Supreme Court dismisses sperm donor's access order, prioritizing child welfare and same-sex mother's rights.

THE SUPREME COURT

[S.C. No: 112/2007]

Denham J.

Fennelly J.

Finnegan J.

IN THE MATTER OF THE GUARDIANSHIP OF INFANTS ACT, 1964

IN THE MATTER OF THE FAMILY ACT, 1995

IN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT OF CUSTODY ORDERS, 1999

AND

IN THE MATTER OF H.L., AN INFANT

BETWEEN/

J.MCD.

APPLICANT/RESPONDENT

AND

P.L. AND B.M.

RESPONDENTS/APPELLANTS

Judgment delivered the 19th day of July, 2007 by Fennelly J

1. In my view the court should not grant the interlocutory orders sought by the Applicant and should allow the appeal.

2. The case is utterly unique and unprecedented. The Applicant’s only relationship with the infant, whom I will call the child, is as a

sperm donor. The Appellants are two women in a same-sex relationship.

3. The interlocutory orders will have the inevitable effect of altering the status quo in favour of the Applicant. In view of the course

taken in the High Court to date, the rights and relationship of the Applicant to have access to the child will be established as a fait

accompli, before there is a substantial hearing on the merits.

4. I gratefully adopt the summary of the facts contained in the judgment of Denham J. It enables me to concentrate on the essential

elements of the case.

5. It is important to identify at the outset the radically different legal and constitutional positions of the Applicant and of the first-

named Appellant. I leave the second-named Appellant outside these considerations. As a person in a same-sex union with the first-

named Appellant and having no natural relationship with the child, she appears to me to have only such rights as arise from the first-

named Appellant’s interests in relation to her child.

6. The first-named Appellant has natural and constitutional rights flowing from her relationship to the child. She is his mother.

O’Higgins C.J. wrote of the nature of the bond between mother and child in his judgment in G v An Bórd Uchtala [1980] I.R. 32 at

page 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,

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. The existence of this right was recognised in the judgment of this Court in The State

(Nicolaou) v. An Bord Uchtála. 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.”

7. The Chief Justice recognised the equal constitutional rights of the child, but considered that these are normally “safe under the

care and protection of its mother.” (page 56).

8. Contrast the position of the Applicant. He is not the father of the child by virtue membership of a family based on marriage to his

mother. It may well be that, in the fullness of time, consideration will have to be given to recognition to non-marital relationships of a

kind which have become increasingly normal over recent decades. The Applicant cannot, however, bring himself even within the scope

of any relationship approximating to a family.

9. As Denham J has pointed out, his standing in the present proceedings arises only by virtue of 6A of the Guardianship of Infants

Act, 1964, as amended by section 12 of the Status of Children Act, 1987. It is there provided:-

"(i) Where the father and mother of an infant have not married each other, the Court may on the application of the

father, by order appoint him to be guardian of the infant."

10. In any such application as is envisaged by that provision, section 3 of the Guardianship of Infants Act, 1964 requires that “the

welfare of the infant [be] the first and paramount consideration.”

11. As this is an interlocutory application only, I make no comment about the likelihood of the Applicant succeeding in having himself

appointed as guardian of the child. He will need to persuade a court that he is within the intended scope of that section. His present

legal status is no greater than that of an applicant for the status of guardian. He has, as matters stand, no legal or constitutional

relationship with the child. Denham J has cited the judgment of Finlay C.J. in J.K. v V.W. [1990] 2 I.R. 442 and, in particular, a

passage describing “the blood link between the father and the child and the possibility for the infant to have the benefit of the

guardianship and society of its father [as] one of many factors relevant to its welfare which might be viewed by the court.” It should

be noted that the father, in that case, had had a serious relationship with the mother: they had lived together and had planned the

birth of the infant in question. At page 446 of the judgment, Finlay C.J. also stated, in relation to the father’s position under section

6A:

“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.”

