JUDGMENT of Mr. Justice Geoghegan delivered the 10th day of December 2009
On the face of it this is a novel case as far as this court is concerned. It is an appeal from a refusal by the High Court (Hedigan J.) to appoint a sperm donor/father of an infant to be a guardian of that infant and further refusing any order relating to access to the said infant by the natural father. The first-named respondent is the mother of the child and is bringing up the child in a lesbian partnership with the second-named respondent. Both have availed of a civil union ceremony in England.
In terms of the legal principles applicable, I am of opinion that there is really no novelty involved unless the learned trial judge is correct in his view that the Human Rights Act, 2003 has a bearing on this litigation. The Attorney General, in submissions put forward in his capacity as a notice party, has persuasively argued against the relevance of that Act to this case. That view is concurred in by Fennelly J. in his judgment which I have had the advantage of reading. I agree with the views expressed in that judgment relating to the points allegedly or arguably arising under the Convention of Human Rights and I do not propose to repeat or expand on them. My only comment would be that I find nothing wrong with the rather useful expression “de facto family” provided it is not regarded as a legal term or given a legal connotation. But as the Latin makes clear it connotes merely a factual situation and not a legal concept. I am in full agreement with the views of Denham J. in paragraphs 63 and 64 of her judgment.
I think it important to reproduce those two passages in this judgment by way of quotation as the expression “de facto family” is on the one hand a useful shorthand but on the other hand could give rise to misunderstanding having regard to particular applications of it by the European Court of Human Rights. The two paragraphs in question read as follows:
“63. There is no institution in Ireland of a de facto family. Reference has been made in cases previously, as set out earlier in this judgment, to a de facto family, but it is a shorthand method of referring to the circumstances of a settled relationship in which a child lives. In cases where the issue of guardianship, custody and access arise the kernel issue is the welfare of a child. In assessing the welfare of a child all the circumstances require to be analysed. These include the biological parents, the age of the child, the relationships which the child has formed, the situation in which he or she lives. If a couple have lived together in a settled relationship for years and have a child in that relationship then these are critical factors. A child will know and have a relationship with the people with whom he lives – it will be an important aspect of his life, and therefore weight heavily in determining his welfare. On the other hand, if a couple have a child and do not live together, there may be little or no relationship between the child and the father and thus the relationship with the father will not weigh so heavily. These will be factors in the balance to be considered by the court in determining the welfare of the child. It is a question of considering the welfare of the child in all the circumstances of the case. If the circumstances include a long standing relationship with a parent that is an important factor for the court.
64. The same analysis will apply to circumstances where same sex couples live together. Circumstances, in which a child is living a settled life, and has a relationship with those with whom he lives, are critical factors.”
I intend now to concentrate on how applications of the kind made in this case ought to be dealt with as a matter of Irish law and without regard to the Convention. Applying what I believe to be the correct domestic law principles, I would uphold the High Court’s refusal to appoint the appellant to be a guardian (without prejudice of course to the appellant’s right to make a new application for guardianship in the context of changed circumstances) but I would reverse the order refusing all access. The form of access which I would have in mind to be allowed however, would be far more limited than that suggested at different times by or on behalf of the appellant. I would return the case to the High Court for regulation of the access. That would include making every effort through a mediator or otherwise to reach agreement between the parties as to the precise arrangements provided that they did not infringe the all embracing concept that the first and paramount interest must be the welfare of the child. Otherwise, and subject to the constitutional right of appeal, I would envisage the High Court as being a tribunal of last resort. My thinking on this derives from my belief that the arrangement/agreement (it is immaterial whether it had any legally binding effect or not) characterising the appellant’s relationship to the child as that of a “favourite uncle” was a sensible one in all the circumstances and in the best interests of the child. What primarily went wrong was that the appellant breached the agreement. Although there were some inconsistencies in his answering, my overall impression from reading the transcript of the evidence of the appellant particularly under cross-examination from Ms. Mary O’Toole, S.C. was that he did not really deny his breaking of the agreement to any great extent. As a witness, he seemed to have come across as thoughtful and quite careful in his answers. I am puzzled by the finding of the learned High Court judge that the appellant deceived the respondents from the start as to his motivation and intent. This finding was not a primary finding of fact and, therefore, unreviewable by this court if sustainable. Rather it seems to me to have been an inference drawn from the evidence. Making all allowances for the fact that a trial judge has the advantage of watching the body language of witnesses and accepting that even though it is open to me to draw a different inference, I should be somewhat slow to do so, I have no hesitation in rejecting that inference. Indeed, even if it were a primary finding of fact, I would be of the view that it was unsupported by the evidence. In this judgment, therefore, I am approaching the case on the basis that the appellant acted bona fide at all stages relevant to the entry into the agreement or arrangement.
