Record No 186/2008

IpsofactoJ.com: International Cases [2009] Part 12 Case 4 [SCIre]


SUPREME COURT OF IRELAND

Coram

J. McD

- vs -

P.L. & B.M.

Murray CJ

Denham J

Hardiman J

Geoghegan J

Fennelly J

10 DECEMBER 2009


Judgment

Murray CJ

  1. 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.

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

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

  4. 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.

  5. 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.

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

  7. 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.

  8. 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.

  9. 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.

  10. 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.

  11. 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 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.

  12. 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.

  13. 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.

  14. 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.

  15. Status of the European Convention on Human Rights

  16. 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.

  17. 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.

  18. 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.
  19. 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.

  20. 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:

  21. 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.

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

  23. 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.

  24. 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.

  25. The European Convention may only be made part of domestic law through the 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, legislate to provide for express statutory protection of particular Convention rights as a means of fulfilling Convention obligations.

  26. 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.

  27. 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.

  28. 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 Conventions obligations unless provision is duly made in national law for such liability.

  29. 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.

  30. 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 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.

  31. 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.

  32. 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.

  33. 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 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.

  34. 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. (Article 46.2).

  35. 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).

  36. 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. They do of course have an express obligation under the Convention itself to abide by any judgment of the Court (Article 46.1). 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.

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

  38. 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.

  39. 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.

  40. European Convention on Human Rights Act 2003

  41. Section 2 of the Act provides as follows:

  42. 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.

  43. 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 provision and is limited to requiring that a court, so far as possible, when interpreting or applying any “statutory provision” 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.

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

  45. 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.

  46. 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 their discretion may make an ex gratia payment of compensation.

  47. 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 Supreme Court, Unreported, 26th day of November 2009).

  48. 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.

  49. 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.

  50. 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, inter alia, the ECtHR 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.

  51. 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.

  52. 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 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”.

  53. 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.

  54. The High Court Judgment

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

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

  57. 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.

  58. 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.

  59. 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. But 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)

  60. 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.

  61. 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.

  62. 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 international 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.

  63. Adjudication on Claims under Article 8

  64. 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.

  65. 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.

  66. 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.

  67. 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.

  68. Since the only potentially relevant basis in the context of these proceedings for having recourse to the terms of the Convention could be s. 2, the 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.

  69. 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.

  70. 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: -

  71. 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.

  72. 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.

  73. 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 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.

  74. 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.

  75. Interpretation of Article 8 of the Convention

  76. 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.

  77. Conclusion

  78. 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.

    Justice Denham

  79. 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.

  80. 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.

  81. 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.

  82. 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.

  83. The Facts

  84. 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.

  85. 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".

  86. Throughout 2003 P.L. attempted to conceive, travelling to Amsterdam on many occasions. However, it was unsuccessful and no child was conceived.

  87. P.L. sought assistance from fertility clinics in Ireland, but was refused on the basis that she was not in a heterosexual relationship.

  88. In 2004 P.L. attended a fertility clinic in London and, during the year, she attempted to become pregnant.

  89. From the beginning of 2005 P.L. returned to the arrangement with J.C. and his donations continued until July, 2005.

  90. 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.

  91. 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".

  92. 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.

  93. 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.

  94. In late July, 2005 the father indicated to the respondents that he would be interested in proceeding.

  95. 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.

  96. On the 25th August, 2005 the father called to visit and met P.L., who informed him that she was pregnant.

  97. 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.

  98. The signed contract stated:–

  99. 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 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.

  100. 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".

  101. There were conflicts of evidence as to the relationship between the parties. The learned trial judge noted that there was evidence of a 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.

  102. 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".

  103. 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.

  104. 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.

  105. 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.

  106. 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.

  107. 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.

  108. 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.

  109. 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 parte from Abbott J. in the High Court, an interim order restraining the respondents from removing the child from the jurisdiction.

  110. 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.

  111. 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

  112. 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.

  113. 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:–

  114. 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.

