A five-judge panel of the Supreme Court of Ireland, unanimously reversing a trial judge, ruled on December 10 that a lesbian couple and their child do not constitute a legally-recognized family in Ireland and that the gay man who had donated sperm used to conceive their child was entitled as a biological father to seek access to the child in the form of a visitation schedule. However, the court upheld the trial judge’s decision that it would not be appropriate to appoint the sperm donor as a legal guardian of the child, although he was entitled by Irish law to apply for such an appointment.
In the course of reaching its decision in the case of J. McD. v. P.L. & B.M., the court also ruled that the trial judge, who formerly sat for many years as a judge of the European Court of Human Rights, had erred in concluding that the lesbian couple and their child would be regarded as a family under Article 8 of the European Convention on Human Rights. Such family status, if it were recognized in Ireland, could weigh heavily in balancing their rights as against any rights claimed by the sperm donor. Instead, according to the Supreme Court, the term "family" as used in the Irish Constitution is solely based on a married couple.
The case received a fair degree of notoriety in the media early in 2007, when a different trial judge issued an order sought by the father to keep the mothers from moving to Australia with the child. That order was affirmed by the Supreme Court in response to an emergency appeal.
According to the lead opinion for the court by Justice Susan Denham, the mothers had reached an agreement with a different man to be their sperm donor in 2003, but after several unsuccessful attempts P.L. was unable to become pregnant, and the original donor lost interest. Then the women became friendly with John McD., who offered after some initial hesitation to step in as the sperm donor. They took a written agreement that had been drafted by the prior sperm donor and adapted it to the new arrangement. Under the agreement, McD was not to have any parental rights or obligations, but was to assume the role of a "favorite uncle" with the child with visitation at the discretion of the mothers. This agreement was signed shortly after P.L. became pregnant with sperm donated by McD. The mothers entered into a civil partnership in the U.K. after that status became available in 2005, but this is not recognized in Ireland.
After the child was born, McD became intensely interested, visited more frequently than the women desired, and appeared to them to be poised to attempt to assert a great role than they had contemplated. They sought to temper his enthusiasm by reduced contact, and then announced that they would be traveling to Australia, P.L.’s native country, to introduce the child to P.L.’s family and spend some time there. McD, alarmed at losing contact, instituted the lawsuit under a statute authorizing unmarried biological fathers to seek appointment as legal guardians, seeking such an appointment, joint legal custody, and formal visitation rights. He also sought an order that the child not be removed from Ireland pending the outcome of the suit.
At the time, the trial judge hearing McD’s emergency motion determined to let the mothers take their child to Australia for a few months, but required that they return and stay with the child in Ireland until the case was decided on its merits. During the course of the proceedings, the High Court (that is, the trial court in this case) required the mothers to provide some visitation opportunities for McD, which went off without incident.
However, the trial judge on the merits, John Hedigan, giving great weight to a report prepared by a neutral expert who had interviewed all the parties and who recommended against any compelled contact with McD. Hedigan decided that it was inappropriate to appoint McD as guardian under the circumstances, and that the mothers and their child constituted a "de facto" family which should not be disturbed by requiring access to the child for McD. In reaching this conclusion, Hedigan found that the result would be consistent with Ireland’s treaty obligations under the European Human Rights Convention, finding that under the Convention the lesbian couple and their child would be considered a "family" whose integrity would have to be respected under the law.
The Supreme Court emphatically disagreed with all but one of these conclusions, however. As to the guardianship decision, all the judges agreed that appointing McD a legal guardian of the child would not be in the child’s best interests, given the hostile relationship that now exists between McD and the child’s mothers and the circumstances under which the child was conceived. Such guardianships are more usually set up in cases involving unmarried cohabitation of a different-sex couple with their child, and are intended to provide a legal bond between father and child in such circumstances to protect the relationship.
In this case, however, McD never had such a relationship with the lesbian couple, being merely a casual friend who agreed to donate sperm, and who had signed an agreement foreswearing any desire to be a legal parent. While the court found that such written agreements are not legally enforceable, and noted that the parties had not even signed it until after P.L. became pregnant, it concluded that the agreement was evidence of the arrangements to which the parties had agreed.
Justice Denham concluded that Judge Hedigan had given undue weight to the expert’s report, and that the overriding goal of Irish family law is "to place the child’s welfare as the first and paramount consideration." The court also concluded that Hedigan was mistaken about European Convention law, finding that the European Court has not yet issued any decision holding that a same-sex couple, with or without children, should be considered a "family" for purposes of Article 8 of the Convention, and that in any event Ireland’s accession to the convention treaty did not require subjugating domestic Irish family law to European Court precedents in an individual case. In a separate opinion, Justice John Murray produced an extensive discussion of the complicated interrelationship of Irish domestic law and European human rights law.
The court also decisively rejected Judge Hedigan’s conclusion that the mothers and child could be considered a "de facto" family for purposes of Irish domestic law. The Irish Constitution provides that "the State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antedecent and superior to all positive law," and specifically provides that the State, "therefore, guarantees to protect the Family in its constitution and authority." However, according to Justice Denham, although the Constitution does not "expressly" define the term family, court decisions have unanimously considered that only a marriage is a necessary element for a legal family in Ireland. Unmarried cohabitants may have certain rights and protections under Irish law, but their relationship is not considered a family.
"There is no institution in Ireland of a de facto family," wrote Justice Denham. So when custody and visitation issues arise in cases involving unmarried parents, the special legal status of a family in Irish law is not involved, and the court is to make its decision based on the welfare of the child. In this case, wrote Denham, "The Respondents are a loving couple, taking care of the child, in a settled environment," and this is a "key factor" in determining that McD should not be appointed a legal guardian.
Since the written agreement was not a legally enforceable contract and European Human Rights law was deemed irrelevant, the court decided that the issue of visitation should be determined based on the best interest of the child. "Applying the test to all the circumstances of the case," wrote Justice Denham, "I would make an order enabling access by the father to the child. This is in the best interests of the child. I would envisage this contact at stated times during the year. It may be on one day a month. It may vary according to circumstances. It may vary as time goes by and the child grows up. It may commence by access of the father and child in the cmopany of another. I make no decision on these details and none should be inferred. These are matter which require to be decided. Indeed this result is not very different from the original agreement entered into between the parties."
Justice Denham, echoed by the other judges (three of whom wrote separate opinions explaining their concurrence with the court), expressed a preference for a settlement by the parties rather than a court order. "It may be possible for the parties to arrive at an agreement without the necessity of returning the matter to the High Court to hear parties and to determine the details of access," she wrote. "However, it if is not possible for the parties to reach an agreement on access, I would remit the matter to the High Court for a hearing and determination on that issue."
Among the matters that the parties would have to determine would be whether and how frequently the mothers could take the child with them to visit P.L.’s family in Australia, which is likely to be a continuing point of contention. But all that has yet to be worked out.
LGBT rights campaigners in Ireland immediately responded to the court’s decision with disappointment at the rejection of the de facto family concept, as the national legislature was poised to take up a proposal by the government to enact a Civil Partnership law to provide some legal status short of marriage for same-sex couples. The Irish Times reported on December 11 that Brian Sheehan, director of the Gay and Lesbian Equality Network, said that the court’s judgment highlighted "the importance and urgency of providing legal support and recognition" for same-sex partners and their child. "Providing a legal framework for parenting, with the welfare of the children the paramount guiding principle, will also help clarify obligations and responsibilities from the outset," he told the newspaper.
