The Supreme Court has allowed J McD’s appeal on access to his child and sent that issue back to the High Court for decision. It dismissed his appeal against the refusal to appoint him guardian. The court’s order was limited to access; it did not itself grant access or decide what arrangement would serve the child’s welfare.
The judgment, delivered by Chief Justice Murray on 10 December 2009, concerned a child born in 2006 after PL became pregnant through artificial insemination using sperm donated by J McD. PL and BM, a couple who had entered a civil union in the United Kingdom in 2006, had agreed with J McD that they would have full care and custody, while his role would be that of a “favourite uncle”. The judgment records that the agreement was treated as unenforceable for deciding the case, though relevant as background. The child’s welfare remained the first and paramount consideration.
After the child’s birth, J McD sought to establish a relationship as the biological father, including access and guardianship. He did not seek custody. Murray CJ agreed with the other judges who concluded that the evidence did not support an inference that J McD had deceived PL and BM about seeking a father relationship after the birth. He also agreed that the High Court had given undue weight to a psychiatric report obtained under section 47 of the Family Law Act 1995, and that ordinary rules of evidence applied to the report.
The Supreme Court also set aside the High Court’s ruling that PL, BM and the child constituted a “de facto family” entitled to rely directly on Article 8 of the European Convention on Human Rights. Murray CJ said the Convention was not generally part of Irish domestic law and could be used to interpret a statutory provision or rule of law only within the limits set by section 2 of the European Convention on Human Rights Act 2003. The High Court had not identified a provision or rule of law to interpret and had no basis to apply Article 8 as an independent claim in this case.
That did not mean BM’s relationship with PL and the child could be ignored. Murray CJ said it could be considered as a factor in assessing the child’s interests, alongside the rights held under domestic law. The Supreme Court remitted the access issue to the High Court. The judgment does not record the outcome of that later determination.