this period, the respondents entered
into a civil union ceremony in London and there was a certain amount of
vacillation as to whether the appellant would be invited or not. None of that
seems to me to be particularly relevant to the issues with which this court has
to deal. An unfortunate incident however occurred during this period. There
was an occasion when the respondents had dinner with the appellant and a
female friend of his from the U.S.A. That friend made the unwise comment
that the new baby was so lucky to have “three such excellent parents”.
Apparently, this greatly upset the first-named respondent as she considered
that the appellant was beginning to assume a role of parent rather than that
of uncle. He subsequently apologised for the incident. Real problems began to
arise at the time of the birth. Fundamentally what happened was that the
appellant did not act like an uncle but acted like a parent. He made far too
early a visit to the baby in hospital and he organised an intended visit
involving his parents, his sister and a friend of theirs from the U.S.A. The
first-named respondent refused to allow the visit take place and this led to
friction. The learned trial judge seems clearly to have accepted that
underlying concerns of the first-named respondent was a fear that the
appellant was more and more attempting to act like a parent. There were
other incidents also which it is not necessary to particularise. In summary, at
the time of the birth, the appellant was altogether too intrusive.

Nevertheless, it would seem to me that there are balancing factors which

must be taken into account. It is one thing to enter into an agreement in the
cold light of day to be a sperm donor and another suddenly to realise that a

45
child of your own has been born. Given the high intelligence of the appellant
which seems to be conceded by the learned High Court judge and the general
calm and serious way he gave evidence particularly under cross-examination, I
do not consider it would be at all right to assume that this intrusive behaviour
caused by over excitement and over exuberance at the time of the birth
which unfortunately resulted in friction, need necessarily lead to any
disobedience of or lack of respect for whatever final order may be made in
these proceedings whether by this court or by the High Court, if the case is
returned there.

A meeting took place on the 8th October, 2006 some months after the birth in
Farmleigh. The trial judge’s finding is that “the meeting was polite”. The
baby was present. At the end of the meeting, the appellant quite reasonably
suggested that he would like to see the baby again and he further suggested
that future meetings with the baby would take place once a month on the
first weekend. That suggestion can well be characterised as avuncular rather
than parental. Unfortunately, though in my view without fault, the appellant
in making this suggestion used the word “access”. Curiously, the judge does
not make any express finding based on the evidence as to the reaction to the
word. Rather he says in the judgment that “the use of this word according to
the respondents’ counsel in cross-examination ‘froze their blood’.” While I do
not find any fault in the use of the word despite its unfortunate results for the
appellant, the immediate reaction of the respondents was understandable.
They suspected that the appellant had taken legal advice and one could
hardly fault that conjecture. Even though the suggestion of a monthly contact
was not on the face of it all that unreasonable, the respondents in their
indignation did not agree to the proposal. Again, it seems doubtful to me that
this unfortunate incident should necessarily be of any relevance to a
consideration of the post-judgment relationship between the parties.

In actual fact a further meeting of the appellant and the respondents took
place in Clontarf Castle Hotel on the 14th November of the same year. That
meeting was not a happy one either particularly as the appellant apparently
and mysteriously demanded a paternity test. Again, there was probably a
feeling that this resulted from legal advice. He was in fact told by the
respondents that there was no need. The appellant, at this meeting, however
seems to have become more aggressive. The learned High Court judge has
found that he stated “I am a father. I have rights”. This strengthened the
view of the respondents that he had changed from the agreed role of uncle to
that of father. It is only fair to say that in his evidence the appellant does not
really deny this. He did feel after the birth that he had some parental rights.

What brought matters completely to a head was the talk of moving to

Australia. Although there was some uncertainty as to the evidence about this,
the finding of the learned High Court judge seems to be that the appellant
was told by the second-named respondent that the respondents would be
going to Australia from early January until March, 2007. In the event due to
first-named respondent’s illness, departure was postponed until March. The
information was given to the appellant at a meeting in the licensed premises
in Clontarf “The Yacht” on the 22nd November, 2006. That meeting was with

46
the second-named respondent only. At the meeting, she suggested that the
best course of action would be if the appellant “backed off and gave them all
some space”. There was apparently no further communication until a
telephone call from the second-named respondent on the 20th March, 2007 to
arrange to meet the appellant before they departed for Australia on the 24th
March. At that stage, they had decided to go to Australia for one year with
the second-named respondent taking up a temporary post. There is some
suggestion that the appellant may have been aware of an intermediate plan
to go to Australia for eight months by virtue of some email which was sent in
January, 2007 to a neighbour who might look after their dog. I do not think
that anything turns on this point. What is clear is that once there was the
intimation of intended departure to Australia for a year, the appellant had
recourse to the courts.

Even on the basis of the limited relationship which it was intended by the
agreement, the appellant should have with his child and particularly having
regard to the necessity, as he would see it, to build up a relationship, a
departure for Australia particularly for such a lengthy period was quite
reasonably seen as a major problem from the appellant’s point of view. That
is one side of the equation. On the other hand, in the ordinary way a couple
living together and bringing up a child as their own child effectively could not
be prevented from making reasonable travel and even in some circumstances
emigrating, if it was reasonable in all the circumstances. There are many
ways in which an “uncle” may keep up contact with
a “nephew” or “niece” living abroad. Traditionally, there would be
correspondence, the sending of presents at birthdays and Christmas etc. and
when the child would be a bit older, telephone conversations. Nowadays not
only can there be text messages and emails but, as was explained to the trial
judge rather, to his surprise, there can be skipe leading to visual
communications. While expense might prove prohibitive there would be
nothing, as such, to prevent the appellant visiting Australia from time to
time. This kind of discussion however may be wholly academic. First of all, I
do not know what the present intentions are. Secondly, there is nothing in the
evidence to suggest any intention permanently to emigrate. On the contrary,
the arrangements relating to the dog would seem to clearly indicate
otherwise. It would be inappropriate to discuss the topic any further. If it has
to be dealt with by a court, the High Court is the proper forum.

In summary, as I see it, the learned High Court judge was correct to refuse
guardianship. I have already given my reasons for that view. Access is quite
another matter. In my view the case should be returned to the High Court as I
indicated for issues of access to be considered, if necessary. I emphasize “if
necessary” because I believe that the primary role of the High Court judge
should be to facilitate agreement between the parties on this matter. I have
the firm impression that all of these parties are reasonable people in the
ordinary way and I would very much hope that there can be a restoration of
good relations. I take the view that the learned High Court judge erred in
following the advice of Dr. Byrne without considering properly whether the
bad relations between the parties would necessarily continue after a final
decision by the court. He should not have assumed such continuance. In N. v.

47
Health Service Executive [2006] 4 I.R. 374, this court (as is summarised in
paragraph 8 of the head note) disapproved of the trial judge attempting to
assess the probabilities as to whether there would be co-operation between
foster parents who had custody of a child originally intended for adoption or
not in a phased transfer of custody back to the natural parents based to the
uncooperative attitude between them. The court held that the issue of what
was to happen if the court’s preferred solution of transferring the custody was
thwarted afterwards was not something which that should concern the court
in making its decision. The court further held that on the evidence such
assessment could not have been made. In the event the court was informed
that there was good cooperation. To my mind, the situation in this case is not
all that dissimilar. There is no reason to believe that either the appellant or
the respondents will not respect and indeed cooperate with whatever final
order in relation to access may be made by the High Court. If the access issue
had no extraterritorial aspect, the order of Sheehan J. might well prove a
good precedent. It still is, of course, but I recognise that there is the added
problem of Australia. With goodwill and with encouragement and assistance of
the High Court, if this case is returned as I think it should be, a reasonable
solution to that problem, if it exists, may be achieved.

Accordingly, I would dismiss the appeal in so far as it relates to guardianship

but I would allow the appeal in so far as it relates to access, such access to be
determined by or under the supervision of the High Court.

48
Judgment by: Fennelly J.
Status of Judgment: Approved

JUDGMENT of Mr. Justice Fennelly delivered the 10th day of

December 2009.