  115. The High Court considered the s.47 report of Dr Gerard Byrne and concluded:–

  116. 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.

  117. The learned High Court judge considered the agreement between the parties and held that:–

  118. 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 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.

  119. The learned trial judge considered the rights of the natural mother. He concluded:–

  120. 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.

  121. 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).

  122. 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.

  123. 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.

  124. 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:–

  125. .... 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.

    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.

  126. The High Court, having summarised Dr. Byrne's central findings, held:–

  127. 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.

  128. 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.

  129. 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.

  130. 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.

  131. 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.

  132. The Appeal

  133. 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.

  134. Submissions

  135. 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.

  136. 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.

  137. Decision

  138. 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.

  139. 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.

  140. 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.

  141. The Test

  142. 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:–

  143. (1)

    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 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

  144. 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, 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.

  145. 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.

  146. 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.

  147. Factors

  148. 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.

  149. Agreement

  150. 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.

  151. 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.

  152. 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.

  153. 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.

  154. The Section 47 Report

  155. One factor to be considered is the s.47 report. Section 47 of the Family Law Act 1995 provides:–

  156. (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.

  157. 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:–

  158. 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.

  159. 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. 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.

  160. 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.

  161. 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.

  162. Family

  163. 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.

  164. I am satisfied that the learned High Court judge erred in his analysis of the family under Irish law.

  165. The Family under the Constitution

  166. The Constitution of Ireland 1937 gives to "the family" an important role in the State. Article 41 provides:–

  167. 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.

    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.

  168. 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:–

  169. .... 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.

  170. Therefore, arising from the terms of the Constitution, "family" means a family based on marriage, the marriage of a man and a woman.

  171. de facto family

  172. 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.

  173. 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.

  174. 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

  175. 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:–

  176. 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 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.

  177. 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.

    The European Convention on Human Rights Act, 2003

  178. 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:–

  179. (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.

  180. 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:–

  181. 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.

  182. 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:–

  183. 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.

  184. 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.

  185. 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 Human Rights had not itself recognised a lesbian couple to be a de facto family, yet he went on to recognise them as such.

  186. He held:–

  187. 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.

  188. 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.

  189. 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:–

  190. 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.

  191. 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:

  192. .... 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.

  193. 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.

  194. 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.

  195. 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.

  196. 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.

  197. 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:–

  198. 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.

  199. 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.

  200. Deception

  201. 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.

  202. 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.

  203. Decision

  204. 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.

    1. 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 loving and caring situation for the child. These are important factors to which I attach significant weight.

    2. 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.

    3. 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.

    4. The father formed a bond with the child when he was born.

    5. 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.

    6. 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.

    7. 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.

    8. 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.

    9. 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.

    10. The learned trial judge erred in the weight he attached to the s.47 report, as stated earlier in this judgment.

    11. 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.

    12. 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 the relationships of the child are important factors in determining the best interests of the child.

    13. 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.

    14. The basic issue is the welfare of the child. Thus a fact based analysis of all the circumstances is required.

    15. 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.

    16. 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.

  205. Conclusion

  206. 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.

    Justice Geoghegan

  207. 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.

  208. 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 [see paras [140]-[141] above].

  209. 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:

  210. 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 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.

  211. 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 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.

  212. 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.

  213. 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.

  214. 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”.

  215. 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 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.

  216. 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.

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

  218. 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.

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

  220. 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.

  221. 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 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:

  222. 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.

  223. 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.

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

  225. 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. in G. v An Bord Uchtála [1980] I.R. 32 at p. 76 is relevant.

  226. 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.

  227. 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.

  228. 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.

  229. 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 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.

  230. 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.

  231. 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.

  232. 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:

  233. 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.

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

  235. 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:

  236. 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.

  237. 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.

  238. The next clause in this agreement/arrangement is headed “Contact arrangements” and it reads as follows:

  239. 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.

  240. 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 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.

  241. 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.

  242. 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:

  243. 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).

  244. 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”.