Three matters led to the appellant purporting to assert paternal rather than avuncular rights to a degree that went far beyond the arrangements agreed upon and indeed contrary to those arrangements.
The first was the natural and, in a sense, perfectly human excitement on the part of the appellant at the birth of what he regarded as and what was in fact his own child. The second was a consequent but rather colder reflection on what his legal rights might be as a father independently of any arrangement made. The third and perhaps the catalyst for the real trouble was the stated intention on the part of the respondents not only to move to Australia with the child but to remain there for up to a year. It is only fair to state at this stage that one of the respondents is Australian. This expressed intention must be seen in the context that the original plan had been to go to Australia for a much shorter period such as two months to which the appellant would not have objected.
The appellant instituted these proceedings by special summons and sought an interlocutory injunction restraining the respondents from travelling with the child to Australia. The matter came before Abbott J. first by way of ex parte application for an interim injunction which the judge granted and subsequently by way of motion for the interlocutory injunction. After a hearing, Abbott J. made an order permitting the taking of the child out of the jurisdiction for the purpose of a vacation in Australia from the 25th March, 2007 to the 9th May 2007 but making a further order prohibiting the child from being removed from this jurisdiction without leave of the court pending the determination of the proceedings. He also ordered that a report be obtained under section 47 of the Family Law Act, 1995. This report was to be prepared by the distinguished child psychiatrist, Dr. Gerard Byrne. The respondents appealed the matter to the Supreme Court which by a majority of two judges Denham J. and Finnegan J., Fennelly J. dissenting, affirmed the orders of the High Court. This litigation and particularly the interlocutory aspect of it, though probably inevitable, did not help good relations between the parties. Hedigan J., in his judgment, recites that on the following 30th July, the matter came before the High Court (Sheehan J.) by way of an application for interim access pending the full hearing. The court on that occasion ordered such interim access to take place on Saturday, 25th August and on Saturday, 15th September for periods of one and a half hours each in the presence of either or both of the respondents in their home or some other venue convenient to their home. The learned High Court judge observed that “this access took place without incident on the said dates”.
At this point, it is important to consider what are the legal rights (if any) of a natural father of a child born out of wedlock. This has been referred to in some detail in the judgment of Fennelly J. He points out that this court has considered the rights or interests of a natural father in two leading cases i.e. J.K. v. V.W.  2 I.R. 437 and W. O’R. v. E.H. (Guardianship)  2 I.R. 248. Undoubtedly, these two cases when read together explained the principles to be applied on an application by a natural father for guardianship and/or custody and/or access where his child has been born out of wedlock.
Of the two, the W.O’R case would seem to be closer on its facts to this particular case. That is because the facts were such in the J.K. case that if an order for guardianship was made in favour of the applicant, an order for sole custody in his favour would also have had to be made. That is not so in the W.O’R case. Nevertheless in reviewing the case law, I think it useful to make some brief observations on the judgment of Finlay C.J. in J.K. which was the judgment of the majority of this court. As I read that judgment, what was of primary concern to Finlay C.J. in disapproving of the judgment of the High Court (Barron J.) was the somewhat negative way in which, on his interpretation, at least, the learned High Court judge dealt with the issue of the welfare of the child. Barron J. had defined the correct test as being
1. whether the natural father is a fit person to be appointed guardian and, if so,
2. whether there are circumstances involving the welfare of the child which require that, notwithstanding he is a fit person, he should not be so appointed.
The judge then in a later part of the case stated expanded on the test when he said the following:
“In my opinion having regard to the purposes of the Status of Children Act, 1987, the rights of the father should not be denied by considerations of the welfare of the child alone, but only where – and they do not exist in the present case – there are good reasons for so doing.”