1. This appeal concerns the rights of the biological father of a male child
(hereinafter “the child”), born as a result of sperm donation and artificial
insemination as well as the rights of the child. Sperm was provided to the
child’s mother who is in a long-term same-sex relationship with another
woman.

2. By Order dated October 24th 2008 the Attorney General was joined by this
Court as a notice party to the proceedings, having regard to the significance
and novelty of the legal issues. The Attorney has made important written
submissions on a number of the key issues. Some of these issues were not fully
considered in the High Court.

3. The appellant is the father. The first-named respondent is the mother of

the child; the second-named respondent is her female partner. I will refer to
the appellant as the father. I will refer to the respondents as P.L. and B.M. or
together as the respondents. On occasion, I refer to P.L. as “the mother.”

4. By judgment of 16th April 2008, Hedigan J. after a hearing lasting fourteen

days in the High Court refused the father’s claims for guardianship and/or
access to the child.

The Facts
5. The evidence given in the High Court covered at great length and huge
detail the entire history of the relationship between the parties, especially
the arrangements they entered into for the provision by the father of his
sperm, the ensuing events leading up to the birth of the child and then the
later emergence of disagreements, conflict and complete rupture of
relationships. Hedigan J. resolved disputed issues of fact, mostly in favour of
the respondents. While the father contests a number of the findings, the
broad outline of the facts is clear enough. I do not think it is relevant to trace
in detail the history of the relationship between the father on the one hand
and the respondents on the other hand. The legal issues in the case do not
depend on who was right or wrong on each issue.

6. The father is a single gay man, aged 41 years. While he lived for some years
in the United States, he has lived in Ireland for some ten years and has
worked in the area of design.

7. P.L. is of Australian nationality. She is 42 years of age. She is qualified as

an occupational therapist. B.M. is Irish, aged 53; she is a psychiatrist.

49
8. P.L. and B.M. met in London in the mid-1990s. They entered into a lesbian
relationship and have lived together as a same-sex couple in a stable
relationship since about 1996. They moved to live in Dublin about 2003, but
travelled to London to enter into a form of Civil Union under English law at a
ceremony in London on 27th January 2006.

9. The respondents saw themselves as a couple in a permanent relationship

and wished to have a child. Their intention at all times was that the child
would be part of a family in which they would be the sole parents. On the
other hand, they did not wish to use an anonymous sperm donor. The donor
would be known and his identity would (ultimately) be disclosed to the child.
He would not have any parenting role. His role would be that of “favourite
uncle.” He would have contact with the child only at their discretion.

10. The respondents informed themselves about artificial insemination by

sperm donation. P.L. was to be the mother. They discussed their wishes with
friends and approached a number of males, including a friend living in
Amsterdam. They entered into a written agreement with him. Attempts by
P.L. to conceive from the sperm of this friend over the years from 2003 to
2005 were unsuccessful.

11. The respondents first met the father very briefly at a party in Dublin in
December 2004. The possibility of his becoming a sperm donor was raised but
not very seriously.

12. After Christmas the father met the respondents. They had more
significant discussions. They gave him a copy of a book about Lesbian
Parenting. There was a dispute about whether they also gave him what was
described as a draft of the agreement he would be asked to sign. In fact, this
was a copy of the agreement they had made with the Amsterdam friend. The
respondents said that they had given him this in January. The father said that
they had not or did not remember. The learned trial judge found in favour of
the respondents.

13. There was some controversy about whether the father read the book
about Lesbian Parenting. The learned trial judge criticised him for not reading
it sufficiently, in particular those parts which dealt with the relationship
between the sperm donor and the child. The father’s evidence was that he
did not like aspects of the book, especially those parts which suggested that
the donor would not have any role. He accepted that he had not read the
book through. The father blew hot and cold about the whole project during
the early months of 2005. His uncertainty was undoubtedly related to the crux
of what became the dispute between the parties, namely the extent to which
he, as donor, would have any involvement with any child that would be born.
He told the respondents about March that he would not go ahead. It has to be
said that the respondents were always very clear about the matter. They
alone would form a family unit with the child, who would have two female
parents. The donor would not be anonymous, but neither would he play the
normal role of father. He would have no parenting role.

50
14. There was occasional contact between the parties in the early months of
2005. The father had some health tests done and informed the respondents of
the results.

15. In July 2005, the father approached the respondents again. On 9th August,
2005, he met them at their home. The agreement (the first draft so far as the
father was concerned, the second according to the respondents) was printed
from P.L.’s computer. It was not signed at that stage. It was amended to
insert the father’s name and to substitute the word “friend” for “long term
friend.”

16. The father provided sperm samples on 9th, 10th and 11th August. P.L.
inseminated herself. At the end of August the father visited P.L. She informed
him that she was pregnant.

17. The draft agreement was amended at the father’s suggestion by the
inclusion, at the end, of a provision relating to the eventuality of the death of
the respondents.

18. The agreement was, substituting the designations the father, P.L. and
B.M., for their actual names as follows:

“Agreement on Sperm Donation by the father to P.L. and B.M.

P.L. and B.M. have lived together as a couple for over 7 years and decided
that they would like to have a child. The father 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 the father is his/her biological father. The child will
be encouraged to call him [name given]

Birth Certificate:

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

Parental Role:

A agrees that the child’s parents are P.L. and B.M. The father 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:

51
The father will be welcome to visit P.L., B.M. and their child at mutually
convenient times. This will be at the discretion of P.L. and B.M. The father
wants to make sure that the child will establish a solid relationship with P.L.
and B.M., as parents and will not want to interfere with this in any way.

Financial obligations:

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

Child’s contact with the father’s extended family:

The child’s extended family will be the extended families of P.L. and B.M.
Contact with the father’s extended family will be at the discretion of P.L. and
B.M.

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

This agreement was drawn up at [address]”

19. The agreement in that amended form was signed by the father, P.L. and
B.M. on 11th September, 2005.

20. The agreement purported to lay down rules governing in advance the
relationship between the child and the father, on the one hand, and the
respondents on the other. It is drafted to give effect to the respondents’
intentions and understanding of the entire set of relationships. P.L. and B.M.
are to be the parents, “fully responsible for the child’s upbringing.” The
father, at most, is to be a “favourite uncle.” While he would like to have
“some contact” he has no obligations in that regard and any visits are to be in
the discretion of P.L. and B.M. Perhaps the most explicit provision for the
father is that: “He will not have any responsibility for the child’s upbringing
and will not seek to influence the child’s upbringing.”

21. None of this is to say that the agreement is legally binding. That needs to
be considered at the level of legal principle, taking account especially of the
interests of the child.

22. It emerged over the following periods covering the time before the birth
of the child, but especially afterwards that the respondents had a very
different and restrictive view of the extent to which the father could involve
himself in their lives and the life of the child.

23. Relations remained comparatively amicable during the mother’s

pregnancy. Even then, there was an occasion when the mother was unhappy
that the father permitted a visiting American friend of his to refer to the

52
prospect that the expected child would be fortunate in having three parents.
The mother complained that the father should have corrected this
misperception.

24. After the birth, matters deteriorated almost from the beginning. It seems
clear that the father acted insensitively. He brought a video camera to the
residence and filmed the child. He involved members of his own family, whom
he brought to visit. He initiated visits, even when the mother was suffering
from the after effects of childbirth. The father complained sharply (though he
later apologised) when the mother declined to meet himself and his sister
who had driven up from Wicklow. He visited every week up to the end of July.
The respondents went on holiday to Kerry in August and reviewed and
discussed the entire relationship. The learned trial judge described the
situation, as it developed, in the following terms:

“They considered the father. was being intrusive. He kept inviting himself,
albeit politely. Before he would leave he would make an arrangement for the
next time. This then meant they had to keep that time free. Before the birth
they had only met once a month. After that there was pressure to be
meeting weekly. They concluded that the father had stepped over the line as
it were, that he was no longer behaving as an uncle and was intruding in
their family life.”

