The Supreme Court has dismissed an appeal by two respondents against orders restricting their infant’s removal from the State and appointing an assessor to prepare a report on the child’s welfare. The ruling leaves the underlying guardianship and access proceedings for the High Court to determine.
The appeal concerned an interlocutory injunction, not the merits of the biological father’s applications. The court said it made no decision on whether he should be appointed guardian or receive access, and that no such rights should be inferred from its judgment.
The father, identified in the judgment as J.McD., conceived the child with the first respondent through artificial insemination. The judgment records that the parties signed an agreement in September 2005 describing his intended role as a “favourite uncle” and providing for visits at mutually convenient times. After the child was born in May 2006, the parties saw one another regularly. Their contact reduced after the respondents said they wanted greater distance and formality.
In March 2007, the father began proceedings seeking, among other things, guardianship and joint custody. The respondents planned to take the child to Australia for about a year. The High Court permitted a six-week visit, ordered the child’s Irish and Australian passports to be lodged with the court on return, and restrained further removal from the jurisdiction without leave while the proceedings continued. It also appointed an assessor under section 47 of the Family Law Act 1995.
The respondents argued that the High Court gave too much weight to the prospect of a relationship between the child and the father, and that the mother’s role as primary carer, her custody rights and the parties’ agreement supported the proposed move. The father argued that the agreement was not binding and that the child’s welfare supported maintaining the possibility of developing their relationship. These were submissions, not findings on the underlying dispute.
The Supreme Court said the parties accepted there was a fair issue to be tried. It focused on the balance of convenience, considering the risk of injustice and the child’s welfare. It noted that it had little information about the child’s welfare and no submissions had been made on the child’s behalf. Given the child’s young age and the potential consequences if the father later succeeded, the court affirmed the High Court’s interlocutory orders.
The court also upheld the appointment of an assessor, finding a section 47 report could assist the High Court on the child’s welfare. It dismissed the appeal and remitted the matter to the High Court for the application to proceed. The judgment notes that the applicant gave the usual undertaking as to damages.