12. That decision was followed and applied by this Court in W.O’R v E.H. [1996] 2 I.R. 248. Hamilton C.J. summarised the effect of

section 6A as follows:

1. While the provisions of s. 6A of the Act of 1964 give a right to a natural father to apply to be appointed guardian of an

infant, it does not give him either a right to be appointed guardian, or a right to guardianship defeasible by circumstances

or reasons involving the welfare of the child. It does not equate his position vis-à-vis the child with a father who is

married to the mother of the child.

2. The court in deciding upon such application must regard the welfare of the infant as the first and paramount

consideration.

3. While no constitutional right to guardianship of the child exists in the natural father, there may be 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 and this is one of the

factors which may be viewed by the court as relevant to its welfare.

4. The extent and character of the rights of the father of a child to whose mother he is not married accrue not from any

constitutional right vested in the natural father to be appointed guardian but from the relationship of a father to a child.

5. In the situation where a child or children are born as a result of a stable and established relationship and nurtured at

the commencement of their life by their father and mother in a situation bearing nearly all of the characteristics of a

constitutionally protected family, the rights of the natural father would be very extensive indeed.”

13. I note that the learned High Court judge stated that there was, in his view, “a fair question to be tried in relation to the issue as

to whether the father has a right to be appointed a guardian of the infant …” This is, in my view, mistaken. It conflicts with the view

of Finlay C.J., cited above. There can be no question of his having such a “right.” He has no more than the right to apply. In any

event, his status is very different from that of an unmarried father who has, or has had, an established relationship with the mother.

He is far from being in the position of the father of a child “born as a result of a stable and established relationship,” as envisaged by

Hamilton C.J. in the last paragraph of the above citation.

14. The court must also attach importance to the agreement which was admittedly entered into between the parties. The following

provisions are, in my view, material:

· [The Applicant] “is a friend and has agreed to act as sperm donor”;

· The child will know that [The Applicant] is his/her biological father. The child will be encouraged to call him [his Christian

name];

· [The Applicant] “agrees that the child’s parents are” [names of Appellants];

· [The Applicant] “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;”

· [The Applicant] “will be welcome to visit [the Appellant] and their child at mutually convenient times. This will be at the

discretion of [the Appellants];

· [The Appellants] “will be fully responsible for the child’s upbringing and [the Applicant] will have no financial obligations

to the child.

15. The terms of this agreement are difficult to reconcile with the notion of the Applicant becoming a guardian of the child. Counsel

for the Applicant has submitted that the agreement is void or unenforceable as being contrary to public policy, particularly because, it

is alleged, it does not take account of the welfare of the child. That is clearly a matter upon which I should make no comment. It will

have to be determined at the hearing of the action in the High Court. The agreement cannot, however, be assumed at this

interlocutory stage to be invalid. It must be taken into account in considering whether the Applicant should be permitted, by obtaining

an interlocutory injunction, to restrain the first-named respondent from the exercise of the normal right enjoyed by any individual to

travel and, by corollary, the normal right of a parent to travel with his or child or children.

16. The Court, as Denham J has said in her judgment, received arguments based on citations from authority in a number of

jurisdictions concerning applications made for leave to remove a child from such jurisdictions. Typically, those cases concerned

children of dissolved marriages, where each of the parents had an established and existing relationship with the child. The principal

case cited was a decision of the Court of Appeal in England in Payne v Payne [2001] 1 FLR 473. The judges were Dame Elizabeth

Butler-Sloss P, Thorpe and Robert Walker LJJ. Much emphasis was placed on the interests of the primary carer, not so as to displace

the principle that the welfare of the child is paramount, but rather that the welfare of the child is frequently likely to be best served

by giving recognition and effect to normal and reasonable parental decisions. Thorpe JJ cited extensively from authority on the point.