25. The respondents decided to confront the father. They deliberately

arranged to meet him at a hotel rather than at their home. They met at the
Marine Hotel in Sutton in September, 2006. The respondents told the father
that he had overstepped the boundaries as they saw them, that they had no
interest in continuing a relationship with his family and that it would be
better if he did not have any more contact. They were concerned that he was
portraying himself as a father, rather than staying in the role of uncle as
agreed.

26. The parties met about a month later at Farmleigh House. The father was
allowed to hold the child for a short time. He suggested meeting on the first
Sunday of every month. They disagreed: that was too much. At a later
meeting at a hotel, the father was told to “back off.” He was not wanted.
There was no contact after November 2007.

27. After the birth of the child the two sides had very different approaches
and understandings. In the context of the agreement that had been made, the
father’s participation as a sperm donor and the relationship between the
respondents, the father was motivated by his biological parenthood, while the
mother and B.M. saw themselves as a family unit with the child, excluding the
father.

28. The father had, of course, accepted that, as a “favourite uncle” at best,
he would have no parenting role and that he would have no say in and would
not seek to influence the child’s upbringing. He accepted, as he had to, that

53
he was now seeking to have a say, including a role as guardian. He had clearly
come round to the view that he should be recognised as the father.

29. The respondents regarded it as crucial that they be accepted as a fully

autonomous family unit, free from any outside interference; it was crucial
that they be seen as the only parents of the child. The child had two parents:
the mother and B.M., although, of course, B.M. had played no biological role
in his birth.

30. Not surprisingly, there was a complete breakdown of mutual trust. To a

large extent, this has to be laid at the door of the father. He frankly accepted
that he had changed his position as it had been at the time of the agreement.
The learned trial judge criticised the father severely on this ground.

31. At one point, the learned trial judge went so far as to find that the father
had deceived the respondents as to his true intentions in entering into the
sperm-donation agreement. In reaching this conclusion, he disagreed with the
opinion of Dr. Gerard Byrne, as expressed in his report. The father challenges
this finding on this appeal. I have been unable to find, in my reading of the
transcripts, any point at which this was put to the father, namely the
accusation that that he had deceived the respondents. It is true that P.L., at
one point in the course of a long answer, spoke about being “tricked or
deceived,” but without saying in what respect. Dr. Byrne dealt with the
respondents’ complaints in his report. I do not think, therefore, that there
was evidence before the learned trial judge to support his finding that the
father had deceived the respondents as to his intentions at the time he
entered into the agreement. I do not think it is fair or just to make a finding
of dishonesty, without its having, at least been put to the person accused.
This finding might not be of particular importance standing on its own.
However, the learned trial judge, in the course of the hearing interpreted a
crucially important aspect of Dr. Byrne’s evidence, namely that there was no
rational basis for the mother’s feeling of being violated by the father
(discussed later) as being based on a belief that the father had deliberately
misled her. Thus, his own conclusion that the father had in fact deliberately
misled her and had “used her as a surrogate mother” meant that, in the view
of the learned judge, as distinct from that of Dr. Byrne, the mother had a
rational basis for feeling violated by the father.

32. Nonetheless, the fact remains that the father, as the learned trial judge
correctly found, and as he himself accepted, departed from the understanding
agreed with the respondents. He was not prepared to respect the
respondents’ wish to exercise total autonomy as a family with the child. He
wishes and seeks in these proceedings to exercise parental rights as guardian
of and to have access to the child.

33. The real issue is, of course, whether the father should be appointed as
guardian or be permitted any access to or contact with the child. Normally
the conflicts between the father and the respondents should not have any
great bearing on the determination of that question.

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Evidence of Child’s Welfare
34. On 30th March, 2007, Abbot J. made an order appointing Dr. Gerard Byrne
as assessor for the purpose of preparing a report pursuant to section 47 of the
Family Law Act, 1995. Dr. Byrne is a child psychiatrist of national and
international standing. He prepared a comprehensive report pursuant to
section 47 and gave evidence in the High Court.

35. Dr. Byrne interviewed all parties, including the child. He believes that a
child should normally have knowledge, as part of the formation of his or her
identity, of both parents, in the absence compelling reasons to the contrary.
Access should be such as to allow a meaningful relationship to develop. This is
clearly an important opinion and seems to be the starting point for
consideration of the welfare of the child.

36. Dr. Byrne believes, on the other hand, that the child has no relationship
with the father other than a biological one. Upon the arranged meeting the
child did not recognise the father, nor did he exhibit any attachment
behaviour. This does not surprise Dr. Byrne because the father has not been
with the child since his birth for any appreciable length of time and has never
been in a caretaking relationship.

37. Dr. Byrne, on the other hand, expressed interesting views regarding the
father’s situation. His advice would be that a sperm donor should act
anonymously without having any contact. If there is contact, once a father
sees a baby, it would be “beyond reasonableness,” and “beyond what a man
in that circumstance would be capable of” for him not to wish to be involved.

38. Dr. Byrne does not favour access by A at this stage in the child’s
development. He would postpone first contact until approximately the age of
six and then based on introduction by the mother and B.M. At this stage it
would be very difficult to introduce him to an effective stranger. It would be
a struggle for everyone and might not last. Dr. Byrne attaches particular
importance to the mother’s attitude to the father. There was never anything
approximating to a family type situation involving the father. The mother
feels “violated” by the father: he had invaded her integrity. This is a very
powerful emotion. It goes beyond being angry.

39. The child’s primary attachment is to the mother. It is important for the
child’s upbringing that this be maintained and optimised. The mother
perceives the father as representing a threat to her relationship with the
child. It also poses a threat to the perception by /the mother. and B.M. of
themselves as constituting a family unit with the child. Dr. Byrne’s conclusion
is that any access arranged for the father would engender tensions in the
relationship between the mother and B.M., which would be bound to
communicate itself to and be damaging to the child. Children will pick up the
psychological climate. He does not believe the mother and B.M. could ever
cooperate with the child in a manner which would not be damaging to the
child.

55
40. Dr. Byrne took particular note of the mother’s belief that the father was
deceitful and calculating in making the sperm donation, but says that he is
not convinced that he was deceitful; rather he believes that he had not really
thought the matter through. Dr. Byrne is of opinion that the father should not
have any role in the child’s life “that gives him rights that could interfere
with the child’s family life” with the respondents.

41. Dr. Antoinette Dalton, a specialist in child and adolescent psychiatry was
called as a witness on behalf of the father. Dr. Dalton had interviewed the
father, but was severely disadvantaged by the fact that she had not met the
mother or B.M. Nor had she seen the child. She said that it was an unusual
circumstance to feel violated without a reason. It was at this point in her
evidence that the learned judge intervened to point out that this view of Dr.
Byrne had been based on the assumption that the father had not deliberately
misled the mother and referred to her feeling like a surrogate mother. Dr.
Dalton pointed out that there was no question of that: the mother had had
the child and there had been no question of his being taken away from her.

42. The key point of disagreement between Dr. Dalton and Dr. Byrne was that
Dr. Dalton had difficulty in accepting his view that the introduction of the
father to the child should be postponed to the age of six. It did not make
sense to deprive the father and the child of each other’s society for four and
a half years. She thought that these were the formative years, a very intense
time, when the child develops physically and mentally and develops skills.
They are important years for the child and for the relationship and that it
would be dangers in introducing a significant adult when the child had passed
toddlerhood. She thought the father should see the child two to three times a
week to build a relationship.

43. On the other hand, Dr. Dalton expressed concern as to the possible loss of
trust by the child, as a more mature child, a teenager, if the mother and B.M.
were to keep from him the true facts of his parentage.

44. Dr. Byrne and Dr. Dalton were in agreement that there is general
acceptance that children are not at a significant disadvantage from being
brought up by a same-sex couple. They also agreed that the father is a caring,
responsible person, who has the best interests of the child at heart. These
remarks should not, of course, be regarded as conclusive on the issue of
children being brought up by same-sex partners. The learned trial judge
acknowledged the “psychological challenge growing up with same sex
parents.”

Interlocutory Proceedings
45. The dispute between the parties came to a head in early 2007, when the
respondents wished to go to Australia. It was then that the father consulted
Dr. Antoinette Dalton.

