Supreme Court dismisses appeal in Irish custody case, prioritizing infant welfare over biological father's access rights.

THE SUPREME COURT

[S.C. No: 112/2007]

Denham J.

Fennelly J.

Finnegan J.

In the Matter of the Guardianship of Infants Act, 1964

In the Matter of the Family Law Act, 1995

In the Matter of the Child Abduction and Enforcement of Custody Orders, 1999

AND

In the Matter of H.L., an infant

BETWEEN/

J.MCD.

APPLICANT/RESPONDENT

AND

P.L. AND B.M.

RESPONDENTS/APPELLANTS

Judgment delivered the 19th day of July, 2007 by Denham J.

1. This is an appeal on an interlocutory matter by P.L. and B.M., the respondents/appellants, hereinafter referred to as 'the

respondents', from the judgment and order of the High Court (Abbot J.) of the 23rd March, 2007.

2. At the heart of this case is an infant, H.L.. J.McD., the applicant/respondent, hereinafter referred to as 'the applicant', is the

biological father of the infant, by means of artificial insemination. The respondents, who are both female, underwent a Civil Union

Ceremony in England in January, 2006.

3. The respondents wished to have a child. After months of consideration and discussion the applicant agreed to have a child with

the first named respondent by means of artificial insemination. The baby was conceived and the good news was shared with the

applicant's family.

4. In September, 2005 it was agreed to formalise the arrangement. There were a number of drafts of an agreement. Finally an

agreement was signed on 11th September, 2005. The agreement states that it would be in the best interests of the child to know his

biological father and that the child would know that the applicant is his father. It states that the applicant's role will be as a favourite

uncle and that he will be welcome to visit the child at times mutually convenient to the parties. It states that in the event of the first

named respondent's death that the applicant's contact with the child would continue uninterrupted, and that in addition his opinion

would be sought regarding the best guardianship arrangements for the child.

5. The infant was born in May, 2006, taking the applicant's first name as his second name. In the following months the parties visited

each other regularly, the applicant took the infant for walks in his buggy, and the parties had dinner in each others homes. The

applicant provided items to assist with the new arrival. The applicant offered financial assistance for the birthing, but this was

declined. The applicant also offered to assist with the child's day to day expenses, but this was declined. The applicant has informed

the respondents that he has opened a trust account for the infant, to which he makes monthly lodgements.

6. In September, 2006 the respondents' attitude to the applicant and his role with the infant altered. They informed him that the

parties had become too close and that a greater distance and formality was required. After this the applicant had only two further

contact visits with the infant, one in October, 2006 and one in November, 2006.

There has been no substantive hearing as yet in this case, thus the facts have yet to be determined. It was submitted by the

applicant that after November, 2006 he was giving the respondents the space they sought.

7. On hearing that the respondents were about to embark on a holiday in Australia with the infant, and that they were thinking of

relocating there, the applicant brought an action restraining the respondents.

8. The applicant sought and obtained an interim order. Subsequently, he obtained an interlocutory order, from which the respondents

have appealed. In that interlocutory order the High Court (Abbott J.) ordered:-

"a. The first and second named respondents be at liberty to remove the infant H.L. from the jurisdiction of this Court for

the purpose of a vacation in Australia from Sunday 25th March, 2007 returning to the jurisdiction of this Court on or

before midnight on the 9th day of May, 2007.

b. On the return of the child to the jurisdiction that his two passports (Irish and Australian) be lodged with the Registrar

of the Family Law List High Court by 4 pm on Monday 14th day of May, 2007.

c. On the return of the child to this jurisdiction the applicant, the respondents, their servants and agents, and any

persons having notice of the making of the Order, be restrained from thereafter removing the said infant from the

jurisdiction of this Court without the leave of this Court pending the determination of these proceedings.

d. Liberty to notify:-

i. the relevant Garda Síochána and Port Authorities, and

ii the relevant Northern Irish Police and Port Authorities,

iii the Australian Embassy.

e. The applicant be and he is hereby at liberty to amend the Notice of Motion herein dated the 22nd day of March 2007

so as to include therein a claim for interim access to the said infant H.L. - the said amended Notice of Motion to be

served on the solicitors for the respondents by the 20th day of April, 2007.

f. The Special Summons herein listed before the Master of this Court on the 18th day of April 2007 be transferred from the

Master's List to the Family Law List forthwith.

g. The said Special Summons and this Notice of Motion be listed for mention in the Family Law List on Friday the 18th day

of May, 2007."

