(with whom Finnegan J concurred)
This is an appeal on an interlocutory matter by P.L. and B.M., the respondents/appellants, hereinafter referred to as 'the respondents', from the judgment and order of the High Court (Abbot J.) of the 23rd March, 2007.
At the heart of this case is an infant, H.L.. J.McD., the applicant/respondent, hereinafter referred to as 'the applicant', is the biological father of the infant, by means of artificial insemination. The respondents, who are both female, underwent a Civil Union Ceremony in England in January, 2006.
The respondents wished to have a child. After months of consideration and discussion the applicant agreed to have a child with the first named respondent by means of artificial insemination. The baby was conceived and the good news was shared with the applicant's family.
In September, 2005 it was agreed to formalise the arrangement. There were a number of drafts of an agreement. Finally an agreement was signed on 11th September, 2005. The agreement states that it would be in the best interests of the child to know his biological father and that the child would know that the applicant is his father. It states that the applicant's role will be as a favourite uncle and that he will be welcome to visit the child at times mutually convenient to the parties. It states that in the event of the first named respondent's death that the applicant's contact with the child would continue uninterrupted, and that in addition his opinion would be sought regarding the best guardianship arrangements for the child.
The infant was born in May, 2006, taking the applicant's first name as his second name. In the following months the parties visited each other regularly, the applicant took the infant for walks in his buggy, and the parties had dinner in each others homes. The applicant provided items to assist with the new arrival. The applicant offered financial assistance for the birthing, but this was declined. The applicant also offered to assist with the child's day to day expenses, but this was declined. The applicant has informed the respondents that he has opened a trust account for the infant, to which he makes monthly lodgements.
In September, 2006 the respondents' attitude to the applicant and his role with the infant altered. They informed him that the parties had become too close and that a greater distance and formality was required. After this the applicant had only two further contact visits with the infant, one in October, 2006 and one in November, 2006.
There has been no substantive hearing as yet in this case, thus the facts have yet to be determined. It was submitted by the applicant that after November, 2006 he was giving the respondents the space they sought.
On hearing that the respondents were about to embark on a holiday in Australia with the infant, and that they were thinking of relocating there, the applicant brought an action restraining the respondents.
The applicant sought and obtained an interim order. Subsequently, he obtained an interlocutory order, from which the respondents have appealed. In that interlocutory order the High Court (Abbott J.) ordered:-
On the 30th March, 2007 the learned High Court judge ordered that a named person be appointed for the purpose of the preparation of a report, pursuant to s.47 of the Family Law Act, 1995, for the court.
The first named respondent took leave of absence from her employment to become pregnant and take care of the baby. The respondents planned to visit Australia for a year, from March, 2007 to approximately May, 2008. The first named respondent is Australian and she wished to give the infant an opportunity to spend time with her family. Her mother is unwell and unable to visit Ireland. The second named respondent secured temporary employment in Australia, for the planned year away, and they have let their home in Ireland.
The applicant was informed in March, 2007 of the respondents' plans. On 22nd March, 2007 the applicant instituted proceedings under the Guardianship of Infants Act, 1964 seeking, inter alia, to be appointed guardian of the child and joint custody. He also sought orders pursuant to the Child Abduction and Enforcement of Custody Orders Act, 1991 and Article 8 of the European Convention on Human Rights. This substantive action has not yet been heard by the High Court.
Right to apply
The applicant has a right to apply to the court. Under s.6A of the Guardianship of Infants Act, 1964, as amended, it is provided:-
In J.K. v. V.W.  2 I.R. 437 this Court held that:
Finlay C.J. stated:
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 the powers and rights of a guardian may, in the interests of the welfare of the infant, be taken from him.
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.
However, this appeal does not raise the substantive issues. At issue in this appeal is whether an interlocutory injunction should restrain the infant from leaving the State pending the hearing of the application.
In fact there are two issues before this Court:-
The injunction restraining the removal of the infant H.L. from the State.
The appointment of an assessor pursuant to s.47.
The first issue, therefore, is the interlocutory injunction restraining the removal of the infant H.L. from the State, pending the determination of the proceedings, save for the six week period ending on the 9th May, 2007.
The High Court identified the test to be applied, as follows:
The basis upon which the Court in a case such as this should decide the case is firstly to decide whether there is a fair question to be tried, or a fair issue to be tried, and then having decided if there is a fair issue to be tried then to consider the balance of convenience .... and in relation to this particular case as it is a case dealing with an infant, I consider that the balance of convenience test should be tempered to a very large degree by the provisions of s.3 of the Guardianship of Infants Act, 1964, that in determining a matter in relation to the upbringing etc, of a child and where that is in question the Court shall have regard to the welfare of the child, as the first and paramount consideration.