46. On 22nd March, 2007, the father issued the Plenary Summons which
commenced the present proceedings. The principal relief sought is:

56
• appointment of the father as guardian of the child pursuant to s. 11 of the
Guardianship of Infants Act, 1964;

• an order pursuant to the same section giving him joint custody;

• an order regulating the father’s access to the child.

47. On 22nd March, 2008, the father applied ex parte to the High Court for an
order restraining the respondents from removing the child from the
jurisdiction. This was based on an understanding that the mother had
obtained a residency permit permitting her to go to Australia and a belief that
the child was about to be taken to Australia. In fact, it emerged that they
wished to go for a year so that B.M. could take up a temporary senior staff
position as a psychiatrist.

48. On 22nd March, 2008, Abbot J. granted an interim injunction restraining

the respondents from removing the child from the jurisdiction. On the
following day, the learned judge vacated that order and made an order:

• granting liberty to the respondents to take the child for a vacation in

Australia from 25th March to 9th May 2007;

• on the child’s return to the jurisdiction, that the respondents be restrained

from further removing the child from the jurisdiction pending the hearing of
the action.

49. The respondents appealed the order of Abbot J. of 23rd March, 2007, to
this Court. On 19th July, 2007, this Court dismissed the appeal. Denham J.
delivering the judgment of the majority of the Court emphasised that “the
critical factor in the balancing required of the Court………is the welfare of
the infant.” She stressed that the fact that the decision had been made on
the basis of the balance of convenience meant that “it should not be inferred
as presuming rights for the applicant.”

High Court Judgment

50. The principal features of the careful and comprehensive judgment of the
learned trial judge are as follows:

1. While the agreement might constitute a valid contract, it is enforceable

only to the extent that the rights or welfare of the child are not prejudiced;

2. The mother of the child enjoys a personal constitutional right to the

custody of the child: the court should presume that the mother will act in the
child’s best interests;

57
3. The father, as sperm donor, has a mere right to seek appointment as
guardian; he has no right, even a defeasible one, to be so appointed; in order
to establish the extent of the father’s rights, the court should look for factors
other than the blood link, which is of little weight; at all times the welfare of
the child is paramount.

4. While there cannot be discrimination against a non-marital child by denial

of access to his father, the child’s welfare is the first and paramount
consideration;

5. The mother , B.M. and the child constitute a de facto family, enjoying
rights as such under Article 8 of the European Convention on Human Rights
and Fundamental Freedoms (hereinafter “the Convention), which are
cognisable in Irish law; the learned trial judge relied on the decision of the
European Court in X, Y and Z v. U.K. [1997] 24 E.H.R.R. 143, as demonstrating
a“substantial movement” towards a finding that a same-sex couple could
constitute a family;

6. Because the mother, B.M. and the child enjoy rights as a de facto family,
this is a factor which must come into play in determining the central
question, namely whether the father should be granted guardianship rights
such as would ensure he had access to the child;

7. In considering the application of the father for guardianship and access to

the child, the welfare of the child was the first and paramount consideration.

a. In giving effect to that consideration, the court should give considerable

weight to the report prepared by Dr. Gerard Byrne, as a court-appointed
expert, pursuant to s. 47 of the Family Law Act, 1995 and should depart from
it only for “grave reasons which should be clearly set out.” The expert
nominated by the court should, save in certain exceptional circumstances, be
preferred to that of an expert witness called by one party;

b. While , “in general it is beneficial for a child to have access to both its
natural parents, there may be circumstances where this is not so;” Dr. Byrne
considers such circumstances to exist here;

c. The respondents feel huge distress at what they perceive to be the

father’s betrayal; they feel this to be destructive to “their integrity as a
family;” this “feeling of violation…… is a very important and fundamental
matter”;

d. Dr. Byrne believes that the parties could not co-operate in such a way as
would avoid exposing the child to conflict; conflict between adults causes
psychological damage to a child;

e. While Dr. Byrne did not agree with the mother and B.M. that the father
had deceived the respondents as to his true intentions at the time he
entered into the sperm-donation agreement, the learned trial judge found

58
that he had; thus, the respondents had substantial grounds for their feelings
of betrayal and violation;

f. The learned trial judge considered that Dr. Dalton’s evidence dealt
superficially with the central point of Dr. Byrne’s thesis, as summarised at
paragraphs b, c and d above: he described her approach as being that the
parties should just “get on with it.” He thought she had failed to “engage
with the real problem which is whether the “getting-on-with-it” in such
circumstances is actually possible without causing more harm than good;”

g. It seems important to quote in full the passage which led the learned trial
judge to conclude that the child’s “welfare would be best served by his
continuing in the care, custody and guardianship of his family composed of
P.L. and B.M. and that there should be no court ordered access to the
applicant…” He reasoned as follows:

“The child currently lives in a loving, secure de facto family. There is no

dispute but that the respondents are excellent parents to this child and the
psychological evidence before the Court is that whilst he will encounter some
problems growing up as the child of a same sex couple, he should suffer no
gender confusion as a result thereof. As things stand, the child’s future
seems secure in a well ordered, loving and supportive family environment.
Set against that 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, access or both of the
applicants. Were the Court to order the latter, I have no doubt the parties
would do their best to implement the order. What, however, would be the
cost to the child? It seems to me the cost is likely to be the loss of a tranquil
and calm upbringing. I further note the evidence of the respondents which I
believe to be entirely genuine that their wish is that the child should know
the identity of his biological father – that after all was the whole point of
this agreement – and that he should have contact at an age appropriate time.
I must further note Dr. Byrne’s doubts as to whether the applicant would
remain involved.”

The Appeal
51. The father’s objectives in the appeal are to obtain an order appointing
him as guardian, jointly with the mother, of B.M. and orders granting him
access to the child.

52. Ms. Inge Clissman, Senior Counsel, presented the appeal on behalf of the
father. She said that the father is asking to be appointed guardian, pursuant
to s. 6A of the Guardianship of Infants Act 1964 (as inserted by s. 12 of the
Status of Children Act 1987), and to have access to the child, but not custody.
These are rights of a parental nature. He seeks the benefit of the company of
his child and for his child to have his company as he grows up. This is in the
interests of the child. She acknowledged that these reliefs go beyond the
“favourite uncle” role envisaged by the agreement. However, he had always
thought that the agreement would permit him some involvement with the
child. He had had no legal advice; the agreement was prepared by the

59
respondents, based on the document used in connection with the friend living
in Amsterdam. The father could not have foretold what his reaction would be
upon the birth of the child. Ms. Clissman drew attention especially to the fact
that the learned trial judge had dealt with the respondents as constituting
a de facto family unit. This has no standing in Irish law. She said that the
judge had accorded unprecedented weight to Dr. Byrne’s s. 47 report.

53. Ms. Mary O’Toole, Senior Counsel, on behalf of the respondents,

submitted that the learned trial judge had based his decision on the best
interests of the child. Regarding his treatment of the s. 47 report, she said it
was a matter of the weight to be accorded to the evidence. The learned trial
judge had carefully examined the evidence of the two psychiatrists and had
found Dr. Byrne to be more persuasive.

54. The Attorney General has made written submissions in respect of: a) the
interpretation and application of the Convention; b) the status of the
agreement on sperm donation; c) the weight accorded by the learned trial
judge to the s. 47 report. It is only fair to point out that the learned trial
judge did not have the benefit, as this Court has, of these important
submissions.

