MacDougall v SW & Ors (sperm donor: parental responsibility or contact)  EWFC 50 is concerned with three linked cases where the children have the same biological father (“JM”).
The judgment is concerned with the first two cases (SW and EG), the third case having been adjourned. The court had to consider:
- JM’s applications for PR;
- JM’s applications to spend time with each child;
- The guardian’s application for a s.91.14 order; and
- Whether to publish JM’s name in the judgment.
JM suffers from an inheritable genetic condition, Fragile X syndrome, which can cause a range of developmental problems. As a result, JM is prohibited from being a sperm donor through a licenced clinic. Despite his genetic condition, JM acted as a sperm donor through private arrangements and has fathered 15 children (all aged between nearly 4 and a few months old).
SW and her then partner EG (lesbian couple) entered into a written agreement with JM for him to act as a sperm donor.
JM provided the written agreement. It was a closely spaced 3-page document in highly legalistic language. It does clearly state on page 1 that JM will have no rights over the child and no right to contact with the child. On page 3, it records that JM has Fragile X syndrome but there was no explanation of what the syndrome entailed.
SW has difficulty with reading and said she did not read page 3. EG read the agreement but did not see or did not appreciate the significance of the reference to Fragile X syndrome.
R was born in October 2018. Shortly thereafter, JM met R. By February 2019, SW and EG’s relationship was in difficulty, and they eventually separated. JM says he saw R regularly and would stay overnight with him at his parents’ house.
In early 2020, SW met her new partner JC. They wanted to have another child and asked JM to be the sperm donor. JM agreed but on the basis that he would have contact with the child. SW denies this. There was no written agreement. From March – June 2020, JM lived with SW and JC and consequently had substantial contact with R.
The friendship between SW and JM had broken down and SW asked JM to leave due to inappropriate behaviour towards her and R. Subsequently, there was a serious incident at the end of June 2020 where JM is accused of forcing his way into SW’s home and assaulting her in front of third parties, including children, one of which being R.
JM has not seen R since the end of June 2020 and he has not met the other child, P, who has since been born.
EG, SW’s previous partner when R was born, formed a new relationship and asked JM to be a sperm donor. EG asserts she asked for a written agreement on the same terms and that JM agreed but made excuses about providing a written agreement. EG gave birth to N but JM has had no contact with N.
The third case has been adjourned due to local authority involvement with the child, B. However, it is worth noting that in those proceedings, JM was observed by B’s guardian to have had positive contact with B and there were no concerns about JM’s behaviour.
Parental responsibility and child arrangements
The principles that the court will consider in respect of child arrangements are well known to all private law practitioners. The court’s paramount consideration is the child’s welfare, s.1(1) of the Children Act 1989.
Unless the contrary is shown, there is a presumption that the involvement of a parent in the child’s life will further the child’s welfare, s.1(2A) of the CA 1989.
When considering the child’s welfare, the court shall have regard for the welfare checklist, s.1(3) of the CA 1989.
The law in respect of parental responsibility orders, factors to consider when making a no contact order and guidance in respect of s.91.14 orders are clearly set out in the judgment at paragraphs  – .
Within the judgment, JM is described as a “plainly complex person … diagnosed as having learning difficulties … having a very fixed view … and a profound lack of insight”.
The guardian’s position was that JM’s main commitment appears to be making the applications, rather than to his children, and that his anger and feelings of betrayal towards SW lies at the heart of his applications. Her view was that the children do not have an attachment to JM. Additionally, if JM was granted PR, he would be unable to exercise it meaningfully in the best interests of the children. Further, the making of such orders would have a very negative effect on the mothers. She therefore opposed JM’s applications and proposed the making of a s.91.14 order.
The Judge had considerable reservations over JM’s motivations for seeking PR and a spend time with order (he was only seeking orders in respect of 3 out of the 15 children he had fathered) and what he would do if he had the benefit of such orders. The Judge concluded that a large part of JM’s motivation was to control SW and EG. The Judge was concerned about the effect of such orders on the mothers, especially SW who was considered extremely vulnerable. The court refused to make the orders requested by JM. Letterbox contact was considered and rejected.
Despite there not being a history of repeated applications, a s.91.14 order was granted for 3 years due to JM’s inability to control his emotions, his conduct (by way of frequent telephone calls / messages to SW and EG) and lack of insight into this behaviour.
Should JM be named?
Most readers will be well aware of the long-established law in respect of reporting restrictions in family cases involving children and the recent discussions in relation to transparency in the family courts and reporting cases.
S.97(2) of the CA 1989 provides “no person shall publish to the public at large or any section of the public any material which is intended, or likely to identify (a) any child as being involved in any proceedings before the High Court or the family court in which any power under this Act may be exercised by the court with respect to that or any other child; or (b) an address or school as being that of a child involved in such proceedings”.
S.97(4) of the CA 1989 relaxes s.97(2) where the welfare of the child requires it. The court must also balance Article 8 (Right to respect for private and family life) and Article 10 (Freedom of expression).
All 3 mothers and the guardian supported naming JM in in the judgment. JM opposed being named. Although there may be some risk that the children could be identified, R, P and N did not bear JM’s surname and, in any event, they were too young (aged 3, 2 and 1) to be conscious of any internet comment.
JM claimed that he has ceased acting as a sperm donor. However, there was evidence he was still offering his services online in February 2022. In light of JM’s dishonesty, his belief he had done nothing wrong and offering to be a sperm donor for the existing mothers to ensure a sibling connection, the Judge had no confidence he would not act a sperm donor in the future and, if he did, that he would not explain the significance of his syndrome.
There was therefore a very specific benefit in naming him in the judgment in the hope that women who might be researching JM as a possible sperm donor might read this judgment. It will also have a wider benefit of permitting the risks of private sperm donation to be more publicly known. The public interest in naming JM outweighed the risk of identification of the children and their right to privacy.
JM argued that naming him in the judgment would negatively impact him. The court concluded that JM chose to be a sperm doner, chose to pursue these applications despite strong opposition from the mothers, there was no suggestion he did not have capacity and he will be identified as a consequence of the decisions he has made.
The Judge went further: “There is a wider point about transparency in this regard. The usual approach of anonymity in the Family Courts should not be used as a way for parents to behave in an unacceptable manner and then hide behind the cloak of anonymity. The provisions and practice in respect of anonymity in family law are there to protect the children and not the parents”.
Although this case is factually unusual, it raises important points regarding what the court will generally consider when naming parents in judgments. It is expected that this issue will become more prominent as the discussion in respect of transparency in the family courts continues. Further reading on naming parents in family law proceedings can be found in the case of Griffiths v Tickle & Ors  EWCA Civ 1882.
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