There was nothing in Irish law to suggest that a family of two women and a child had ‘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’.” So says Mr Justice Hedigan in a recent High Court ruling. A psychiatrist appointed by the court concluded that the man should not have rights which could interfere with the child’s family life.

Last year, in a Supreme Court judgment, the couple, one of whom is Australian, were denied permission to leave Ireland and visit Australia, with a view to possibly relocating there. This provisional judgment, a 2-1 majority ruling, made no decision on whether the father had access or custody rights to the child, but merely that he had a right to apply for it, and that taking the child away from the jurisdiction would prejudice that right, in effect referring the central issue of custody/access back to the High Court. This is the result. The father’s rights are no more nor less than that of any unmarried father, ie with leave to apply for access or custody, meaning that it is up to the courts to decide the merits of his application, based on the needs of the child.
In Ireland, quality of parenting is taken into account in custody battles, and although there is a strong cultural bias in favour of mothers, a father can win – if he can prove himself to have been a good parent. This seems eminently fair: although many fathers rightly complain about how they are discriminated against in the courts when it comes to their children, it has to be acknowledged that men do not rise to the challenges of being a parent as readily as women do, and they often have to be persuaded, reminded, cajoled, demanded and sometimes forced to play an equal role in the care of a child. It is rarely the reverse. So, I don’t think that there should be an automatic assumption that joint custody is best for children after the break-up of a relationship or marriage – each family has to be evaluated on a case by case basis.
In his unambiguous ruling, Mr Justice Hedigan decided that the welfare of the child was best served by staying with his mother and her lesbian partner. It is likely that this judgment will itself be referred back to the Supreme Court on appeal. However, as a lay person, it is hard to see how such a crystal-clear ruling could be overturned, given that it dealt primarily with the best interests of the child, and the evidence in support of the lesbian couple seems incontrovertible.
This case has direct echoes for me, reminding me of the time I, too, planned to be a father. Unlike this case, where the father had agreed to be a sperm donor only, and to play the role of a “favourite uncle” to the child, about ten years ago I had planned, with an Australian lesbian friend of mine, to co-parent a child together. We were both single at the time, both in our thirties, and both at college. After agreeing in principle, I then asked for a year to complete my studies, and we would then revisit the plans when I was earning properly again. We had talked of living in separate but adjacent flats, and we were full of high hopes, and were very close to each other. Then, during that year, I introduced her to someone, a friend of a friend, and they became lovers. They fast became extremely intimate and close, and of course the universal law of relationships clicked into play, that disregards sexual orientation completely: couples tend to socialise with other couples, and single friends get left behind. I became overworked and over-stressed and suffered a major depression, and we inevitably drifted apart, but not with any bad feeling. I was convinced our decision to start a family still stood, and when the year was up I was fully expecting us to go ahead. However, while in the office one day, a colleague told me with great glee, imparting a bit of juicy gossip, that the two of them were going to Australia, with the prospect of moving there.
That was the precise moment I knew the plans could never proceed, and I was not destined to be a father. Not because of the plans to move abroad (after all there was nothing to stop me moving to Australia if I wanted to), but because there was no hope of my role as a father being respected, if such an important decision could not be discussed with me first. And so, very hurt, for the first and only time in my life, I ended a friendship, and it was as painful as any break-up with a boyfriend. We never spoke again. They are living in Australia now and are rearing a child, who must be about seven now.
In retrospect, I feel glad I learned about the relationship dynamics between the three of us before there was a child to contend with, for if I hadn’t, I could well have been taking them to court in a remarkably similar case to the one presided over by Justice Hedigan. (Although the likelihood would be that I wouldn’t – families have to be based on love, and can’t be legally required to be held together.) My decision to take a year out before proceeding proved wise. I am of course sad that it didn’t happen, and yet I don’t think about it much now. I’m not one for regrets.
Non-sexual friendships can often be as intense as sexual relationships, often as intimate, often as destructive. The relationship between father and mother in the case currently in the headlines is described as “poisonous” and I can well understand it. Although I am sure it has been miserable for all concerned, and it may feel like no one has really won, the fact that this case has turned out the way it has, represents an enlightened step forward for Irish judicial sanity and common sense, and a maturing of the debate about gay relationships and parenting.
Mr Lenihan, over to you.