55. The first—and, it seems to me—fundamental point made by the Attorney

General is that the extended discussion of the Convention in the judgment of
the High Court was not self-evidently necessary for, or connected to, the
resolution of the case. The Attorney General cites a statement of McKechnie
J. in his judgment in T. v. O [2007] I.E.H.C. 326 to the effect that, after the
coming into force of the European Convention on Human Rights Act 2003, the
High Court should “apply the provisions of the Convention in the
interpretation and application of any statutory provision or rule of law in so
far as it is possible to do so in accordance with the established canons of
construction and interpretation.” However, the High Court judgment does not
identify any statutory provision or rule or law calling for interpretation in the
light of the Convention. Furthermore, the Attorney General remarks that it is
far from clear how the issue of the claimed threat to the respondents’ de
factofamily could arise. If the Court were to conclude that access by a
biological father was in the best interests of the child, then such conclusion
could not be overridden on the grounds that there was a non-marital
heterosexual family in existence. It is not apparent therefore how the
outcome of the case would be affected by a consideration of the status under
Article 8 of a homosexual couple. The Attorney General also examines the
High Court judgment at length and submits that the learned trial judge was,
in any event in error both in his approach and in his actual interpretation of
Article 8. The learned trial judge acknowledged that he was not aware of any
case to date in which the European Court of Human Rights had found that a
lesbian couple living together enjoyed the status of a de facto family.
Accordingly, it was not open to the learned judge to reach the conclusion
which he did, since the domestic courts do not have the primary function of
interpreting the Convention.

60
56. The Attorney General submits that the agreement is unenforceable insofar
as it puts in place an arrangement which is not in the best interests of the
child.

57. Insofar as the s. 47 report is concerned, the Attorney General submits that
despite the appointment of a court-appointed expert, the court must always
exercise its independent judgment. It may be appropriate to attach greater
weight to such a report than to a report commissioned by one of the parties
where there may be some risk of partisanship. However, the judge must
retain his own independence of judgment and he appears in this respect to
have unduly restricted his own function.

The Issues
58. The novelty of the case has led the parties to explore questions of law and
fact over a vast area. Some basic points are not, however, and could not be in
dispute. First among these is that the welfare of the child must at every point
be the overwhelming and governing consideration.

59. The following points need to be addressed:

1. The legal status of the agreement;

2. The rights of P.L., as the mother of the child;

3. The rights of the father as his biological father;

4. The legal status of the mother and B.M. as a “de facto” family, by virtue of
the Convention;

5. The judge’s treatment of the evidence regarding the welfare or best

interests of the child, in two key respects:

a. The status of Dr. Byrne’s report pursuant to section 47 of the Family Law
Act, 1995;

b. The judge’s consequent and crucial findings of fact and evaluation of the
psychiatric evidence regarding the best interests of the child.

60. The first two issues present no real difficulties. Ultimately, the crucial
questions relate to the extent to which the father should, if at all, have
access to or contact with the child, all parties accepting that the child’s
welfare must be decisive. Section 3 of the Guardianship of Infants Act, 1964
expresses in statutory form a universal human value that nobody could
contest, namely that:

“Where in any proceedings before any court the custody, guardianship or

upbringing of an infant……, is in question, the court, in deciding that
question, shall regard the welfare of the infant as the first and paramount
consideration.”

61
61. No party questions that principle in the present case. Disagreements arise
because parties view the child’s welfare from their own perspective. In such
cases the courts decide.

The Agreement
62. The learned trial judge did not rule on the contractual status of the
agreement. In reality, it was not necessary for him to do so. If such an
agreement is to be regarded as enforceable at all, he held, rightly, in my
view, that the agreement is enforceable only to the extent that the child’s
welfare is protected. The only material parts of the agreement relate either
directly or indirectly to the question of the father’s contact with the child, in
which case the welfare principle takes over and renders the agreement
redundant. The agreement purports to restrict and potentially to exclude
access by the father to the child, that is to say the child’s contact with or
society with his biological father. It seeks to control the development of any
relationship between the child and his father by making it absolutely
dependant on the discretion of the mother and B.M. It may, indeed, be right
to control or restrict that relationship. That cannot, however, be dictated by
an agreement made before birth between his two biological parents together
with a third person who has no biological link. As a matter of law, the
relationship between the father and the child must be dictated by the best
interests of the latter.

63. In this case the aspect of the welfare of the child which is in issue is his
relationships with his natural or biological parents and with the respondents
insofar as it is claimed that they constitute ade facto family. The relationship
between the child and P.L., his mother, and her right to custody is
undisputed.

Constitutional Right of the Mother

64. Our law ascribes particular importance to the unique role and consequent
unique natural right of the mother of a child. The learned trial judge cited a
well-known passage from the judgment of O’Higgins C.J. in G. v. An Bord
Uchtála [1980] I.R. 32 at 55:

“But the plaintiff is a mother and, as such, she has rights which derive from
the fact of motherhood and from nature itself. These rights are among her
personal rights as a human being and they are rights which, under Article 40,
s.3, sub-s.1,[of the Constitution] the State is bound to respect, defend and
vindicate. As a mother, she has the right to protect and care for, and to have
the custody of, her infant child. …… This right is clearly based on the natural
relationship which exists between a mother and child. In my view, it arises
from the infant’s total dependency and helplessness and from the mother’s
natural determination to protect and sustain her child”.

65. The right here recognised is a personal right protected by Article 40 s. 3 of

the Constitution. Articles 41 and 42 apply only to families founded on
marriage. Section 6(4) of the Act of 1964 provides statutory support for the

62
constitutional position of the mother: “The mother of an illegitimate infant
shall be guardian of the infant.” The father has consistently accepted and
does not in these proceedings dispute the right of the mother to guardianship
and custody of the child. He does not question her fitness as a mother or the
quality of her care for the child in any respect whatever.

Position of the Natural Father

66. The third issue raises in an unprecedented form the extent, if any, of the
rights or interests of a natural father to be appointed as guardian or to be
permitted access. 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 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”.

67. In addition, s. 11(4) of the Act of 1964, as amended by s. 13 of the Act of

1987 provides:

“In the case of an infant whose father and mother have not married each
other, the right to make an application under this section regarding the
custody of the infant and the right of access thereto of his father or mother
shall extend to the father who is not a guardian of the infant, and for this
purpose references in this section to the father or parent of an infant shall
he construed as including him.”

This Court has considered the rights or interests of a natural father in two
leading cases.

68. In J.K. and V. W. [1990] 2 I.R. 437 at 446, Finlay C.J., with whom Walsh,
Griffin and Hederman J.J. agreed, disapproved in clear terms the test which
had been propounded by Barron J. in the High Court in that case, namely
that, if the natural father was fit to be appointed a guardian, then the
question was “whether there are circumstances involving the welfare of the
child which require that, notwithstanding that he is a fit person, he should
not be so appointed.” This Court held that Barron J. had misinterpreted s. 6A
of the Act of 1964, quoted above, on the rights of the natural father.

69. The statements of Finlay C.J. on the relationship generally between the
status of the natural father and the welfare of his child are authoritative and
constitute a binding statement of the law for the instant case. He said at page
446 of the report:

“Section 6A gives a right to the natural father to apply to be appointed

guardian. It does not give him a right to be guardian, and it does not equate
his position vis-à-vis the infant as a matter of law with the position of a
father who is married to the mother of the infant. In the latter instance the
father is the guardian of the infant and must remain so, although certain of

63
the powers and rights of a guardian may, in the interests of the welfare of
the infant, be taken from him.”

70. The natural father thus had “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.”

71. The Chief Justice directly addressed the test proposed by Barron J. in the
following trenchant terms:

“A right to guardianship defeasible by circumstances or reasons "involving

the welfare of the child" could not possibly be equated with regarding the
welfare of the child as the first and paramount consideration in the exercise
by the court of its discretion as to whether or not to appoint the father
guardian. The construction apparently placed by the learned trial judge in
the case stated upon s. 6A to a large extent would appear to spring from the
submission made on behalf of the applicant on this appeal that he has got a
constitutional right, or a natural right identified by the Constitution, to the
guardianship of the child, and that the Act of 1987 by inserting s. 6A into the
Act of 1964 is thereby declaring or acknowledging that right.

“I am satisfied that this submission is not correct and that although there
may be rights of interest or concern arising from the blood link between the
father and the child, no constitutional right to guardianship in the father of
the child exists. This conclusion does not, of course, in any way infringe on
such considerations appropriate to the welfare of the child in different
circumstances as may make it desirable for the child to enjoy the society,
protection and guardianship of its father, even though its father and mother
are not married.”

