Supreme Court allows access appeal for biological father but dismisses guardianship claim against lesbian couple.

THE SUPREME COURT

RECORD NO. 186/2008

Murray C.J.

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

BETWEEN

J McD

APPELLANT

AND

PL AND BM

RESPONDENTS

Judgment of Murray C.J. delivered on the 10th day of December 2009

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.

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

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

donated by JMcD.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

Status of the European Convention on Human Rights

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.

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.

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.”

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.

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:

“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.

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)

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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).

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).

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.

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.

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.

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.

European Convention on Human Rights Act 2003

Section 2 of the Act provides as follows:

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.

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.

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

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.

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.

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

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.

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.

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.

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.

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”.

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.

The High Court Judgment

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

above considerations.

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

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.

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.

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)

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.

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.

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.

Adjudication on Claims under Article 8

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.

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.

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.

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.

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.

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.

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: -

“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”.

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.

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.

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.

Interpretation of Article 8 of the Convention

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.

Conclusion

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.