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In McD v L [2007] IESC 28, the Irish Supreme Court granted a sperm donor visitation rights to a child born via artificial insemination. The case has been viewed as a victory by advocates for the rights of sperm donors and the men's rights movement applicant was unsuccessful in their appeal.

Background
This case concerned two respondents, two women who were in a relationship as a lesbian couple. In 2006 they entered a civil union in the United Kingdom. The biological father of the child the subject of proceedings was a homosexual and the appellant. In 2006, The mother L became pregnant. This was done by artificial insemination and the sperm used was donated by the appellant under an agreement. This agreement was that the appellant would behave as a “favourable unkle”. In 2008, the high court granted an injunction which prevented the respondents from taking the child from the jurisdiction.

This was appealed to the Supreme Court where they dismissed this appeal. The High Court felt that a de facto family unit was present forming of the child and respondents. Any access to the father would negatively impact the integrity of the family.

Holding of the Supreme Court
During appeal, many different issues arose; was the agreement between the respondents and appellant enforceable, did the sperm donor have a right of access to the child, could the sperm donor become and whether the child, respondents and sperm donor make a de facto family under article 8 ECHR. The appellant wanted access to the child and also wanted to become joint guardian of the child with the mother.

The Supreme Court decided that an appeal would be heard only on the matter of access to the child. The child's welfare was the most important factor in the decision making by the court. They said that this matter was down on the high court decide on. Denham J was the opinion that allowing the child access to its father would be in the best interests of that child. The court decided to refuse the appeal to allow the father to be appointed as the guardian of the child. The court decided that the agreement between the couple and the father was not actually enforceable. There was no suggestion that the appellant had the desire to have a “father” relationship with the child. Murray J addressed the issue on the European Convention on Human Rights. He decided that it didn’t directly apply as a part of the law of the State. Only in certain situations could it be relied on in the European Convention on Human Rights Act 2003. Article 8 should not have been applied in relation to the status of the respondents and the child by the High Court as they did not have the power to do this. The Court disagreed with the conclusions of the Court below as to the obligations incumbent upon the courts applying the articles of the convention, as to their obligations to fashion a remedy as required. Obiter: The concept of a de facto family did not exist under Irish law, pursuant to Article 8 ECHR, as the trial judge had found. Article 8 was not engaged as regards the relationship between the father and the child. This case was different from GT -v- KAO (also involving unmarried parents in an application under the Hague Convention), in that here, both the High Court and the Supreme Court found the service of District Court proceedings by the applicant father on the respondent mother (seeking guardianship) meant the court had “right of custody”, which had been breached.

Three of the four Supreme Court judgments strongly rejected the idea that „de facto families‟ had any legal status or any rights in Irish law, referring to the well-known statement of Henchy J in State (Nicolau) v An Bord Uchtala : “For the state to award equal constitutional protection to the family founded on marriage and the „family‟ founded on an extramarital union would in effect be a disregard of the pledge … in article 41.3.1 to guard with special care the institution of marriage.” On the role of the ECHR, the Chief Justice said that it was not directly applicable in Irish law and had no direct effect other than through the ECHR Act 2003, which was quite limited. He said: “The learned trial judge had no jurisdiction to consider the claims [of the parties] under article 8 of the convention.” Judge Fennelly argued that the European Court of Human Rights had not so far accepted that same-sex couples were protected by article 8 of the convention. He said the High Court judge had been interpreting the convention directly, and he warned against the domestic courts outpacing‟ the Strasbourg court. Mr Justice MacMenamin said the jurisprudence of the ECtHR was by no means clear in protecting the relationship between unmarried fathers and their children, and had stated that there could be an objective and reasonable justification for the difference in treatment between married and unmarried fathers. “Even were EU law to provide a vehicle for the applicant to bring Strasbourg ‘rights’ to bear, such rights would not avail him,” he said.

Background
This case involved an appellant who was appealing a decision of the high court. The high court refused to grant an annulment of the petitioners marriage to the respondent. According to the petitioner, the respondent had issues such as psychological maturity and under-development of character. They also claimed that they misrepresented fundamental facts. They separated in 1997. She also claimed that he did not possess the capability to manage financial affairs. His professional dealings along with his financial ones were exaggerated which were contained in his CV according to her. The High Court claimed that this evidence did not prove that the respondent had any particular personality traits that would class him as having a personality disorder.

