The Supreme Court allowed a father’s appeal over access to a child conceived through sperm donation, but refused to appoint him guardian. It remitted the access issue to the High Court to decide the arrangements if the parties could not agree.
The judgment, delivered by Denham J. on 10 December 2009, concerned a boy born in 2006 to P.L. The father, J. McD., was identified in the judgment as the sperm donor and biological father. P.L. and B.M. had lived together since 1995 and cared for the child. The child was not represented in the proceedings.
The parties signed an agreement after P.L. became pregnant. It anticipated that the child would know the father and that he would have some contact, in a role described as a “favourite uncle”. The Supreme Court said the agreement was not enforceable, but could be considered insofar as it reflected the child’s best interests.
The High Court had refused the father’s applications for guardianship and access. On appeal, he argued, among other things, that the trial judge gave too little weight to his status as the child’s biological father and too much weight to a court-commissioned welfare report. The respondents submitted that the refusal was grounded in the child’s welfare and the conflict they said would follow from the father having a formal role.
The Supreme Court held that the High Court had erred in its approach to the report under section 47 of the Family Law Act 1995. The report was expert evidence to be considered with the other circumstances; the court was not bound to accept its recommendations or required to give it great weight.
The court also held that the High Court had erred in treating the respondents and child as a legally recognised “de facto family” or finding that the respondents had family-life rights under Article 8 of the European Convention on Human Rights. It said the child’s home life and relationships remained relevant to assessing welfare, regardless of that legal characterisation.
In its assessment, the Supreme Court gave significant weight to the child’s loving and settled home, while also finding that the father’s biological relationship, the bond he formed, and the general benefit to a child of a father’s company had not received sufficient weight in the High Court. It concluded that access was in the child’s best interests, but that guardianship should not be ordered at that time. The court specified no access schedule or conditions; it said those details required agreement or a High Court determination. It dismissed the appeal on guardianship and allowed it on access, remitting that issue to the High Court.