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MacDougall v SW & Ors (sperm donor : parental responsibility or contact) [2022] EWFC 50


The Applications

JM acted as sperm donor in the conception of the children in three linked cases. In the first two cases (SW and EG) JM had applied for parental responsibility orders (PROs), and child arrangements orders (CAOs) for him to spend time with the children. SW was the mother of two children, R aged 3, and P aged 2. EG was the mother of N, aged 1.

In the third case (KE), the mother applied to vary the existing CAO and for a non-molestation order (NMO), and JM had applied for enforcement of the existing CAO. This case differed in its facts because the child (B) recognised JM as his father, and there was a CAO granting contact. Most importantly, B had recently presented with unexplained bruising. This case was therefore adjourned with variation of the existing CAO, for completion of a s.37 report.

The Facts

JM had acted as sperm donor through private arrangements in a large number of cases and told the court he was the father of 15 children, all aged between nearly 4 and a few months old.

JM suffered from Fragile X syndrome, a genetic and inheritable condition which causes a range of developmental problems including learning difficulties and cognitive impairment.

JM advertised himself on a social media page for lesbian women seeking sperm donors. SW and her partner EG entered into an agreement for him to act as sperm donor, and all signed a written agreement which stated JM would have no rights over the child and no right to contact. The agreement was a closely spaced three-page document in highly legalistic language which was difficult to read. The agreement did record that JM had Fragile X syndrome, but there was no explanation of what this meant. SW had difficulty reading, which the court found to be clear from her oral evidence. SW said she did not read far into the agreement and did not read the part about Fragile X. EG said she read more of the agreement but either did not see or did not appreciate the reference to Fragile X.

When R was born in October 2018, SW did allow JM some contact, albeit the quantum was disputed. Text message evidence showed that R stayed overnight with JM at his parents' house on at least 7 occasions.

SW and EG's relationship broke down. In early 2020, SW and her new partner JC decided that they wanted to have a child. SW asked JM to be the sperm donor. JM says that he agreed but this time on the basis he would have contact. SW denied this, and there was no written agreement in respect of this pregnancy.

JM said that he often visited SW's house and that during the first lockdown he lived there for some of the time between March and June 2020. At a date in June, SW asked JM to leave. SW referred to inappropriate behaviour by JM.

On 25 June 2020, there was a serious incident at SW's house. The children were at home at the time. JM and SW presented differing accounts of this incident. There was photographic evidence of bruising to SW's neck. JM had no contact with R following this date and had never met P. R was now 3 years old. There were significant concerns about her development.

When SW and EG split up, EG formed a new relationship and they decided to have a baby. JM was the sperm donor. There was no written agreement. EG said she asked JM for a written agreement that would confirm he would have no contact with the child but ultimately one was not forthcoming, and EG was desperate to have a baby so went ahead without a written agreement. N was born in January 2021; JM had no contact with N.

There was no written agreement between KE and JM. B was born in July 2018. In September 2018, KE and JM commenced a relationship and JM had contact with B throughout 2019. In 2019 KE applied for an NMO against JM which was made without findings. JM made a CAO application and was granted contact in March 2021. KE alleged that since then, JM had been harassing, controlling, and pestering her. In December 2021, KE made a fresh application for an NMO, and in January 2022 KE suspended contact. JM applied for enforcement. On 24 January 2022, B's case was reopened to Sheffield Social Care as KE informed the social worker that B had unexplained bruises when he returned from contact with JM. Upon medical examination one of the bruises was thought to be non-accidental.

The Law

The court referred itself to the principles set out in section 1 of the Children Act 1989, as well as case law on the various issues arising from the applications. A summary of cases referred to is as follows:

FC v MC [2021] EWHC 154 (Fam): Summary of the law on making PROs. The starting point is as set out in Re H (Minors) (Local Authority: Parental Rights (No 3) [1991] Fam 151 where the Court of Appeal highlighted three particular features the court should consider following an application by a father for a PRO. These were the degree of commitment the father had shown to the child; the degree of attachment between them; and the motivation behind the father's application.

A v B and C [2012] EWCA Civ 285 Consideration of the issues concerning sperm donors and parental responsibility. Every decision is fact sensitive, but factors that may be especially relevant are: participation in the child's very early life and plans for their future, ability to care for the child physically, desire to care for the child, and support for the mother. Whatever agreement or understanding the parties may have had at the time of conception and birth will not be determinative in deciding whether parental responsibility should be granted. Evidence as to the applicant's current commitment and attachment to the child is likely to be of greater interest to the court.

D v E (Termination of Parental Responsibility) [2021] EWFC 37 at [31] on the issue of PROs, and at [26]-[27] on whether to make an order for no contact.

TJ v CV [2007] EWHC 1952 and P and L (Minors) [2011] EWHC 3431. Counsel for JM referred the court to these two decisions concerning children's contact with their father, who had been a sperm donor. In TJ v CV it was held to be in the child's interests to have some kind of relationship with the father. The Guardian in this case supported this, particularly as the court had concluded the father was genuine in motivation.

Re P (Section 91(14) Guidelines) (Residence and Religious Heritage) [1999] 2 FLR 573 The guidelines on making S.91(14) orders at [41] remain a clear statement of the correct approach.

In relation to whether to name JM, the court referred to section 12 of the Administration of Justice Act 1960, and section 97(2) of the Children Act 1989, which impose restrictions on reporting and publications in family cases involving children. Section 97(4) CA 1989 relaxes the prohibition where the welfare of the child requires it.