On the 30th March, 2007 the learned High Court judge ordered that a named person be appointed for the purpose of the preparation

of a report, pursuant to s.47 of the Family Law Act, 1995, for the court.

9. The first named respondent took leave of absence from her employment to become pregnant and take care of the baby. The

respondents planned to visit Australia for a year, from March, 2007 to approximately May, 2008. The first named respondent is

Australian and she wished to give the infant an opportunity to spend time with her family. Her mother is unwell and unable to visit

Ireland. The second named respondent secured temporary employment in Australia, for the planned year away, and they have let

their home in Ireland.

10. The applicant was informed in March, 2007 of the respondents' plans. On 22nd March, 2007 the applicant instituted proceedings

under the Guardianship of Infants Act, 1964 seeking, inter alia, to be appointed guardian of the child and joint custody. He also

sought orders pursuant to the Child Abduction and Enforcement of Custody Orders Act, 1991 and Article 8 of the European

Convention on Human Rights. This substantive action has not yet been heard by the High Court.

11. Right to apply

The applicant has a right to apply to the court. Under s.6A of the Guardianship of Infants Act, 1964, as amended, it is provided:-

"(i) 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 guardian of the infant."

In J.K. v. V.W. [1990] 2 I.R. 437 this Court held that:

(i) s. 6A of the Act of 1964 gave a natural father the right to apply to be appointed guardian but it neither gave him the

right to be guardian nor equated his position at law with regard to the infant with the position of a father married to the

mother who is and must remain a guardian.

(ii) That the court must regard the welfare of the infant as the first and paramount consideration.

(iii) That the natural father did not have a constitutional right or a natural right identified by the Constitution to

guardianship of the child and s. 6A of the Act of 1964 did not declare or acknowledge that right although the blood link

between the father and the child and the possibility for the infant to have the benefit of the guardianship and society of

its father were one of many factors relevant to its welfare which might be viewed by the court.

Finlay C.J. stated:

"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.

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."

However, this appeal does not raise the substantive issues. At issue in this appeal is whether an interlocutory injunction should

restrain the infant from leaving the State pending the hearing of the application.

12. Issues

In fact there are two issues before this Court:-

(a) The injunction restraining the removal of the infant H.L. from the State.

(b) The appointment of an assessor pursuant to s.47.

13. Injunction

The first issue, therefore, is the interlocutory injunction restraining the removal of the infant H.L. from the State, pending the

determination of the proceedings, save for the six week period ending on the 9th May, 2007.

14. Test

The High Court identified the test to be applied, as follows:

"The basis upon which the Court in a case such as this should decide the case is firstly to decide whether there is a fair

question to be tried, or a fair issue to be tried, and then having decided if there is a fair issue to be tried then to consider

the balance of convenience … … … and in relation to this particular case as it is a case dealing with an infant, I consider

that the balance of convenience test should be tempered to a very large degree by the provisions of s.3 of the

Guardianship of Infants Act, 1964, that in determining a matter in relation to the upbringing etc, of a child and where that

is in question the Court shall have regard to the welfare of the child, as the first and paramount consideration".

The learned High Court judge considered the inconvenience to the respondents of unravelling their arrangements to go to Australia,

balanced against the interest the infant may have in having contact with the applicant. The High Court found that there was a bond

between the applicant and the child, formed very strongly on the part of the applicant which will be reciprocated imminently by the

child. Also the High Court found that the lack of employment or economic misfortune is not immediately in sight for the respondents,

although the second named respondent will suffer grave inconvenience and possible professional embarrassment by being unable to

travel to Australia as planned.

The High Court found:-

"It would appear to me that the balancing exercise should be swung in favour of the child remaining in the jurisdiction, and

within proximity of his father for the purpose of developing the relationship between father and child.

Notwithstanding the contract, and notwithstanding the mother, the first named respondent is now sole guardian of the

child and has her natural constitutional rights and is entitled to custody of the child to the exclusion of all persons, as

defined in the Guardianship of Infants Act. But notwithstanding that I have to consider that there is a fair question to be

tried in relation to the issue as to whether the father has a right to be appointed a guardian of the infant too, and I bear

in mind that he is not a stranger to the infant, as I said, and indeed the contract itself in some respects, and especially in

relation to arrangements on the death of the respondent, is indicative of a fair degree of merit in relation to an

application, even though the application results, if it is in favour of the applicant father, would run contrary to the

contract".

The High Court then held:-

"I consider that the loss of a critical year, a year when a bond is about to open up on an objective scale a reciprocal

scale between father and son is a period not to be missed if at all possible. I do not see any serious and irreparable loss

on the part of the respondents if they miss this year".

