McD. -v- L. & anor [2007] IESC 81 (10 December 2009)

McD. -v- L. & anor [2007] IESC 81 (10 December 2009)

The Supreme Court held that the welfare of the child is paramount and that the pre-conception agreement limiting the appellant's role is unenforceable insofar as it conflicts with the child's welfare. The Court found that Article 8 ECHR is not directly applicable in Irish law except as provided by the 2003 Act, and the High Court erred in treating the respondents and child as a de facto family with autonomous rights under Article 8. The appeal was allowed on the issue of access, remitting that issue to the High Court, but dismissed on guardianship.

Citation
[2007] IESC 81
Parties
Appellant: J McD; Respondent: PL; Respondent: BM
Jurisdiction
Ireland
Judgment Date
10 December 2009
Procedural Posture
Appeal / Supreme Court Judgment on Appeal From High Court
Outcome
Appeal dismissed on guardianship; appeal allowed on access; access issue remitted to High Court.
Legal Topics
Guardianship, Access to Child, Artificial Insemination, De Facto Family, Interpretation of European Convention on Human Rights, Status of International Treaties in Irish Law
Family Law Constitutional Law Human Rights Law Guardianship Access to Child Artificial Insemination De Facto Family Interpretation of European Convention on Human Rights +1 more

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Parties

J McD

Appellant

PL

Respondent

BM

Respondent

Procedural Posture

Appeal / Supreme Court Judgment on Appeal From High Court

Legal Issues

  1. 1 Whether the biological father (sperm donor) is entitled to guardianship and/or access to the child born to a same-sex couple via artificial insemination
  2. 2 Whether a same-sex couple and child constitute a 'de facto family' under Article 8 ECHR
  3. 3 Whether Article 8 ECHR is directly applicable in Irish law for such family status

Ratio Decidendi

The Supreme Court held that the welfare of the child is paramount and that the pre-conception agreement limiting the appellant's role is unenforceable insofar as it conflicts with the child's welfare. The Court found that Article 8 ECHR is not directly applicable in Irish law except as provided by the 2003 Act, and the High Court erred in treating the respondents and child as a de facto family with autonomous rights under Article 8. The appeal was allowed on the issue of access, remitting that issue to the High Court, but dismissed on guardianship.

Court Disposition

Appeal dismissed on guardianship; appeal allowed on access; access issue remitted to High Court.

Orders

  • Dismissal of appeal on guardianship issue
  • Allow appeal on access issue