  245. The last clause in the agreement reads as follows:

  246. 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.

  247. 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.

  248. 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 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.

  249. 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.

  250. 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 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.

  251. 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.

  252. 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.

  253. 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 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.

  254. 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.

  255. 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 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.

  256. 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.

    Justice Fennelly

  257. 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.

  258. 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.

  259. 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.”

  260. 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.

  261. The Facts

  262. 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.

  263. 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.

  264. 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.

  265. 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.

  266. 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.

  267. 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.

  268. 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.

  269. 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.

  270. 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.

  271. 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.

  272. 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.”

  273. 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.

  274. 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.

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

  276. 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:

    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]

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

  278. 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.”

  279. 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.

  280. 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.

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

  282. 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:

  283. 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.

  284. 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.

  285. 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.

  286. 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.

  287. 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 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.

  288. 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.

  289. 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.

  290. 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.

  291. 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.

  292. 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.

  293. Evidence of Child’s Welfare

  294. 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.

  295. 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.

  296. 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.

  297. 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.

  298. 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.

  299. 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.

  300. 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.

  301. 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.

  302. 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.

  303. 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.

  304. 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.”

  305. Interlocutory Proceedings

  306. 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.

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

  308. 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.

  309. 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:

  310. 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.”
     

  311. High Court Judgment

  312. 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;

    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.

      1. 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;

      2. 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;

      3. 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”;

      4. 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;

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

      6. 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;”

      7. 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.

  313. The Appeal

  314. 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.

  315. 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 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.

  316. 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.

  317. The Attorney General has made written submissions in respect of:

    1. the interpretation and application of the Convention;

    2. the status of the agreement on sperm donation;

    3. 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.

  318. 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 facto family 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.

  319. 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.

  320. 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.

  321. The Issues

  322. 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.

  323. 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:

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

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

  324. 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:

  325. 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.

  326. 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.

  327. The Agreement

  328. 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.

  329. 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 a de facto family. The relationship between the child and P.L., his mother, and her right to custody is undisputed.

  330. Constitutional Right of the Mother

  331. 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:

  332. 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.

  333. 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 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

  334. 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:

  335. (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.

  336. In addition, s. 11(4) of the Act of 1964, as amended by s. 13 of the Act of 1987 provides:

  337. 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.

  338. 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.

  339. 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:

  340. 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.

  341. 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.”

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

  343. 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.

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

  345. 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.

  346. He concluded:

  347. 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.

  348. 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:

  349. 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.

  350. 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.

  351. 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;

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

  352. 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.

  353. 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.

  354. 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.

  355. 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.

  356. 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.

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

    the Convention Status of the Convention in Irish law

  358. 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:

  359. 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.

  360. 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;

  361. 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.

  362. 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

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

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

  365. 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 above [i.e. in this paragraph]. 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.

  366. 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.

  367. 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., 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.

  368. Interpreting the Convention: ECtHR or Domestic Courts

  369. 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.

  370. 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:

  371. 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.

  372. 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.

  373. 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 X was a transsexual who had undergone gender reassignment surgery. It continued:

  374. 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.

  375. 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.

  376. 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.

  377. 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.

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

  379. 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.

  380. 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 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.

  381. Article 8 provides as follows:

  382. 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.

  383. 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.

  384. 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:

  385. 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.

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

  387. 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.

  388. 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:

  389. 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.

  390. 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.

  391. 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 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.

  392. 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:

  393. 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

  394. 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.

  395. 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:

  396. .... 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.

  397. 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 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.

  398. 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:

  399. 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.

  400. 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 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.

  401. 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. v Health Service Executive. [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:

  402. 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.

  403. 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:

  404. It is in this context that the Court should weigh the claim by the respondents that the integrity of their family would be violated by any order of guardianship or access in favour of the applicant.

    [emphasis added]

  405. He found that:

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

  407. I am satisfied that these conclusions are erroneous. The respondents do not form a de facto family 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.

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

  409. 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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