The key sentence in the judgment of the former Chief Justice is the following:
“A right to guardianship defeasible by circumstances or reasons ‘involving the welfare of the child’ could not possibly be equated with regarding the welfare of the child as the first and paramount consideration in the exercise by the court of its discretion as to whether or not to appoint the father guardian. The construction apparently placed by the learned trial judge in the case stated upon section 6(A) to a large extent would appear to spring from the submission made on behalf of the applicant on this appeal that he has got a constitutional right, or a natural right identified by the Constitution, to the guardianship of the child, and that the Act of 1987 be inserting s. 6(A) into the Act of 1964 is thereby declaring or acknowledging that right”.
In my view, the judgment of Finlay C.J. must be read in that light. In the dissenting judgment of McCarthy J. a somewhat different interpretation was placed on the principles laid down by Barron J. McCarthy J., although taking issue with the later rider already referred to in the case stated thought that the second of the two tests laid down by Barron J. did not depart from the first and paramount consideration but rather expressed it in a different way. It is clear, in my view, that Finlay C.J. and the other judges of the Supreme Court including McCarthy J. and, of course, Barron J. in the High Court all accepted that the surrounding factual circumstances were crucial. Finlay C.J. put it in a rather polarised way. He said the following at p. 447 of the report:
“The extent and character of the rights which accrue arising from the relationship of a father to a child to whose mother he is not married must vary very greatly indeed, depending on the circumstances of each individual case.
The range of variation would, I am satisfied, extend from the situation of the father of a child conceived as a result of a casual intercourse, where the rights might well be so minimal as practically to be non-existent, to the situation of a child born as the result of a stable and established relationship and nurtured at the commencement of his life by his father and mother in a situation bearing nearly all of the characteristics of a constitutionally protected family, when the rights would be very extensive indeed.”
I interpret that passage as essentially meaning that the degree (if any) to which rights might be conferred on the father pursuant to application of the Guardianship of Infants Act, 1964 as amended by the Status of Children Act, 1987 will depend on the circumstances of the particular case and must always, of course, be subject also to the principle that the welfare of the child should be the first and paramount consideration. It would be a misinterpretation of the passage to apply a literal construction to the examples given by the former Chief Justice, as the consequence of doing that could not possibly have been intended by him. For instance, all fathers “of a child conceived as a result of casual intercourse” could not be treated in the same way. At one end of the spectrum is the violent rapist but at the other end is the father of a child unintentionally conceived as a result of casual intercourse where nevertheless the father takes his responsibility seriously and is anxious to retain a relationship with the child which would clearly be to their mutual benefit. The latter is not a farfetched example. On the contrary, it is a situation not infrequently encountered. On the other hand if (very often for perfectly good reasons) marriage is not the right destiny for the couple, the child will normally be brought up by the mother and on any application by the father a court would have to take that into account.
I merely mention this with a view to indicating the range of situations that may arise. Even within the narrow confines of a sperm donor situation, as in this particular case, there may be wholly different sets of circumstances. There may be the anonymous donor who afterwards purports to claim such rights. There may be the known donor, as in this case, but with quite different types of side agreements (whether binding or not). In either of those situations, the donee may be married or unmarried and may be living in a heterosexual or homosexual relationship or none.
In all these cases, the judge dealing with the application, must stand back and consider what is the just and common sense solution, always bearing in mind that the child’s welfare is the first and paramount consideration. In this latter connection, the principle stated in the judgment of Walsh J. in G. v. An Bord Uchtála  I.R. 32 at p. 76 is relevant.
“The word ‘paramount’ by itself is not by any means an indication of exclusivity; no doubt if the Oireachtas had intended the welfare of the child to be the sole consideration it would have said so. The use of the word ‘paramount’ certainly indicates that the welfare of the child is to be the superior or the most important consideration, in so far as it can be, having regard to the law or the provisions of the Constitution applicable to any given case.”
As was pointed out by Barron J. in the J.K. case Finlay C.J. referred to this passage in K.C. v. An Bord Uchtála  I.L.R.M. 302 at 318. The same principle of interpretation was referred to by Hamilton C.J. in the W.O’R. case.