72. The Chief Justice observed, at page 447 that:

“The range of variation would, I am satisfied, extend from the situation of

the father of a child conceived as the result of a casual intercourse, where
the rights might well be so minimal as practically to be non-existent, to the
situation of a child born as the result of a stable and established relationship
and nurtured at the commencement of his life by his father and mother in a
situation bearing nearly all of the characteristics of a constitutionally
protected family, when the rights would be very extensive indeed.”

73. He concluded:

“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.

64
“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”.

74. The theme of the “blood link” was taken up by Hamilton C.J. in W.O’R. v.
E.H. [1996] 2 I.R. 248 at 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 will 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”.

75. Denham J. in her judgment in the same case, at page 273, spoke of the
weight to be given to the blood link in identical terms.

76. The legal position as it emerges from these cases is that the natural or
non-marital father:

1. has no constitutional right to the guardianship or custody of or access to a

child of which he is the natural father;

2. has a statutory right to apply for guardianship or other orders relating to a

child; this entails only a right to have his application considered;

3. the strength of the father’s case, which is described in the three judgments
from which I have quoted as consisting of “rights of interests or concern,” will
depend on an assessment of the entirety of the circumstances, of which the
blood link is one element, whose importance will also vary with the
circumstances; in some situations it will be of “small weight;”

4. both Hamilton C.J. and Denham J. spoke of de facto families in the context
of an application for guardianship pursuant to the Act of 1964 and only in the
sense of a natural father living with his child and unmarried partner in an
ostensible family unit; a de facto family does not exist in law independent of
the statutory context of an application for guardianship;

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5. The father’s rights, i.e., right to apply, if any, are in all cases subordinate
to the best interests of the child.

77. The notion of “rights of interest or concern” has not been further
analysed. In its context, it is an expression designed to lay emphasis on the
interests of the child and not to confer any distinct rights on the father.

78. The blood link is an unavoidable biological fact. Equally, it exists outside
marriage in situations as diverse as human life itself. In our changing society,
many children are born into apparently normal and stable family situations,
though the parents have never married. At the other extreme, a child may be
the fruit of an act of casual lust or commerce or, worse, an act of violence.
Advances in science have made it possible for conception and birth to take
place even without any act of human intercourse. It is both right and natural
to have particular regard to the context of conception, birth and subsequent
family links.

79. Although it is not suggested, in the present case, that the father is any
less the biological father of the child by reason of being a sperm donor, he
has, as a non-marital father, no constitutional right to guardianship or
custody. The principle is that he has the legal right to apply and to have his
application considered. To the extent that Finlay C.J. and Denham J.
postulated a scale for assessment of “rights of interests or concern,” it seems
likely that the sperm donor would be placed quite low, certainly by
comparison with the natural father in a long-term relationship approximating
to a family.

80. The particular context of a sperm donor has not previously come before
our courts, though we were referred to a Scottish case where a Sheriff held a
sperm donor to have parental rights. Murphy J. referred to the matter in his
judgment in W.O’R. v. E.H., cited above, at page 286, as support for the
argument against recognition of the mere fact of fatherhood as conferring
constitutional rights. In my view, the matter must be viewed only by
reference to the interests of the child.

81. The blood link, as a matter of almost universal experience, exerts a

powerful influence on people. The father, in the present case, stands as proof
that participation in the limited role of sperm donor under the terms of a
restrictive agreement does not prevent the development of unforeseen but
powerful paternal instincts. Dr. Byrne acknowledged that it would be “beyond
what a man in that circumstance would be capable of” for him not to wish to
be involved. More importantly, from the point of view of the child, the
psychiatrists were in agreement that a child should normally have knowledge,
as part of the formation of his or her identity, of both parents, in the absence
compelling reasons to the contrary. There is natural human curiosity about
parentage. Scientific advances have made us aware that our unique genetic
make-up derives from two independent but equally unique sources of genetic
material. That is the aspect of the welfare of the child which arises.

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P.L., B.M. and the Child as a De facto Family: the Convention

Status of the Convention in Irish law

82. I move then to consider whether the mother and B.M. should be
considered to constitute, together with the child, a de facto family,
recognised as such in Irish law by virtue of the Convention, as was found by
the learned trial judge. He referred to this matter at several points in his
judgment, most clearly as follows:

“Thus, this de facto family has such family rights as may arise under article 8
which do not conflict with Irish law. Where any conflict exists, Irish law must
prevail and the Court would be limited to the making of a declaration of
incompatibility under s. 5 of the European Convention on Human Rights Act
2003.

“I can find nothing in Irish law to suggest 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.
Indeed, it seems to me that the State has a strong interest in the
recognition, maintenance and protection of all de facto families that exist
since they are inherently supportive units albeit unrecognised by the
Constitution.”

83. The constitutional position was addressed in the case of W.O’R. v. E.H.,
cited above. Following the decision of this Court in J.K. and V. W., also cited
above, the Irish legal provisions were challenged in the European Court of
Human Rights. In Keegan v Ireland [1994] 18 EHRR 342, that court held that
Article 8 of the Convention was not confined to a family based on marriage.
The placing for adoption of the child of an unmarried father without his
consent amounted to an interference with his family life. This Court ruled in
W.O’R. v. E.H, in a passage cited by the learned trial judge, that Keegan was
not part of the domestic law of Ireland. Specifically, it held;

“The family referred to in Article 41 and 42 of the Constitution is the family

based on marriage. The concept of a ‘de facto’ family is unknown to the Irish
Constitution.”

84. Parental rights, other than those derived from the Constitution, are
governed by statute. Any consideration of the Convention in Irish law requires
reference to be made to Article 29, section 6 of the Constitution, which
provides that

“No international shall be part of the domestic law of the State save as may
be provided by the Oireachtas.”

85. The task of implementing the decision of the European Court of Human
Rights in Irish law lay with the Oireachtas. It took the form of the Adoption

67
Act, 1998. (see explanation in Shannon, Child Law, (Thomson Round Hall
2005) pages 302 to 304).

86. The learned trial judge does not appear to have addressed this
constitutional problem. He observes that “Irish law is silent on the question
of homosexual de facto families…” He then refers to the provisions of the
European Convention on Human Rights Act, 2003 before observing that “the
primary source for interpretation and application of the E.C.H.R. is the
domestic courts of the Member States.” He says that it is “the domestic
courts which have the primary obligation to interpret and apply the
E.C.H.R.” Articles 1 and 13, he said, “lay firmly and clearly upon the Irish
courts the duty to secure a remedy where required and apply the rights
contained in the Convention.” He does not, however, explain the legal basis
upon which, even accepting his interpretation of Article 8 of the Convention,
the court is empowered to apply the notion, not recognised by the
Constitution, of a de facto family in the law of the State. Throughout this part
of his reasoning the learned judge implies that Convention provisions and
principles impose obligations directly on the courts of the contracting states.
That assumption seems particularly to underlie the passage which I have
quoted at paragraph 86 above. The learned judge speaks of the possibility of
a declaration of incompatibility pursuant to section 5, in the event of conflict
with Irish law. In the absence of such a conflict, it seems that the “de facto
family has such family rights as may arise under article 8…” This is to
overlook the distinction between the international obligations of the State
pursuant to the Convention and its effect in domestic law. Under the
Constitution, only the Oireachtas has the power to give effect in “the
domestic law of the State” to the terms of an international agreement.

87. By virtue of s. 2 of the Act of 2003, the courts, when “interpreting and
applying any statutory provision or rule of law,” are obliged, “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.” The Attorney General submits that the High Court
judgment does not identify any statutory provision or rule of law which
required interpretation. As I have explained in the preceding paragraph, the
learned judge refers at a number of points to the power of the courts,
pursuant to s. 5 of the Act of 2003, to make an order declaring that a law is
incompatible with a provision of the Convention. However, no law is at any
point identified which might be so declared. While the lengthy and erudite
written submissions of the respondents support the decision of the learned
trial judge regarding the interpretation of Article 8, they do not at any point
explain how that Article comes to be applied in Irish law.