15. Submissions by respondents

It was submitted on behalf of the respondents that the High Court applied a test of balance of convenience tempered by

considerations of the welfare of the child, and that in this balancing exercise the potential relationship between the infant and the

applicant outweighed all other factors. It was submitted that the learned trial judge erred in applying such a test. It was submitted

that all the evidence was on affidavit and that this Court is in the same position as the High Court and may substitute its findings of

fact. It was submitted that the High Court erred in holding that the opportunity for the applicant to develop a relationship with the

infant outweighed other factors. The respondents submitted that the proper matters for the Court to take into account in assessing

the balance of convenience in a case concerning the removal of an infant from the jurisdiction is:-

"(i) That the welfare of a child, particularly a non-marital child, is best served in the custody of his mother.

(ii) That the first named respondent is the natural mother of the infant possessing a personal constitutional right to the

custody of her infant.

(iii) That the natural father does not possess any rights in relation to the infant, and his right consists of a right to apply

for access or guardianship.

(iv) That the parties have entered into a written agreement whereby the first and second respondents are acknowledged

to be the sole parents of the child, and the applicant is to have no part in the upbringing of the child. That the applicant's

contract with the child is at the sole discretion of the first and second respondents.

(v) That the first named respondent is the primary carer for the child, and that her proposals for the temporary relocation

of the child to Australia were reasonable and proportionate in all the circumstances of the case.

16. Submissions by applicant

The applicant submitted that the orders of the High Court should be upheld for the following reasons:-

(i) The agreement signed by the parties on the 11th September, 2005 was not a valid and binding contract.

(ii) The High Court was entirely correct to take a child-centred approach.

(iii) It was admitted that the applicant does not possess constitutional rights in relation to his son, but he possesses a

statutory right to apply to the courts for access and/or joint guardianship.

(iv) There are no reported Irish cases concerning access or guardianship applications of identifiable sperm donors.

However, the Court was referred to case law in other jurisdictions.

(v) It was submitted that the facts in the case would amount to the 'close personal ties' necessary to engage Article 8 of

the European Convention of Human Rights.

(vi) The Payne decision should not be followed in this jurisdiction, so the 'reasonableness' of the proposed relocation of

the respondent does not end the matter.

(vii) The planned relocation of the respondents cannot be labelled as a temporary relocation. It is a lengthy stay at a

critical time in the infant's development.

17. Balance of Convenience

On the matter of the injunction, there is a single issue before the Court, the balance of convenience. It was conceded that there was

a fair issue to be tried. Obviously this is not a case where damages would be an adequate remedy. Therefore the single issue for the

Court is the determination of the balance of convenience on the facts before the Court. To do this the Court has to weigh the

relevant factors. There is no exhaustive list of relevant factors in assessing the balance of convenience. The exercise is required to

be carried out in the context of all the circumstances of a case. In this situation the Court seeks to weigh the factors and take the

course involving the least risk of injustice. Thus it is necessary to consider the risk of injustice to the parties. Where the risk of

injustice is evenly balanced then there may be merit in preserving the status quo. Some cases may have special factors. In this case

a significant factor is the welfare of the infant.

18. An infant

At the core of this case is the infant, H.L.. His welfare is of paramount importance. While submissions were made by counsel as to the

balance of convenience to the applicant and to the respondents, no counsel was before the Court to make submissions on behalf of

the infant. In a case such as this, I would have found it of great assistance to have the benefit of such a submission.

19. Case Law

There is no specific statutory law on the issue before the Court, nor any Irish case law. This case brings novel matters before the

Court.

Counsel referred to cases from other jurisdictions. None were directly on point. The Court was referred to the English case of R.M.

(Sperm Donor Father) [2003] Fam Law 94, where a lesbian couple had advertised for a man to father a child, saying they were happy

for the father to act as a father figure to the child, subject to them being the primary carers; the applicant applied and ultimately a

child was born. After the child was born the couple became concerned that there was too much involvement with the father. Apart

from initial visits after the birth they did not let him have further contact. He applied for contact and a parental responsibility order.

Black J. made a defined contact order and adjourned the application for parental responsibility. She held that there was advantage in

sharing contact with the father at an early age.

In X. v. Y. 2002 GWD 12-344 a Scottish case, Sheriff Laura Duncan held in Glasgow Sheriff Court that a homosexual sperm donor had

parental rights in relation to a child conceived with his sperm and being brought up by a lesbian couple, including the mother. In that

case it was held that the child had family ties and Article 8 of the European Convention on Human Rights applied to their relationship,

that it was in the best interest of the child that the applicant was involved with decisions as to his education etc.; that it was in the

best interest of the child that he have contact with that applicant.