Returning to the J.K. case, Finlay C.J. adopted a somewhat enigmatic phrase which was later referred to by Hamilton C.J. in the W.O’R. case in a passage cited by Fennelly J. in his judgment. The phrase in question is “rights of interest or concern arising from the blood link between the father and the child”. I think it is important to note the precise context in which Finlay C.J. used that phrase at page 447 of the report in the J.K. case. It was used immediately after his reference to “the construction apparently placed by the learned trial judge in the case stated upon s. 6(A)” which in the former Chief Justice’s view to a large extent appeared to spring from a submission made on behalf of the applicant in that case “that he had got a constitutional right, or a natural right identified by the Constitution, to the guardianship of the child and that the Act of 1987 by inserting s. 6(A) into the Act of 1964 is thereby declaring or acknowledging that right.” What Finlay C.J. is then at pains to point out is that the father has no constitutional right or no natural right recognised by the Constitution (my emphasis) and that even the statute only gives him a right to apply. When Finlay C.J. then refers to “rights of interest or concern arising from the blood link”, I interpret that as meaning that he is referring to limited natural rights of a kind which do not have constitutional recognition as such. On the other hand, it is clear from the passage cited by Fennelly J. from the judgment of Hamilton C.J. in the W.O’R case that Hamilton C.J. did consider that “the rights of interest or concern” in the context of the guardianship application arose on the making of the application. He went on to say however that the basic issue for the trial judge is the welfare of the children.
I do not think anything really turns on this slight nuance of difference if it exists because, on any interpretation of both judgments, the court would have to consider the blood link in the context of its affording a beneficial reason from the child’s point of view as to whether there be contact to some degree with the child.
In the light of the legal principles, it is necessary, as I have suggested, to look first at the purely factual situation. Needless to say, that has to be done without any element of moralising. At the time the original arrangements were negotiated what was intended by the respondents and what was perfectly understood to be intended by the appellant was that there be a child of the quasi marriage (as the respondents would see it) and that although that child was to emerge as a consequence of pregnancy by the first-named respondent, the two respondents were intended to be the “parents”. I have deliberately used the definite article because, as I see it, it was never intended either that this child would have three parents or that it would only have a single parent. It was intended that the child be brought up by two parents though both of them female. Prima facie it would appear to me to be clearly disruptive of the ordinary family life of the child and, therefore, against the child’s interest that there be in effect an intruding “third” parent. It is well known, however, from adoption situations in particular, that a child not brought up by and out of contact with one or more of his or her natural parents will frequently have a real interest at some stage in making such contact. Considering the child’s best interest therefore, the blood link is always a factor to be taken into account but any conclusions that are drawn, having taken it into account, may vary enormously depending on the circumstances.
In this particular case there was an agreement. Irrespective of whether any part of that agreement is legally enforceable or not or even legally enforceable to a limited extent (questions which I do not find it necessary to decide) the terms of that agreement or arrangement are, in my view, an important relevant factor to be taken into account by a judge hearing an application of this kind. If a lesbian partnership is going to avail of the services of a sperm donor, all going to plan, a child will emerge. Any court which may have to consider in the future issues of contact between the child and the sperm donor will be statutorily bound to adopt as its first and paramount consideration the best interests of that child. Any future disharmony could be against the best interests of the child. An advance agreed arrangement, therefore, is something prima facie beneficial.
The agreement in its signed form has been helpfully set out in full by Fennelly J. in his judgment. The first clause of importance to which I want to refer is at the beginning of the agreement and it reads as follows:
“This arrangement was agreed upon in preference to an anonymous sperm donation (as it would be in the interest of a child to have knowledge of their biological father). The child will know that John is his/her biological father. The child would be encouraged to call him John.”
That clause and indeed virtually the entire agreement was drafted by a previously intended donor whose sperm donation was not successful. It was then adapted with minor amendments for the appellant. It is significant that the appellant did not draft it but he had been shown it and agreed it. It corresponded with the general tenor of the prior discussion. Whilst it was obviously partly to the benefit of the appellant, it was equally seen by all three parties as to the benefit of the child and so it was in my view. I will return to the difficult question as to whether this or any other clauses in the agreement affect legitimate rights of access or create any clog on emigration.