88. The High Court judgment does not provide any basis by reference to the
Act of 2003 or otherwise for the application in Irish law of the notion of de
facto family based on Article 8 of the Convention. It seems that the learned
trial judge effectively gave direct effect to the Convention. That is not
permissible, having regard to Article 29 of The Constitution. The Convention
does not have direct effect in Irish law. Thus, the learned trial judge was in
error in his application of the notion of a de facto family (comprising P.L.,

68
B.M. and the child). For these reasons, the learned trial judge should not have
considered Article 8 of the Convention. That should suffice to persuade the
Court to allow the appeal.

Interpreting the Convention: ECtHR or Domestic Courts

89. The Attorney General, as notice party, challenges the High Court
judgment on a distinct and alternative ground, to which I will now refer. This
ground does not, strictly speaking, arise unless I am incorrect in holding the
learned trial judge to have erred in giving direct effect, derived from Article 8
of the Convention, to the notion of a de facto family.

90. The learned judge acknowledged that he was 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.” The Attorney
General points out that the learned judge did not refer to the decision of the
European Court in Mata Estevez v. Spain, (Reports of Judgments and Decisions
2001-VI, p. 311, decision of 10th May, 2001), where the applicant, the
survivor of a male homosexual couple, had complained of the difference in
treatment regarding eligibility for a survivor’s pension between de
facto homosexual partners and married couples. In fact, the case does no
appear to have been cited in the high Court. Dealing with the case by
reference to Article 8, the European Court said:

“As regards establishing whether the decision in question concerns the

sphere of “family life” within the meaning of Article 8 § 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 towards 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 insofar as that provision protects the right to respect for
family life.”

91. The latter part of that passage undoubtedly leaves the door open for
further development. In the case of Karner v. Austria [2004] 38 EHRR 24,
cited by the respondents, the Court preferred to deal with a case brought by
a homosexual as one of discrimination pursuant to Article 14 combined with
Article 8. In doing so, the court abstained from ruling on questions of “private
life” or “family life” because, it held, “the applicant's complaint relates to
the manner in which the alleged difference in treatment adversely affected
the enjoyment of his right to respect for his home…” Thus Mata
Estevez remains undisturbed.

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92. However, the learned trial judge cited X, Y and Z v. U.K. [1997] 24
E.H.R.R. 143, and decided, thus, before Mata Estevez, in support of the
existence of “substantial movement” towards recognition of a lesbian couple
live together in a long term committed relationship as constituting a de
facto family enjoying rights as such under Article 8 of the E.C.H.R. That case
concerned a female-to-male transsexual living with a woman who had given
birth by artificial insemination. The court noted that that X was a transsexual
who had undergone gender reassignment surgery. It continued:

“He has lived with Y, to all appearances as her male partner, since 1979. The
couple applied jointly for, and were granted, treatment by AID to allow Y to
have a child. X was involved throughout that process and has acted as Z’s
"father" in every respect since the birth……... In these circumstances, the
Court considers that de facto family ties link the three applicants.”

93. The court observed (see paragraph 43) that, up to that point, it had
been “been called upon to consider only family ties existing between
biological parents and their offspring.” It analysed the“complex scientific,
legal, moral and social issues, in respect of which [it considered] there is no
generally shared approach among the Contracting States,” but held that
there had been no violation of Article 8.

94. The learned judge may well be right to expect that the European Court
may in time recognise settled homosexual couples in stable relationships as
constituting a family for the purposes of Article 8. For many reasons, the
matter is by no means straightforward and I do not find it necessary to discuss
it further in this judgment. The question is whether the learned trial judge
was entitled, as a national judge, to anticipate such a development.

95. The form in which the matter arises on the appeal is whether, through the
mechanism of the Act of 2003, an Irish court may anticipate further
developments in the interpretation of the Convention by the European Court
in a direction not yet taken by the Court.

96. Section 2 of the Act of 2003 is the material provision. It reads:

2.—(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.

(2) This section applies to any statutory provision or rule of law in force
immediately before the passing of this Act or any such provision coming into
force thereafter.

97. To assist courts in that interpretative task, section 4 provides that judicial
notice is to be given to a wide range of materials, including, of course, the

70
Convention provisions, but, inter alia, also “any declaration, decision,
advisory opinion or judgment of the European Court of Human Rights…” and
that courts shall “take due account of the principles” they lay down.

98. Article 8 provides as follows:

Right to Respect for Private and Family Life

1. Everyone has the right to respect for his private and family life, his home
and his correspondence.

2. There shall be no interference by a public authority with the exercise of

this right except such as is in accordance with the law and is necessary in a
democratic society in the interests of national security, public safety or the
economic well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the rights and
freedoms of others.

99. The Convention is an instrument of international law. It imposes

obligations in international law on the contracting states. It does not require
domestic incorporation of its terms into the law of the contracting states. Its
judgments, as this court has repeatedly stated, do not have direct effect in
our law. The contracting states are under an obligation in international law to
secure respect for the rights it declares within their domestic systems. The
European Court has the primary task of interpreting the Convention. The
national courts no not become Convention courts.

100. Lord Bingham correctly outlined the respective tasks of the European
Court and the domestic courts in the following passage from his speech in R.
(Ullah) v. Special Adjudicator [2004] 2 AC 323:

“In determining the present question, the House is required by Section 2(1)
of the Human Rights Act, 1998 to take into account any relevant Strasbourg
case law. While such case law is not strictly binding, it has been held that
Courts should, in the absence of some special circumstances, follow any clear
and constant jurisprudence of the Strasbourg Court… This reflects the fact
that the Convention is an international instrument, the correct
interpretation of which can be authoritatively expounded only by the
Strasbourg Court. From this it follows that a national Court subject to a duty
such as that imposed by Section 2 should not without strong reason, dilute or
weaken the effect of the Strasbourg case law………It is of course open to
Member States to provide for rights more generous than those guaranteed by
the Convention, but such provision should not be the product of
interpretation of the Convention by national Courts, since the meaning of
the Convention should be uniform throughout the States party to it. The
duty of national Courts is to keep pace with the Strasbourg jurisprudence as
it evolves over time: no more, but certainly no less”.”

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101. Lord Bingham was, of course, speaking of the English legislation which
corresponds, though with some important differences, to provisions of our Act
of 2003.

102. What the High Court judge has done goes beyond these principles. As
matters stand, the European Court has held that long-term homosexual
relationships do not fall within the scope of Article 8. Even assuming the
learned trial judge to have identified any statutory provision or rule of law to
which this interpretative obligation is to be applied, it is necessary to
consider whether section 2 obliged him to adopt the interpretation he chose.
It must, firstly, be recalled that Irish law is to be interpreted “subject to the
rules of law relating to such interpretation and application.” For reasons
already given, I believe that is clear that the claimed de facto family
consisting of the mother, B.M. and the child does not exist in Irish law. A
court can only depart from that national-law interpretation for the purpose of
making any such national rule compatible with the State’s obligations under
the Convention. The existing case-law of the European Court seems clearly to
be to the effect that a de facto family of the sort claimed does not come
within the scope of Article 8. Thus, insofar as judicial notice is accorded, by
virtue of section 4, to the case-law of the European Court, it tends to the
opposite conclusion to that adopted by the High Court.

103. The learned judge identifies a movement or trend in the case-law and
decides to move in that direction. The Attorney General refers to the decision
of the House of Lords in M v. Secretary of State for Work & Pensions [2006] 2
AC 91. The case concerned an application by the divorced mother of two
children who lived with her same-sex partner. She claimed that she should
have been assessed for the purposes of child support contributions as if she
had been living with a man. In substance it was a discrimination claim, though
Article 8 was also relevant. The appellant made the claim that the difference
in treatment of same sex couples breached Article 8 and 14 of the
Convention. Lord Nicholls considered the effect of the decisions in Mata
Estevez and Karner. They showed that English law was not subject to scrutiny
by the European Court. He went on:

“It goes without saying that it would be highly undesirable for the courts of
this country, when giving effect to Convention rights, to be out of step with
the Strasbourg interpretation of the relevant Convention Article”.