The learned High Court judge considered the inconvenience to the respondents of unravelling their arrangements to go to Australia, balanced against the interest the infant may have in having contact with the applicant. The High Court found that there was a bond between the applicant and the child, formed very strongly on the part of the applicant which will be reciprocated imminently by the child. Also the High Court found that the lack of employment or economic misfortune is not immediately in sight for the respondents, although the second named respondent will suffer grave inconvenience and possible professional embarrassment by being unable to travel to Australia as planned.
The High Court found:-
It would appear to me that the balancing exercise should be swung in favour of the child remaining in the jurisdiction, and within proximity of his father for the purpose of developing the relationship between father and child.
Notwithstanding the contract, and notwithstanding the mother, the first named respondent is now sole guardian of the child and has her natural constitutional rights and is entitled to custody of the child to the exclusion of all persons, as defined in the Guardianship of Infants Act. But notwithstanding that I have to consider that there is 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 too, and I bear in mind that he is not a stranger to the infant, as I said, and indeed the contract itself in some respects, and especially in relation to arrangements on the death of the respondent, is indicative of a fair degree of merit in relation to an application, even though the application results, if it is in favour of the applicant father, would run contrary to the contract.
The High Court then held:-
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.
Submissions by respondents
It was submitted on behalf of the respondents that the High Court applied a test of balance of convenience tempered by considerations of the welfare of the child, and that in this balancing exercise the potential relationship between the infant and the applicant outweighed all other factors. It was submitted that the learned trial judge erred in applying such a test. It was submitted that all the evidence was on affidavit and that this Court is in the same position as the High Court and may substitute its findings of fact. It was submitted that the High Court erred in holding that the opportunity for the applicant to develop a relationship with the infant outweighed other factors. The respondents submitted that the proper matters for the Court to take into account in assessing the balance of convenience in a case concerning the removal of an infant from the jurisdiction is:-
Submissions by applicant
The applicant submitted that the orders of the High Court should be upheld for the following reasons:-
The agreement signed by the parties on the 11th September, 2005 was not a valid and binding contract.
The High Court was entirely correct to take a child-centred approach.
It was admitted that the applicant does not possess constitutional rights in relation to his son, but he possesses a statutory right to apply to the courts for access and/or joint guardianship.
There are no reported Irish cases concerning access or guardianship applications of identifiable sperm donors. However, the Court was referred to case law in other jurisdictions.
It was submitted that the facts in the case would amount to the 'close personal ties' necessary to engage Article 8 of the European Convention of Human Rights.
The Payne decision should not be followed in this jurisdiction, so the 'reasonableness' of the proposed relocation of the respondent does not end the matter.
The planned relocation of the respondents cannot be labelled as a temporary relocation. It is a lengthy stay at a critical time in the infant's development.
Balance of Convenience
On the matter of the injunction, there is a single issue before the Court, the balance of convenience. It was conceded that there was a fair issue to be tried. Obviously this is not a case where damages would be an adequate remedy. Therefore the single issue for the Court is the determination of the balance of convenience on the facts before the Court. To do this the Court has to weigh the relevant factors. There is no exhaustive list of relevant factors in assessing the balance of convenience. The exercise is required to be carried out in the context of all the circumstances of a case. In this situation the Court seeks to weigh the factors and take the course involving the least risk of injustice. Thus it is necessary to consider the risk of injustice to the parties. Where the risk of injustice is evenly balanced then there may be merit in preserving the status quo. Some cases may have special factors. In this case a significant factor is the welfare of the infant.
At the core of this case is the infant, H.L.. His welfare is of paramount importance. While submissions were made by counsel as to the balance of convenience to the applicant and to the respondents, no counsel was before the Court to make submissions on behalf of the infant. In a case such as this, I would have found it of great assistance to have the benefit of such a submission.
There is no specific statutory law on the issue before the Court, nor any Irish case law. This case brings novel matters before the Court.
Counsel referred to cases from other jurisdictions. None were directly on point. The Court was referred to the English case of R.M. (Sperm Donor Father)  Fam Law 94, where a lesbian couple had advertised for a man to father a child, saying they were happy for the father to act as a father figure to the child, subject to them being the primary carers; the applicant applied and ultimately a child was born. After the child was born the couple became concerned that there was too much involvement with the father. Apart from initial visits after the birth they did not let him have further contact. He applied for contact and a parental responsibility order. Black J. made a defined contact order and adjourned the application for parental responsibility. She held that there was advantage in sharing contact with the father at an early age.
In X. v. Y. 2002 GWD 12-344 a Scottish case, Sheriff Laura Duncan held in Glasgow Sheriff Court that a homosexual sperm donor had parental rights in relation to a child conceived with his sperm and being brought up by a lesbian couple, including the mother. In that case it was held that the child had family ties and Article 8 of the European Convention on Human Rights applied to their relationship, that it was in the best interest of the child that the applicant was involved with decisions as to his education etc.; that it was in the best interest of the child that he have contact with that applicant.