The most influential statement was that of Sachs LJ in Poel v Poel [1970] 1 WLR 1469 at 1473:

"When a marriage breaks up, a situation normally arises when the child of that marriage, instead of being in the joint

custody of both parents, must of necessity become one who is in the custody of a single parent. Once that position has

arisen and the custody is working well, this court should not lightly interfere with such reasonable way of life as is

selected by that parent to whom custody has been rightly given. Any such interference may …produce considerable

strains which would not only be unfair to the parent whose way of life is interfered with but also to any new marriage of

that parent. In that way it might well in due course reflect on the welfare of the child. The way in which the parent who

properly has custody of a child may choose in a reasonable manner to order his or her way of life is one of those things

which the parent who has not been given custody may well have to bear, even though one has every sympathy with the

latter on some of the results."

17. This is, I believe, a sensible and balanced way to approach the matter. Yet, it must remembered that the courts were, in those

cases, dealing with proposals for permanent removal of residence. The case of a proposed temporary removal was considered in Re A

(Temporary Removal from Jurisdiction). [2004] EWCA Civ 639. Clearly, a court will be less likely to restrain a move of residence which

is for a short identifiable period, as in the present case of an interlocutory order.

18. On the facts of the present case, the proposal of the first-named Appellant to go to Australia with her child in order to visit her

parents is a normal and reasonable thing to wish to do. At least, she has the right to choose to do it. Comments have been made

about the necessity for this, in view of the fact that she has already travelled there for that purpose. This is, in my view, to beg the

question of whether the Applicant has any right to question that decision. A court may intervene in such normal personal or family

decisions only upon clearly established legal grounds. It seems to me that the learned trial judge was influenced predominantly by a

view that the Applicant should be allowed to develop a bond with The child, which would be interrupted by the Australian trip. He

said:

"I consider that the loss of a critical year, a year when a bond is about to open up on an objective scale a reciprocal

scale between father and son is a period not to be missed if at all possible. I do not see any serious and irreparable loss

on the part of the respondents if they miss this year".

19. By giving that principal reason for granting the interlocutory order, the judge was making it clear that he is predisposed to appoint

the Applicant as guardian and to grant him rights of access. Otherwise that reason would not make sense.

20. It is, of course, axiomatic that the welfare of the child must be the paramount consideration. If it is shown to be contrary to the

interests of the child that he should be taken by his mother to Australia for a year, then there is a case for an injunction. However,

as Denham J has pointed out, the Court has not been provided with any evidence on this point. The Applicant refers in his affidavit to

a consultation with a child psychologist who advised that the child would benefit greatly form knowing and spending time with him.

However, there is no affidavit and not even a report from any expert. The Applicant has not shown, by means of expert or any other

evidence, that the welfare of the child will be jeopardised or compromised by his being taken to Australia for the proposed of just

short of one year.

21. The burden of proof is necessarily on the Applicant. The situation is such an extraordinary one that the Court cannot assume any

expertise in this very difficult matter. Is the welfare of the child best served by being brought up by a same-sex female couple (one of

which is his natural mother) or by those persons with access to a person whose only relationship with him is as sperm donor? Both

situations are entirely novel for our courts. I confess that I could not express any, even provisional, view on the matter.

22. What is clear, however, is that a decision of the Court preventing the Appellants from travelling to Australia for the reason given

by the learned trial judge is tantamount to deciding that highly complex and difficult issue.

23. For very much the same reasons, I believe that it is premature to make an order pursuant to section 47 of the Family Law Act,

1995. That section applies to proceedings to which that section relates. The relevant type of proceeding is that under the

Guardianship of Infants Act, 1964. I could see a possible case for making such an order if the child were to be within the jurisdiction.

But the making of the order is necessarily dependant upon the grant of the interlocutory injunction. Since I do not believe that the

court should grant such an injunction, I also believe that an order pursuant to section 47 should not be made at this stage.

24. I would allow the appeal and discharge the order made by the learned trial judge.