The Supreme Court handed down judgment in the case McD v PL and another [2009] IESC 81 on 10th December 2009. The appellant sought to appeal the decision of the High Court refusing to appoint him as guardian of child HL or make orders for access.

The appellant had entered into an agreement with the respondents, a lesbian couple, to donate sperm to help PL conceive a child. Having done so, the parties fell out after the birth of HL as they disputed the role that the appellant would play in the life of HL and resorted to litigation. The High Court had found that the respondents and HL formed a de facto family unit, and as such were entitled to the rights under article 8 of the European Convention on Human Rights. As HL’s rights were paramount, the High Court had found that to give the appellant a greater role would be to the detriment of the de facto family unit.

The Supreme Court discussed the implications of Article 8 and stated that the article only applied in circumstances provided for by the European Convention on Human Rights Act number 20 of 2003 and was itself not directly applicable in Irish law. The Supreme Court stated that the High Court had erred in its application of article 8 and would set aside the ruling on that point. Commenting further the Supreme Court stated that the High court had erred in its treatment of an expert report, and the assessment of the rights of the family in Irish Law. The concept of a de facto family was not relevant.

The only relevant issues to be decided were whether the father should be granted access to HL or appointed guardian, in the light of HL’s interests. The Supreme Court found that whilst the appellant should not be appointed as a guardian, access to HL by the appellant would be in HL’s interests and remitted the matter to the High Court.