Re Patrick (2002) 28 Fam LR 579 was the first Australian case to deal with the issue of whether a sperm donor has a right of contact with the child under family law. In that case the facts were of the father as a homosexual sperm donor, a lesbian couple and a two year old child. While that case was grounded on Australian Family Law it was based on the principle that the welfare of the child is the paramount consideration of a court, and the court ordered contact visits between father and child.
This Court was referred to conflicting decisions from other jurisdictions on the issue of relocation of a primary carer, with consequent affect on the other parent. None of these cases are entirely on the point at issue in this case. Many relate to married couples who subsequently separate. The factual contexts are not very relevant to this case. In this case it appears that all parties are bona fide in their motives. The wish to relocate is temporary – for a year. However, it does not relate to a significant career enhancing opportunity for the mother, as in R A (Temporary Removal from Jurisdiction) (2004) EWCA Civ 1587. The mother's partner has an offer to work for a year in Australia. The primary motive for the relocation does not appear to be this career move. Rather, it appears to be because the first named respondent is Australian and she wishes the infant to have contact with her family. However, contact was achieved in the six week visit to Australia which took place in the Spring of this year.
All in all, I find none of the case law from other jurisdictions to be of assistance on this interlocutory application, this appeal should be decided on first principles, on the facts. Consequently, the paramount issue is the welfare of the child. There is a dearth of fact on that issue, and consequently, the issue is rendered more difficult to decide.
In considering the balance of convenience in this case, the factors in favour of the respondents include the following:-
the welfare of the infant is best served in the custody of the first named respondent, the mother;
the mother has a constitutional right to the custody of her child;
the first named respondent is Australian and wishes her child to know her family;
the parties have entered into a written agreement;
the first named respondent is the primary carer for the child;
the respondents propose a temporary relocation to Australia, until June, 2008;
this is a reasonable and proportionate plan;
the second named respondent is the breadwinner and she has taken leave of absence from her job for a year and a temporary job in Australia until June, 2008;
the respondents have let their house in Ireland for the year.
On the other hand the factors in favour of the applicant include that
he is the biological father;
he entered into a agreement with the respondents as to the infant (which will be an issue in the substantive case);
he has a right to apply to court for access and joint custody;
the applicant has applied to the High Court and this application has to be determined; even if, as appears to be accepted, the relocation to Australia is only for a year, this is at a formative age of the infant.
Welfare of the infant
The critical factor in the balancing required of the Court in this case is the welfare of the infant – on which the Court has had no expert assistance. The Court heard submissions by the parties as to their view of the balance of convenience, but that must be considered as being tinted by their interests.
The welfare of the infant is of paramount importance. In the vacuum of information as to the welfare of the child the Court must use the fulcrum of justice in seeking the balance of convenience. In the circumstances I am satisfied that the welfare of the child must be a weighty factor. In making this decision I do so with the infant in mind. Consequently, I would affirm the judgment of the High Court.
However, from this decision, that the balance of convenience lies in dismissing the appeal, it should not be inferred as presuming rights for the applicant. While the applicant has launched his application, those matters have yet to be decided by the High Court. I make no decision on those matters, and nor should any be presumed from this judgment.
I am guided by the paramount importance of the welfare of the infant, by the young age of the infant, by the fact that a year is a long time in the life of a developing infant, and by the injustice that would be done to the infant if the applicant is ultimately successful in his application.
Section 47 Assessor
The second issue is the appointment of an assessor pursuant to s.47. The respondents submitted that this appointment was not in the interest of the welfare of the child; that it is not necessary to address the issue before the High Court decides whether the applicant should have access, and/or guardianship of the infant, and also that such assessment should not be directed prior to the High Court decision on whether the contract entered into between the parties is binding. On behalf of the applicant it was submitted that it was necessary to observe and monitor the interaction of the infant and the natural father as they get to know one another through successive experiences of contact.
In the circumstances I am satisfied that the High Court would be assisted by a s.47 report. It would be relevant to the fundamental issue in the case – the welfare of the child. Consequently, I would affirm this decision of the High Court also.
For the reasons given I would dismiss the appeal, affirm both interlocutory orders of the High Court, and remit the matter to the High Court so that the application may proceed. I note that the usual undertaking as to damages was given to the Court by counsel on behalf of the applicant.
In my view the court should not grant the interlocutory orders sought by the Applicant and should allow the appeal.
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.
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.
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.
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.
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  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.
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).
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.
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:-
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.”
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.  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.
That decision was followed and applied by this Court in W.O’R v E.H.  2 I.R. 248. Hamilton C.J. summarised the effect of section 6A as follows:
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.
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”.
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.
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  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  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.
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)  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.
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.
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.
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.
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.
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.
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.
I would allow the appeal and discharge the order made by the learned trial judge.
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