Report of High Court Judgement of Judge Hedigan on 16th April, 2008

RE- McD V L & ANOTHER FACTS

This case dealt with issues regarding guardianship and access under the Guardianship of Infants Act, 1964, Section 47 report, Sperm Donor Agreements, Same Sex Couples and Recognition of same sex unions.

The facts of the case were that the Applicant was a sperm donor and biological father of a child born 2nd May 2006.

He is a single gay man. The Respondents' were the biological mother of the child and her partner who is Irish.

The Respondents were in a same sex relationship since 1995. The Respondents' asked the Applicant would he consider being a sperm donor, he agreed, changed his mind and agreed again. The parties signed a contract which stated the Applicant would have no parenting role and would only have contact with the child at the discretion of the Respondents'. The Respondents' had sole guardianship and access of the child. The Applicant was initially granted an injunction restraining the Respondents' from taking the child out of the jurisdiction on the 22nd March 2007.

This was varied to allow the Respondents take the child on vacation to Australia. The Court ordered a Section 47 report and refused a stay on the injunction pending a report. The matter was appealed to the Supreme Court who affirmed the Orders and the Order for the Section 47 Report.

Judge Hedigan gave judgement in this case in the High Court on the 16th April 2008.

Judge Hedigan advised in the terms of this judgement that the sperm donor was seeking an Order appointing him guardian of the child. As a natural father, not married to the child's mother, he has a right to apply to court for such an Order but no more. He does not even have a de-feasible right to be appointed guardian. In determining whether to make such an Order the court must regard the welfare of the infant as the first and paramount consideration as per the Guardianship of Infants Act, 1964.

In this case the Applicant further sought an Order seeking access to the child.

Under the Children's Act, 1997, the court must have regard as to what the child's best interests would be in maintaining personal relations and direct contact with the father.

A report was ordered by the court under Section 47 of the Family Law Act, 1995, which was carried out by Dr Gerard Byrne, Consultant Psychiatrist. The court had to give consideration to this report since it was the only independent psychiatrist assessment of the situation.

Dr Byrne's findings were summarised as follows:

1. A child should have knowledge of both its parents.
2. A child should also have access to its parents save for compelling reasons against.
3. Children brought up in same sex families do not suffer gender confusion.
4. The Respondents rightly or wrongly felt a huge amount of distress of what they perceived to be the Applicants betrayal of them. They feel this to be destructive and a threat to their integrity as a family. They have a feeling of violation by the Applicant and this is a very important and fundamental matter. There is no trust between the Applicant and the Respondents.
5. Dr Byrne considered the parties could not co-operate with each other in such a way as to avoid exposing the child to conflict.
6. Conflict between adults in a child's life causes psychological damage and it would be most unwise to introduce the child into such a situation of almost certain conflict.
7. There is no relationship presently existing the Applicant and the child. The Applicant has never been with the child for any appreciative amount of time and certainly not long enough at the child's age to establish any attachment by him to the Applicant.
8. To establish such relationship at the child's age would present significant challenge for all adults.
9. Dr Byrne doubts the Applicants motivation seeking access.

Dr Byrne concluded and advised the court that the Applicant should not have any role that gives him rights that could interfere with the child's family life or the Respondents'.

The Court concluded that the welfare of the child was paramount and of first interest and his welfare was tied up with the child continuing in the care, custody and guardianship of his family and the court therefore ordered no access or guardianship rights to the Applicant.

The Court further concluded that in the absence of any provisions in Irish law taking account of the existence of same sex couples and securing the rights under Article 8 of the European Convention of Human Rights that urgent consideration should be given by the legislature to the situation regarding the rights of same sex couples.

The Court further concluded that Sperm Donor Agreements may constitute a valid contract but are only enforceable to the extent of the rights of any child born as a result thereof are not prejudiced.

Same sex de facto families should be recognised as existing in Irish Law just as ordinary de facto families.

Where a lesbian couple live together in a long term committed relationship, of mutual support, they must be regarded as a de facto family and enjoy rights under Article 8 of the ECHR.

The Court further concluded that the Applicant does not enjoy rights under Article 8 of the ECHR. There is no relationship between the Applicant and the Child.

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