A man whose long-term same-sex relationship broke down has obtained a High Court order granting him interim access to a child born through surrogacy.
His former partner is the genetic father of the child, now aged under 10, who was born through surrogacy during their relationship.
The applicant has no biological connection to the child, but said he was the “stay-at-home dad” and was heavily involved in the child’s care and rearing, Judge Oisín Quinn said. The child has disabilities, which required assessments and periods of hospitalisation.
The child’s father has a successful career and substantially more resources than the applicant, the judge said.
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After the relationship broke down, the applicant moved out of the respondent’s home, but had regular access to the child for some months.
That apparently “cordial” but perhaps “fragile” access arrangement took “a turn for the worst” after a text and phone exchange between the men last November.
There was some dispute over what was said. The applicant had said he was extremely hurt and upset, having learned the respondent was in a new relationship, and the respondent was genuinely upset and concerned after the call.
There was a disputed reference to images or videos, private material, and the respondent got a court order in relation to that private material, the judge said. There are separate proceedings about that matter, involving “significant” dispute.
The respondent decided at that point the applicant should have no further access to the child, the judge said.
In evidence the applicant had spoken of how much he loved the child and was heartbroken and distressed over not seeing the child. He also believed the child was missing him as they had spent so much time together.
The respondent’s position was the applicant was “not suitable” to be around the child, for reasons including an alleged threat by the applicant to destroy the respondent by release of the private material.
The applicant had initiated access proceedings in December.
Shortly before a hearing earlier this month for interim access, the parties agreed the court could direct a report to address the child’s welfare and ascertain the child’s views.
Counsel for the respondent argued the court could not grant interim access until such a professional report had been obtained.
The judge granted an interim order for a phased return of access.
In a recently published judgment, he set out his reasons for rejecting the argument that, under section 11B of the Guardianship of Infants Act 1964, he could not do so without having a report on the child’s views.
The 1964 Act, the judge said, was amended in “an important way” by the Children and Family Relations Act 2015 to introduce a specific entitlement for a person who has “formerly resided” with a child to apply for access.
The “paramount consideration” for the court was the best interests of the child, the judge said.
In this case, the applicant had not seen the child for more than three months, which was a significant amount of time in the context of their previous contact and the age of the child. The court also had evidence, via both parties, of their beliefs about the views of the child.
Although not a natural parent, the applicant has performed a parent’s duties for a substantial period of the child’s life, he said.
The respondent had also, quite properly and appropriately, left the child with the applicant for periods due to health and work reasons and had allowed the applicant access for a time following the relationship breakdown, the judge said.