Holding of the Supreme Court
The Supreme Court said the trial judge was entitled to assess certain assertions made by the respondent in respect of exaggerations made in his CV. The evidence came nowhere to establishing that the respondent lacked capacity to contract to a valid marriage. The constitutional protection afforded to marriage entailed that stronger evidence was needed to demonstrate such a lack of capacity. The appeal would be dismissed.

The Constitution imposes a clear obligation on the courts to uphold the marriage contract and it would require far stronger evidence than has been adduced in this case to satisfy me that the respondent lacked the requisite capacity to enter a valid contract of marriage.O'Higgins J. concluded that the respondent's lack of full disclosure about his financial affairs, family and social circumstances, were not grounds upon which one could base a claim for nullity.

It is clear that the trial judge had a very clear and full understanding of the factual situation in this case. He noted that during the marriage the respondent had provided little emotional support to the petitioner and did not appear to have been very good at parenting the child born prior to the break-up of the relationship. He was inconsiderate to the petitioner and sometimes deceitful. The learned trial judge was thus quite prepared to conclude from the evidence that the respondent was very selfish, egotistical, deceitful and dishonest and that he behaved badly.

The relevant legal principles pertaining to a grant of nullity have been comprehensively set out in the judgment of this Court in PF v. GO'M. This was a case where the petitioner and the respondent were married and had one child. The petitioner commenced nullity proceedings on grounds that he had not given full free and informed consent to the refused to grant the nullity sought. The petitioner appealed on the basis that the trial judge erred in law in holding that the circumstances of substance which rendered a party's consent full and informed did not include circumstances concerning the disposition or proclivity of the other party. It was held by this Court, in dismissing the appeal, that if a party to a marriage was not fully informed about the conduct or the character of the other party prior to the marriage, this was not of itself sufficient to render the marriage void. Secondly, while adultery was a ground for judicial separation, it had never been a ground for nullity. Thirdly, while consent could not be considered informed where information relating to a party's inherent disposition and mental stability was withheld, this would not be the case where there was a concealed misconduct or other misrepresentation. Fourthly, there was a necessity for certainty in marriage, which was enshrined in the Constitution. Therefore the introduction of a ground of nullity which would bring uncertainty into a wide variety of marriages was not only undesirable as a matter of public policy, but was contrary to the clear intention of Article 41.1.3 of the Constitution.

In delivering judgment on behalf of the Court, McGuinness J conducted a comprehensive review of the relevant legal principles pertaining to nullity. Having traced the origins of the modern law of nullity, she cited a much quoted passage from the judgment of Kenny J. in''S. v. S.'' which emphasised that traditionally two principles were fundamental in suits for nullity. McGuinness J. considered at length the whole question of misrepresentation or fraud arising from the misconduct of one party prior to the marriage. This issue was fully considered in the case of Moss v. Moss. In that case the President, Sir F. H. Jeune had made it clear in the course of his judgment that fraud and misrepresentation had a very small role to play as a ground for a decree of nullity.

The principal authority relied upon by the petitioner in the present case, namely MO'M (otherwise OC) v. BO'C, was also dealt with by McGuinness J. in the course of her judgment. That was a case where the High Court had heard evidence relating to the inherent nature, character and behaviour of the respondent during the marriage. It was a case where the respondent, unknown to the petitioner, had been attending a psychiatrist for approximately six years before the marriage.She claimed she did not have adequate knowledge of all the relevant circumstances and that had she been aware of those circumstances she would not have married him as she regarded the fact that the husband had attended a psychiatrist as being indicative of mental instability and probably some form of psychiatric illness. In other words, consent to the marriage was not, she alleged, a free, full and informed consent. Gerard Byrne, psychiatrist, gave evidence as to the psychiatric condition of the respondent and the petitioner. His opinion was that the respondent had, at the time of the marriage, a personality disorder of such an extent as to make it impossible for him to consent to and sustain marriage to the petitioner. He had a fundamental difficulty with trust and allowing himself to be trusted and constructed a persona entirely at variance with reality.