The next clause granted discretion as to whether the appellant would be named on the birth certificate or not and left it to the respondents to decide. In fact they decided against it. The following clause is of the utmost importance. It is headed “parental role” and it reads as follows:
“John agrees that the child’s parents are (P) and (B). John would like to have contact with the child but will be under no obligation to do so. He sees his role as being like a ‘favourite uncle’. He will not have any responsibility for the child’s upbringing and will not seek to influence the child’s upbringing.”
As drafted, that clause would seem to suggest that none of the parties wanted to create obligations on the appellant in relation to contact with the child and that it would be accepted that he would not be assuming any normal parental responsibilities for the child’s upbringing or seek a role in influencing the child’s upbringing. The most important sentence in this clause in this is the following: “He sees his role as being like a ‘favourite uncle’.” In my view, that is a clever expression. It was not invented by either the appellant or the respondents. It would seem to me that if there is going to be any form of contact relationship at the early stages at least between a sperm donor natural father and the resulting child being reared by a stable lesbian partnership, that is the only viable role for the donor. Any connection closer than that, at least in the absence of complete agreement, would be bound to be wholly disruptive and against the child’s interests. There is no doubt, however, that once the child in this case was born, the appellant ignored these provisions and purported to assume a much stronger role. I will return to deal with that in more detail in due course.
The next clause in this agreement/arrangement is headed “Contact arrangements” and it reads as follows:
“John will be welcome to visit (P), (B) and their child at mutually convenient times. This will be at the discretion of (P) and (B). John wants to make sure that the child will establish a solid relationship with (P) and (B), as parents and will not want to interfere with this in any way.”
Obviously, the appointment of the appellant as a guardian with or without joint custody would not help to ensure that “the child will establish a solid relationship” with the respondents. Nevertheless, the court would have to make this order if, bearing in mind the first and paramount interest is the welfare of the child, the court considered that such appointment was appropriate. Any court however should, first of all, pay due respect to the agreement and if the terms are beneficial to the child, when viewed in the round, an appointment as guardian would not be warranted. As I have already indicated, I believe that to be the position in this case.
It was then agreed that the respondents were to be “fully responsible for the child’s upbringing” and that the appellant “will have no financial obligations to the child”. That clause is simply cementing the exclusive parentage of the respondents.
The next and second last clause of the agreement however is significant. It is headed “Child’s contact with John’s extended family” and it then reads:
“The child’s extended family will be the extended families of (P) and (B). Contact with John’s extended family will be at the discretion of (P) and (B).”
If I am right in my view that the other terms of the agreement are in the best interests of the child then the natural consequence would be that the extended family would, in the main, be the respective families of the respondents. In my view, there was implied into that clause an understanding that there could be some contact from time to time with the appellant’s family as indeed would happen with any “uncle”.
The last clause in the agreement reads as follows:
“In the event that (P) and (B) should pass away, John’s contact with the child should continue uninterrupted, as per his history of involvement. Also, John’s opinion should be considered in terms of deciding the best guardianship arrangements for the child.”
For that last sentence to come into operation the appellant would have to be appointed a guardian. The situation has not arisen at this juncture and may never arise. If it did, it would be a wholly new situation and a court would have to consider the matter afresh. The appellant might well have a strong case in that situation for being appointed a guardian but without knowing the circumstances which would pertain then, it would be pointless to express any definitive view.
It is unfortunate that the terms of that agreement were not adhered to. Dr. Byrne, in his section 47 report and in his evidence before the court, advised against guardianship and advised against access until the child was at least six years of age but his main reason for taking that view was the dissension that has broken out as between the appellant and the respondents. The learned trial judge accepted this advice on the basis on which it was given and, as I have already mentioned, added the further input of his own that there had been an intention on the part of the appellant to mislead the respondents from the very beginning. For the reasons indicated, I have already rejected the latter finding. I am not, however, completely satisfied either with the basis put forward by Dr. Byrne for the rulings which he recommended and which were adopted by the learned judge. His approach inherently contains an assumption which in my view is highly questionable. That is the assumption that the fractious relations between the appellant and the respondents would continue into the future after the decision of this court. The learned trial judge should have made an assessment of the probabilities in this regard. At any rate the judge was not correct in his view that apart from exceptional circumstances, the court should not depart from an opinion expressed in a section 47 report. The evidence suggests that there was originally complete goodwill and bona fide negotiations between the parties. I am not convinced that the good relations cannot be restored but I will return to that point in due course. A different view was expressed by Dr. Antoinette Dalton the psychiatrist called on behalf of the appellant. The learned High Court judge was perfectly entitled to prefer the view of Dr. Byrne but unfortunately, he erroneously held that unless there were special reasons the court should adopt the advice of an expert appointed by the court. I cannot accept that view.