104. It is vital to point out that the European Court has the prime
responsibility of interpreting the Convention. Its decisions are binding on the
contracting states. It is important that the Convention be interpreted
consistently. The courts of the individual states should not adopt
interpretations of the Convention at variance with the current Strasbourg
jurisprudence.

105. I am satisfied, for these reasons, that the very detailed and careful
examination by the learned trial judge of the notion of de facto family cannot

72
be relevant to the issues to be determined in this case. Neither the
Constitution nor the law in force in Ireland recognise persons in the position
of the respondents as constituting a family with the natural child of one of
them. None of the foregoing means that the present legal situation will
continue unaltered at either international or national level. National
legislation may address these difficult problems. Changes in the Strasbourg
jurisprudence are to be expected. The legal principle is important. The courts
must respect the boundaries laid down by Article 29 of the Constitution. The
Act of 2003 does not provide an open-ended mechanism for our courts to
outpace Strasbourg.

106. It seems clear that the reasoning of the High Court was influenced by the
desire not to disrupt the de facto family said to consist of the mother and
B.M. with the child. Following his conclusion on this point the learned judge
said:

“The significance of this herein is that because P.L., B.M. and the child., 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.”

Welfare of D
107. The final matter is the correctness of the High Court judgment on the
question of the best interests of the child. The learned trial judge very clearly
preferred the evidence of Dr. Byrne and was critical of Dr. Antoinette Dalton
on the central point that it would not be possible for the respondents to agree
access arrangements for the father without causing psychological damage to
the child.

108. As part of his reasoning, the learned trial judge ruled that the court
should follow the recommendations of the psychiatrist appointed to report to
the court pursuant to section 47 of the Act of 1995. He found support for his
view in the decision of the Court of Appeal in England in Re W.
(Residence) [1999] 2 FLR 390. There Thorpe L.J. criticised the judge of first
instance for unreasoned departures from the recommendations of a court
welfare officer. He emphasised that:

“…in private law proceedings, the Court welfare service is the principal
support service available to the judge in the determination of these difficult
cases. It is of the utmost importance that there should be free co-operation
between the skilled investigator, with the primary task of assessing not only
the factual situations but also attachments, and the judge with the ultimate
responsibility of making the decision.”

109. I would not disagree with the learned trial judge that great respect
should be accorded to the report prepared for the court pursuant to section

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47. He was certainly entitled to attach particular weight to the very thorough
and carefully prepared report of Dr Byrne, an expert of high repute, in this
case. However, it was not right to erect a principle that the court could
depart from any section 47 reports only “for grave reasons.” The court should
not preclude itself from disagreeing with a report, where a persuasive
contrary view is available in the evidence. There is no reason to depart from
the ordinary rules of evidence. This is a civil matter, where disputed matters
of fact are determined on the balance of probabilities. In Re W, there was no
contrary report. The principal and repeated criticism expressed by Thorpe
L.J. of the trial judge in that case was that he had failed to give reasons for
his departure from the recommendations of the child welfare officer.

110. Nonetheless, and in spite of that point of disagreement, I think it is clear

that the learned trial judge clearly preferred the report of Dr. Byrne on its
own merits and did not accept the report or evidence of Dr. Dalton. He was
entitled to do so. It is necessary then to examine the learned trial judge’s
own reasoning for ruling that the father should have no access to the child. It
bears repeating that he accepted, as did Dr. Byrne, that, “in general, it is
beneficial to a child to have access to both its natural parents,” though he
immediately qualified this statement by saying that “there may be
circumstances where this is not so.” In reliance on Dr. Byrne, he concluded
that there were such circumstances in the present case. They were:

“They are essentially that the relationship between the father, P.L. and B.M.
is so poor that only conflict of a psychologically damaging kind to the child is
likely to occur. He bases this opinion on his finding that P.L. and B.M.
consider themselves betrayed, deceived and violated by the applicant. He
does not think that the father did actually deceive them but nonetheless
believes that their feelings in this regard are genuine and that this is a very
important and fundamental matter. There is no trust between the parties
and he finds it difficult to see how they could ever co-operate in such a way
that would not expose the child to conflict.

In my view, the evidence has amply confirmed Dr. Byrne’s view in this
regard, save that I do not agree with his view that the applicant did not
deceive the respondents as to his true intentions in entering into the sperm
donation agreement. I think he did as I have found above. In consequence, it
seems to me that the respondents have, in fact, substantial grounds for their
feelings of betrayal and violation and this, in my view, lends even more
weight to Dr. Byrne’s opinion.”

111. I have several difficulties with this passage. Firstly, as I have already
said, it was never put to the father in evidence that he had deliberately
deceived the respondents. It might be said that whether he did or not does
not bear on the welfare of the child. However, it seems to have played a
crucial part in the judge’s reasoning. It enabled him to conclude that the
mother’s feelings of violation by the father were rational. As noted above,
part of that very complaint was that the mother felt she was being used as

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a “surrogate” mother. It is perfectly clear that no such question ever arose.
Moreover, the learned judge here, in spite of his general preference for the
section 47 report, rejects a careful conclusion of Dr Byrne, reached after
interviewing all of the parties at length and he does not explain how he came
to that view.

112. At a more general level, it seems to me also that the central point in the
judge’s reasoning raises a difficult point of possible general application. The
Court had to address a situation of a somewhat similar kind in N. & anor. v.
Health Service Executive & ors. [2006] IESC 60, where the Court decided to
return a child from its intended adoptive parents and where the adoption had
not gone ahead due to the intervening marriage of the natural parents. A
significant obstacle raised was that the respondents would be unable to
cooperate in the change of custody and that this would damage the child.
Hardiman J. examined whether the respondents could exercise a “veto” over
the transfer of custody. In the present case, it appears to me that the final
decision of the High Court leaves unresolved the question of when, if at all,
the child will be permitted contact with or even knowledge of his biological
father. The judge left the matter on the following basis:

“I further note the evidence of the respondents which I believe to be entirely

genuine that their wish is that the child should know the identity of his
biological father – that after all was the whole point of this agreement – and
that he should have contact at an age appropriate time.”

113. The learned trial judge, as I have already noted, came to the conclusion
that the respondents constitute a de facto family with the child, cognisable in
Irish Law, for the purposes of Article 8 of the Convention. This conclusion
played a significant part in the reasoning which led him to conclude that
there should not be access. He said:

“It is in this context that the Court should weigh the claim by the
respondents that theintegrity of their family would be violated by any order
of guardianship or access in favour of the applicant.”(emphasis added)

114. He found that:

“The child currently lives in a loving, secure de facto family.”

115. I am satisfied that these conclusions are erroneous. The respondents do

not form a de factofamily in Irish law. P.L., as the mother of the child, has a
natural right guaranteed by the Constitution to his custody and to look after
his general care, his nurture, his physical and moral wellbeing and his
education, in every respect. The child has corresponding rights as a human
person to those benefits. B.M. has no legally or constitutionally recognisable
family relationship with the child.

116. The father has statutory rights to apply for guardianship and other
orders. Insofar as guardianship is concerned, I would dismiss the appeal for

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the reasons given by Geoghegan J. in the judgment which he has delivered. It
is, of course, possible that a time will come when such an application might
be renewed in the High Court in different circumstances. Whether orders
permitting contact or access between the father and the child will be made
must depend on whether their making would be in the interests of the child,
not those of the father. The dispute between the psychiatrists was a
comparatively narrow one. They disagreed only as to the time at which the
child should be introduced to and have contact with the father. It would not
be possible for this Court to make appropriate orders. In my view, the entire
matter should be reconsidered by the High Court, in the light of the
considerations set out in this judgment. The High Court cannot treat the
mother, B.M. and the child as constituting a de facto family cognisable in Irish
law. It will have to resolve the difficult question of the best interests of the
child and will be perfectly entitled to consider the evidence of Dr. Byrne and
any other child psychiatrist.

117. I would, therefore, allow the appeal in that respect only and remit the
matter to the High Court. I would make an order in the terms suggested by
Denham J.

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