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McD. v L. & anor

McD. v L. & anor

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Published by Francisco Estrada

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Published by: Francisco Estrada on Dec 16, 2009
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01/14/2013

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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 COURTRECORD NO. 186/2008Murray C.J.Denham J.Hardiman J.Geoghegan J.Fennelly J.IN THE MATTER OF THE GUARDIANSHIPOF INFANTS ACT, 1964AND IN THE MATTER OF THE FAMILY LAW ACT, 1995 AND INTHE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENTOF CUSTODY ORDERS ACT, 1991 AND IN THE MATTER OF H.L.AN INFANTBETWEEN/J. McDApplicant/Appellant
 
 
Información extraída desde el sitio web de los Servicios Judiciales deIrlandahttp://www.courts.ie/judgments.nsf/0?SearchView&l=en&query=roche&start=1&count=50&searchfuzzy=false&1260977294951Visitado el 16 de diciembre del 2009.
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andP. 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 December2009
This case gives rise to difficult issues concerning the care and welfare of achild born to his mother the first named respondent PL. PL is in a committedrelationship with the second named respondent BM. They are a lesbian coupleand 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 thechild.The child was born in mid 2006 after PL, the mother, became pregnant bymeans of artificial insemination from sperm donated by JMcD.The evidence given in the High Court has been extensively summarised in thecareful and extensive judgment of the learned High Court Judge. The factsand circumstances of the case are also set out extensively in the judgments ofDenham J., and Fennelly J., and I refer to them in summary form solely forthe 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 byMcD to the child and in that respect I agree with the conclusions of DenhamJ., Geoghegan J., and Fennelly J. I also agree that the appeal of McD againstthe refusal to appoint him a guardian of the child should be dismissed for thereasons set out in the judgments of my colleagues. In this judgment I intendto focus principally on the status of the European Convention on Human Rightsand the relevance or applicability of Article 8 of the Convention to thesituation of the respondents and the child as a “de facto family”, this issuebeing a central part of the decision of the High Court. Before addressing thatissue I propose, after a reference to the background facts to make briefobservations on some of the other issues.In order that PL could become pregnant McD entered into an agreement withher and BM to donate his sperm for that purpose. That agreement purportedto govern the role and relationship which McD would have with the childwhich would be born as a result, it also being agreed that PL and BM as acouple, would have full care and custody of the child, effectively as if bothwere in the position of parents. Accordingly under the agreement it wasacknowledged that PL and BM were to be the parents fully responsible for thechild’s upbringing and that JMcD at most would be a “favourite uncle”. Thisconcept was not defined as such but it was explicitly provided that JMcDwould not have any responsibility for the child’s upbringing and would notseek to influence it. The agreement envisaged that both respondents would toall intent and purposes be the ‘parents’ of the child and would control and
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