When the court is asked to permit reporting of such cases the court must strike a balance between Article 8 and 10 of the ECHR. The court referred itself to Sir James Munby P in Re J (A Child) [2013] EWHC 2694 at [22], and Lord Steyn at [17] in Re S, A Child [2004] UKHL 47.

The court also noted the recent case of Griffiths v Tickle [2021] EWCA Civ 1882  where the public interest in naming the parents was sufficiently great as to outweigh the risk of identification of the children and their Article 8 right to privacy.

The Evidence

JM was found to be a complex person, who had been diagnosed as having learning difficulties and being on the autistic spectrum. He presented as having a very fixed view, a tendency towards concrete thinking, and a profound lack of insight. He found it difficult to articulate why he wanted to have contact with the children. He did not appear to have any understanding of the impact on the mothers of his behaviour. He did not have any self-control over his feelings of anger and frustration.

JM's mother gave evidence. The court suspected that JM's mother supported JM in whatever he chose to do and did not challenge him. This was one reason why JM's mother was not considered to be a protective factor for the children. JM's mother was found to be truthful in her account of how often she and JM had contact with R.

SW had learning difficulties and presented as extremely vulnerable. Special measures were put in place for SW's evidence. The court gave itself a Lucas direction as SW was found to be an unreliable witness. SW had suggested JM's contact with R was minimal when this was not true. EG also gave evidence and was found to be a clear witness.

The Guardian's position

The Guardian opposed the PRO or JM having any contact. The Guardian proposed a s.91(14) order and the naming of JM in the judgment. The Guardian's view was that JM's main commitment was to making the applications rather than the children, and the children had no attachment to him. The Guardian also advised that PROs or CAOs would have a very negative effect on the mothers, they would be engulfed in conflict with JM, as had been the case for B for some time.

JM told the Guardian he would continue making applications until he got the outcome he wanted. The Guardian referred to JM's compulsive behaviour, frequently phoning her when she did not immediately respond to him. The Guardian did not consider letterbox contact workable as JM may seek to impose himself on the children's lives.

The Guardian stated that JM should be named, and that there was public benefit in the risks of private sperm donors being more widely known and considered.

Conclusion and Findings

It was accepted JM had regular contact with R from October 2019 to June 2020. SW sought to minimise the amount of time R spent with JM in her evidence, but her lies were motivated by a desire to stop JM gaining any role in R's life and did not suggest she was invariably dishonest. SW's version of the 25 June 2020 incident was preferred. JM forced his way into the home, and this was frightening for the children.

Applying the three criteria in Re H (Minors), the initial agreement was that JM would have no role in R's life, but he did then show some commitment to her. However, SW was now very strongly opposed to him having such a role. There was some attachment between JM and R, and there was no reason to believe that the contact before March 2020 was not positive for her. However, that contact was relatively limited and ended almost two years ago.

The court had considerable reservations over JM's motivations for seeking parental responsibility and contact with R and concern about what he would do if he did have the benefit of these orders. The court's view was that a large part of JM's motivation was to control SW and EG.

It was fundamentally irresponsible for JM to act as a sperm donor whilst knowing that he had Fragile X Syndrome. JM knew that he could not be a sperm donor through a clinic because of his condition. JM took no steps to explain the condition to SW or EG or to ensure they understood. JM took advantage of these young women's vulnerability and their strong desire to have children. This failure to take responsibility for his own condition, and to have any apparent concern for the long-term impact both on the mothers and potentially the children, was a factor in concluding that JM should not be given parental responsibility for the children.

There was considerable concern for the impact on SW of JM having PR or contact. She would find this immensely difficult and upsetting, which would have a consequential impact upon R which would likely be more severe than with many children due to R's development difficulties.

In respect of P, the court concluded the original agreement was for JM not to have any contact, but little weight was given to the original position. JM had never had any contact with P and the court found it would be highly detrimental to P's welfare for there to be a PRO or contact.

In respect of N, EG had been clear throughout that she did not wish for JM to play a role, and this was made clear to JM at the outset. JM did not seek contact or parental responsibility in most of the other cases where he was the father. The court questioned his motivation for seeking it with N. There were fraught emotions between EG and JM, and EG's strong desire was for JM not be involved. Contact would be highly detrimental to N's interests.

The court therefore refused to make a PRO or CAO in respect of R, P, and N.

A S.91(14) order was made for three years. Without this order, JM would reapply at the first opportunity, which would be traumatising for both mothers and highly detrimental to the children's interests.

It was appropriate to name JM. All three mothers and the Guardian supported naming. There was recent evidence to suggest JM was still offering his services as a sperm donor. JM had a belief that he had done nothing wrong. The court had no confidence that JM would not act as sperm donor again, nor in him fully explaining the implications of Fragile X. There was specific benefit in naming him in the hope women will see this judgment. R, P, and N do not bear JM's surname, and it would be sensible for the mothers to explain the position to the children in an age-appropriate way at some future date.

There may be some negative impacts to JM of naming him, but JM had chosen to be a sperm donor despite knowing he would not be permitted to go through a clinic, and made these applications despite strong opposition from the mothers. There was no suggestion JM did not have capacity. Identification was a consequence of the decisions JM had made. Anonymity should not allow parents to behave in an unacceptable manner and then hide behind the cloak of anonymity. The provisions are there to protect the children and not the parents.

Case summary by Kate Pearson, Barrister, St John's Chambers

For full case, please see BAILII