Re Patrick (2002) 28 Fam LR 579 was the first Australian case to deal with the issue of whether a sperm donor has a right of contact

with the child under family law. In that case the facts were of the father as a homosexual sperm donor, a lesbian couple and a two

year old child. While that case was grounded on Australian Family Law it was based on the principle that the welfare of the child is

the paramount consideration of a court, and the court ordered contact visits between father and child.

This Court was referred to conflicting decisions from other jurisdictions on the issue of relocation of a primary carer, with consequent

affect on the other parent. None of these cases are entirely on the point at issue in this case. Many relate to married couples who

subsequently separate. The factual contexts are not very relevant to this case. In this case it appears that all parties are bona fide

in their motives. The wish to relocate is temporary - for a year. However, it does not relate to a significant career enhancing

opportunity for the mother, as in R A (Temporary Removal from Jurisdiction) (2004) EWCA Civ 1587. The mother's partner has an

offer to work for a year in Australia. The primary motive for the relocation does not appear to be this career move. Rather, it appears

to be because the first named respondent is Australian and she wishes the infant to have contact with her family. However, contact

was achieved in the six week visit to Australia which took place in the Spring of this year.

All in all, I find none of the case law from other jurisdictions to be of assistance on this interlocutory application, this appeal should be

decided on first principles, on the facts. Consequently, the paramount issue is the welfare of the child. There is a dearth of fact on

that issue, and consequently, the issue is rendered more difficult to decide.

20. Factors

In considering the balance of convenience in this case, the factors in favour of the respondents include the following:- the welfare of

the infant is best served in the custody of the first named respondent, the mother; the mother has a constitutional right to the

custody of her child; the first named respondent is Australian and wishes her child to know her family; the parties have entered into a

written agreement; the first named respondent is the primary carer for the child; the respondents propose a temporary relocation to

Australia, until June, 2008; this is a reasonable and proportionate plan; the second named respondent is the breadwinner and she has

taken leave of absence from her job for a year and a temporary job in Australia until June, 2008; the respondents have let their house

in Ireland for the year.

On the other hand the factors in favour of the applicant include that he is the biological father; he entered into a agreement with the

respondents as to the infant (which will be an issue in the substantive case); he has a right to apply to court for access and joint

custody; the applicant has applied to the High Court and this application has to be determined; even if, as appears to be accepted,

the relocation to Australia is only for a year, this is at a formative age of the infant.

21. Welfare of the infant

The critical factor in the balancing required of the Court in this case is the welfare of the infant - on which the Court has had no

expert assistance. The Court heard submissions by the parties as to their view of the balance of convenience, but that must be

considered as being tinted by their interests.

The welfare of the infant is of paramount importance. In the vacuum of information as to the welfare of the child the Court must use

the fulcrum of justice in seeking the balance of convenience. In the circumstances I am satisfied that the welfare of the child must be

a weighty factor. In making this decision I do so with the infant in mind. Consequently, I would affirm the judgment of the High Court.

However, from this decision, that the balance of convenience lies in dismissing the appeal, it should not be inferred as presuming

rights for the applicant. While the applicant has launched his application, those matters have yet to be decided by the High Court. I

make no decision on those matters, and nor should any be presumed from this judgment.

I am guided by the paramount importance of the welfare of the infant, by the young age of the infant, by the fact that a year is a

long time in the life of a developing infant, and by the injustice that would be done to the infant if the applicant is ultimately

successful in his application.

22. Section 47 Assessor

The second issue is the appointment of an assessor pursuant to s.47. The respondents submitted that this appointment was not in

the interest of the welfare of the child; that it is not necessary to address the issue before the High Court decides whether the

applicant should have access, and/or guardianship of the infant, and also that such assessment should not be directed prior to the

High Court decision on whether the contract entered into between the parties is binding. On behalf of the applicant it was submitted

that it was necessary to observe and monitor the interaction of the infant and the natural father as they get to know one another

through successive experiences of contact.

In the circumstances I am satisfied that the High Court would be assisted by a s.47 report. It would be relevant to the fundamental

issue in the case - the welfare of the child. Consequently, I would affirm this decision of the High Court also.

23. Conclusion

For the reasons given I would dismiss the appeal, affirm both interlocutory orders of the High Court, and remit the matter to the High

Court so that the application may proceed. I note that the usual undertaking as to damages was given to the Court by counsel on

behalf of the applicant.