Returning to the facts, the goodwill understandably broke down because in a number of respects, the appellant seriously breached the agreement. There were some disagreements as to the factual history but the following facts clearly emerge as either agreed facts or facts found by the learned High Court judge. From and after the agreement there was what the judge describes as “a relationship of friendship which remains somewhat at arms length”. They met about once per month. During this period, the respondents entered into a civil union ceremony in London and there was a certain amount of vacillation as to whether the appellant would be invited or not. None of that seems to me to be particularly relevant to the issues with which this court has to deal. An unfortunate incident however occurred during this period. There was an occasion when the respondents had dinner with the appellant and a female friend of his from the U.S.A. That friend made the unwise comment that the new baby was so lucky to have “three such excellent parents”. Apparently, this greatly upset the first-named respondent as she considered that the appellant was beginning to assume a role of parent rather than that of uncle. He subsequently apologised for the incident. Real problems began to arise at the time of the birth. Fundamentally what happened was that the appellant did not act like an uncle but acted like a parent. He made far too early a visit to the baby in hospital and he organised an intended visit involving his parents, his sister and a friend of theirs from the U.S.A. The first-named respondent refused to allow the visit take place and this led to friction. The learned trial judge seems clearly to have accepted that underlying concerns of the first-named respondent was a fear that the appellant was more and more attempting to act like a parent. There were other incidents also which it is not necessary to particularise. In summary, at the time of the birth, the appellant was altogether too intrusive.
Nevertheless, it would seem to me that there are balancing factors which must be taken into account. It is one thing to enter into an agreement in the cold light of day to be a sperm donor and another suddenly to realise that a child of your own has been born. Given the high intelligence of the appellant which seems to be conceded by the learned High Court judge and the general calm and serious way he gave evidence particularly under cross-examination, I do not consider it would be at all right to assume that this intrusive behaviour caused by over excitement and over exuberance at the time of the birth which unfortunately resulted in friction, need necessarily lead to any disobedience of or lack of respect for whatever final order may be made in these proceedings whether by this court or by the High Court, if the case is returned there.
A meeting took place on the 8th October, 2006 some months after the birth in Farmleigh. The trial judge’s finding is that “the meeting was polite”. The baby was present. At the end of the meeting, the appellant quite reasonably suggested that he would like to see the baby again and he further suggested that future meetings with the baby would take place once a month on the first weekend. That suggestion can well be characterised as avuncular rather than parental. Unfortunately, though in my view without fault, the appellant in making this suggestion used the word “access”. Curiously, the judge does not make any express finding based on the evidence as to the reaction to the word. Rather he says in the judgment that “the use of this word according to the respondents’ counsel in cross-examination ‘froze their blood’.” While I do not find any fault in the use of the word despite its unfortunate results for the appellant, the immediate reaction of the respondents was understandable. They suspected that the appellant had taken legal advice and one could hardly fault that conjecture. Even though the suggestion of a monthly contact was not on the face of it all that unreasonable, the respondents in their indignation did not agree to the proposal. Again, it seems doubtful to me that this unfortunate incident should necessarily be of any relevance to a consideration of the post-judgment relationship between the parties.
In actual fact a further meeting of the appellant and the respondents took place in Clontarf Castle Hotel on the 14th November of the same year. That meeting was not a happy one either particularly as the appellant apparently and mysteriously demanded a paternity test. Again, there was probably a feeling that this resulted from legal advice. He was in fact told by the respondents that there was no need. The appellant, at this meeting, however seems to have become more aggressive. The learned High Court judge has found that he stated “I am a father. I have rights”. This strengthened the view of the respondents that he had changed from the agreed role of uncle to that of father. It is only fair to say that in his evidence the appellant does not really deny this. He did feel after the birth that he had some parental rights.
