A lesbian couple who reached an agreement with a man to father a child with one of them by artificial insemination have lost a Supreme Court appeal against an injunction restraining them travelling to a long-haul destination for a year with the one-year-old boy.
The man secured the injunction from Mr Justice Henry Abbott in the High Court this year pending the outcome of proceedings - described by the Supreme Court as raising "utterly unique" issues - in which he wants to be appointed to guardianship and joint custody of the boy.
By a 2/1 majority, the Supreme Court yesterday dismissed the couple's appeal against that injunction.
Giving the majority judgment with which Mr Justice Joseph Finnegan agreed, 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.
Her decision should not be inferred as presuming rights for the father as those issues had yet to be decided, she stressed.
Dissenting, Mr Justice Nial Fennelly said the man's only relationship with the child "is as a sperm donor" and the injunction would inevitably alter the status quo in favour of the man. This case was "unprecedented" but the High Court judge's approach to it so far meant the rights and relationship of the man to the child would be established as a "fait accompli" before there was a full hearing on the merits.
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 an entirely novel situation for the courts here, the judge said. He could not express even a provisional view on that matter but the High Court, by preventing the child going abroad for a year, had made a decision tantamount to deciding that very complex issue.
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, he added.
In her judgment, Ms Justice Denham said the couple, who have undergone a civil union ceremony in England, 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 visited each other regularly after the birth. The man took the boy for walks in his buggy, provided items to assist with the child and offered financial assistance, which was declined, and opened a trust fund for the boy. Some months after the birth, the couple told the man the parties had become too close and a greater distance and formality was required.
When the man heard they were about to go on holiday to a long-haul destination with the boy and were thinking of relocating there, he initiated proceedings. The couple had made arrangements to visit a long-haul destination for a year from spring 2007. The boy's mother was from there and wished her son to have an opportunity 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 some six weeks only and were restrained from removing the child again from Ireland without the leave of the court.
The issue in the appeal was whether the balance of convenience favoured that injunction continuing, Ms Justice Denham said. It was conceded by the couple there was a fair issue to be determined in the full action as to whether the father has a right to be appointed guardian of the infant as well as the mother.
It appeared both sides were acting in good faith and the court had to balance their interests. While the couple wished to relocate temporarily for a year, primarily so the child could get to know his mother's family, such contact had occurred when they spent six weeks in that country.
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 that the man would suffer an injustice if he ultimately won his case. On that basis, she upheld the High Court decision.
