Lesbian couple’s appeal of sperm donor ruling fails
The man secured the injunction from Mr Justice Henry Abbott in the High Court this year pending the outcome of proceedings in which he wants to be awarded guardianship and joint custody of the boy.
By a two to one majority, the Supreme Court yesterday dismissed the couple’s appeal against that injunction. Giving the judgment — which was backed by Mr Justice Joseph Finnegan — Ms Justice Susan Denham agreed with the High Court that the paramount issue was the boy’s welfare, that a year was a long time in the life of a developing infant, and the balance of convenience lay in his remaining here pending the determination of the man’s rights.
She stressed her decision should not be inferred as presuming rights for the father as those issues had yet to be decided.
Dissenting, Mr Justice Nial Fennelly said the man’s only relationship with the child “is as a sperm donor” and the injunction would alter the status quo in favour of the man. This case was “utterly unique” but the course adopted by the High Court judge so far meant the rights of the man to have access to the child would be established as a “fait accompli” before a full hearing. In his view, the High Court had mistakenly found there was a fair issue to be tried in the full action as to whether the man has a right to be appointed guardian of the child.
Ms Justice Denham said the couple had wished to have a child. The man agreed to have a child with one of them by means of artificial insemination.
The parties signed an agreement in September 2005 which stated it would be in the best interests of the child to know his biological father, that the child would know the man as his father and the man’s role would be as a favourite uncle.
The parties often visited each other after the birth. The man took the boy for walks, provided items to assist with the child, offered financial assistance — which was declined — and opened a trust fund for the boy. Months later, the couple told the man the parties were too close and a greater distance was required.
When the man heard they were to go with the boy to Australia and were thinking of relocating there, he initiated proceedings. The couple were to visit for a year from spring 2007. The boy’s mother is Australian and wished for her son to get to know her family.
Pending the outcome of his proceedings, the man secured an interim order under which the couple were permitted to bring the boy on holiday for six weeks only and were restrained from removing the child again from Ireland without the leave of the court.
Ms Justice Denham said the issue in the appeal was if the balance of convenience favoured the injunction continuing. The couple conceded there was a fair issue to be determined in the full action as to whether the man has a right to be appointed the child’s guardian.
It appeared both sides were acting in good faith. While the couple wished to relocate for a year so the child could know his mother’s family, such contact had occurred when they spent six weeks in Australia.
The paramount issue was the child’s welfare on which there was “a dearth of fact” and no expert assistance, making it more difficult to decide. The infant was also not represented and it would have been “of great assistance” to have heard submissions on his behalf.
The judge said she was guided by the fact a year is a long time in the life of a developing infant and the man would suffer an injustice if he ultimately won his case.
Disagreeing, Mr Justice Fennelly said it was important to identify the “radically different legal and constitutional positions” of the man and the child’s mother.
The mother has natural and constitutional rights from her relationship with the child, whereas the man was not the father by virtue of membership of a family based on marriage to the mother and had no constitutional relationship with the child. His status was “very different from that of an unmarried father” who had an established relationship with the mother.
The mother’s proposal to go to Australia with her child for a year was a “reasonable thing to do” and she had at least the right to choose to do it. There was an issue whether the man had a right to question that decision and he had produced no evidence to show it would compromise the child’s welfare.
The issue of whether a child’s welfare would be best served by being reared by a same-sex couple, one of whom was his natural mother, or by a person whose only relationship with him was as a sperm donor created a novel situation for the courts, the judge said. The High Court, by preventing the child going abroad for a year, had made a decision tantamount to deciding the issue.
The court should attach importance to the sides’ agreement which stated the man “is a friend and has agreed to act as a sperm donor” and “agrees that the child’s parents are X and Y (names of the couple)”.
That agreement was difficult to reconcile with the notion of the man becoming a guardian of the child.
The man had claimed the agreement should be declared void as contrary to public policy. While that was for the High Court to determine, the agreement could not at this stage be assumed to be invalid.