What brought matters completely to a head was the talk of moving to Australia. Although there was some uncertainty as to the evidence about this, the finding of the learned High Court judge seems to be that the appellant was told by the second-named respondent that the respondents would be going to Australia from early January until March, 2007. In the event due to first-named respondent’s illness, departure was postponed until March. The information was given to the appellant at a meeting in the licensed premises in Clontarf “The Yacht” on the 22nd November, 2006. That meeting was with the second-named respondent only. At the meeting, she suggested that the best course of action would be if the appellant “backed off and gave them all some space”. There was apparently no further communication until a telephone call from the second-named respondent on the 20th March, 2007 to arrange to meet the appellant before they departed for Australia on the 24th March. At that stage, they had decided to go to Australia for one year with the second-named respondent taking up a temporary post. There is some suggestion that the appellant may have been aware of an intermediate plan to go to Australia for eight months by virtue of some email which was sent in January, 2007 to a neighbour who might look after their dog. I do not think that anything turns on this point. What is clear is that once there was the intimation of intended departure to Australia for a year, the appellant had recourse to the courts.
Even on the basis of the limited relationship which it was intended by the agreement, the appellant should have with his child and particularly having regard to the necessity, as he would see it, to build up a relationship, a departure for Australia particularly for such a lengthy period was quite reasonably seen as a major problem from the appellant’s point of view. That is one side of the equation. On the other hand, in the ordinary way a couple living together and bringing up a child as their own child effectively could not be prevented from making reasonable travel and even in some circumstances emigrating, if it was reasonable in all the circumstances. There are many ways in which an “uncle” may keep up contact with a “nephew” or “niece” living abroad. Traditionally, there would be correspondence, the sending of presents at birthdays and Christmas etc. and when the child would be a bit older, telephone conversations. Nowadays not only can there be text messages and emails but, as was explained to the trial judge rather, to his surprise, there can be skipe leading to visual communications. While expense might prove prohibitive there would be nothing, as such, to prevent the appellant visiting Australia from time to time. This kind of discussion however may be wholly academic. First of all, I do not know what the present intentions are. Secondly, there is nothing in the evidence to suggest any intention permanently to emigrate. On the contrary, the arrangements relating to the dog would seem to clearly indicate otherwise. It would be inappropriate to discuss the topic any further. If it has to be dealt with by a court, the High Court is the proper forum.
In summary, as I see it, the learned High Court judge was correct to refuse guardianship. I have already given my reasons for that view. Access is quite another matter. In my view the case should be returned to the High Court as I indicated for issues of access to be considered, if necessary. I emphasize “if necessary” because I believe that the primary role of the High Court judge should be to facilitate agreement between the parties on this matter. I have the firm impression that all of these parties are reasonable people in the ordinary way and I would very much hope that there can be a restoration of good relations. I take the view that the learned High Court judge erred in following the advice of Dr. Byrne without considering properly whether the bad relations between the parties would necessarily continue after a final decision by the court. He should not have assumed such continuance. In N. v. Health Service Executive  4 I.R. 374, this court (as is summarised in paragraph 8 of the head note) disapproved of the trial judge attempting to assess the probabilities as to whether there would be co-operation between foster parents who had custody of a child originally intended for adoption or not in a phased transfer of custody back to the natural parents based to the uncooperative attitude between them. The court held that the issue of what was to happen if the court’s preferred solution of transferring the custody was thwarted afterwards was not something which that should concern the court in making its decision. The court further held that on the evidence such assessment could not have been made. In the event the court was informed that there was good cooperation. To my mind, the situation in this case is not all that dissimilar. There is no reason to believe that either the appellant or the respondents will not respect and indeed cooperate with whatever final order in relation to access may be made by the High Court. If the access issue had no extraterritorial aspect, the order of Sheehan J. might well prove a good precedent. It still is, of course, but I recognise that there is the added problem of Australia. With goodwill and with encouragement and assistance of the High Court, if this case is returned as I think it should be, a reasonable solution to that problem, if it exists, may be achieved.
Accordingly, I would dismiss the appeal in so far as it relates to guardianship but I would allow the appeal in so far as it relates to access, such access to be determined by or under the supervision of the High Court.