Sperm donor wins access to son

The Supreme Court has ruled the gay friend of a lesbian couple who donated his sperm to one of them so she could have a child is entitled to access to the child but is not entitled "at this time" to guardianship.

In a landmark decision today, the five judge court today partially allowed the appeal by the man against a High Court decision which had refused him both guardianship of and access to the now three year old boy.

Lawyers for the man, who was in court, said he was "very happy" with the outcome.

The lesbian couple, who took part in a civil union ceremony in England some years ago, were not in court.

The court stressed the basic and paramount issue in the case was the welfare of the child and it also found the High Court had erred in finding the European Convention of Human Rights Act 2003 has a bearing on the case.

The Chief Justice, Mr Justice John Murray, said the High Court had no jurisdiction to apply Article 8 of the ECHR, which provides for a right to family life, to the status of the lesbian couple and the child.

In dismissing the man's case in the High Court, Mr Justice John Hedigan had ruled there was nothing in Irish law to suggest a family of two women and a child “has any lesser right to be recognised as a de facto family than a family composed of a man and woman unmarried to each other and a child'”.

In her judgment today, Ms Justice Susan Denham noted the lesbian couple have lived for years in a loving relationship and provide a settled and loving home for the child. These were critical factors in the case, she said.

She said the lesbian couple and the child are not a family under the Constitution of Ireland and therefore their relationship may not be weighed as such in the balance against the father of the child. There was also no institution of a "de facto family" in Ireland and the High Court had erred in its analysis of this.

She also found the High Court judge erred in applying the European Convention of Human Rights to the case and in his finding the lesbian couple had rights under Article 8 of the Convention.

While the fact the man is the biological father of the child was not a determinative factor in the case, the High Court judge had given insufficient weight to it, she added. Nor had he given sufficient weight to the fact there is generally benefit to a child to have the society of their father.

The father, who was a sperm donor, has rights as a natural father as provided for in the Guardianship of Infants Act to apply to be appointed guardian of the child, she said. It was for the court to decide what was in the best interest of the child.

The basic issue was the child's welfare and a fact based analysis of all the circumstances of the case was required, she said. The child's welfare being paramount, she was satisfied in all the circumstances of this case there should be no order for guardianship made in relation to the father at this time.

"As in all family law matters, issues may be re-addressed in changed circumstances," she added.

She said she would also make an order enabling access by the father to the child as this was in the best interests of the child. She hoped the parties could agree on how access would be carried out but, if not, the matter would be determined by the High Court.

In separate judgments, the Chief Justice, Mr Justice Hugh Geoghegan and Mr Justice Nial Fennelly also allowed the appeal in relaiton to access but not guardianship. Mr Justice Adrian Hardiamn said he agreed with Mr Justcie Fennelly's decision.