- In MacDougall v The Children, the Family Court denied a sperm donor’s application for parental responsibility or contact, citing the likely detrimental impact upon the children involved.
- This case underscores the risks of initiating contact between a donor and a child after the birth, particularly when the donor was found through an informal arrangement without proper vetting.
For some, it is necessary to use egg or sperm donors in order to conceive a child. This might be because the couple are same-sex or the person is single, or due to infertility issues. English law states that children conceived in this way are entitled to receive ‘non-identifying information’ about their biological donor from the age of 16 (ethnicity, occupation etc) and identifying information when they reach the age of 18 (full name and date of birth). It is worth noting that donor privacy can be treated differently outside of the UK, where the donor may be able to remain anonymous. Of course, the identity of the donor may or may not be something the child wishes to pursue.
The general thinking is that a donor is involved in the fertility process as an altruistic act and is not seeking to be a parent in the traditional sense. However, is this always the case? What if a donor becomes curious about their offspring and changes their mind? Do they have rights, and what applications for parental responsibility (PR) and contact can be made under the Children Act 1989? This article will look at the case of MacDougall v The Children (by their Children’s Guardian) and other cases [2022] EWFC 50, [2022] All ER (D) 05 (Jun) in order to provide some useful guidance for practitioners.
What did the case involve?
This case concerned the applicant, James MacDougall (JM), in three linked contested cases. The applicant applied for PR and child arrangements orders for contact with four children with three different mothers conceived using his donor sperm. The mothers did not name JM on the birth certificate and he did not have PR for the children. He therefore had to make an application to the court to be involved in the children’s lives.
JM had a condition known as Fragile X Syndrome, which he deliberately withheld from the parents when making the private sperm donation. In fact, JM fathered 15 children in total (all aged up to four by the time of the application) without disclosing his condition. It transpired that the condition had prevented him from being a sperm donor at a clinic as it is an incurable hereditary condition that can lead to developmental issues and low IQ. JM himself was described as a ‘complex character’ with learning difficulties and being on the autistic spectrum.
What was the background?
JM advertised himself as a sperm donor on social media, specifically for lesbian couples. One such couple, SW and EG, were looking to conceive and found JM’s profile online. The parties entered into a written agreement that outlined that JM would have no rights and no contact in respect of any child born. The agreement apparently did mention that he had Fragile X Syndrome, but the implications were not explained to SW and EG in any detail. The document was apparently written in overly legalistic language and was difficult to read and understand. This was particularly challenging for SW, who had learning difficulties, and she admitted in court that she had not reviewed the whole document. It is not clear to the author who prepared this document and if it was ‘homemade’; JM claimed the agreement was provided to him by a lawyer friend.
Child R was born to SW in October 2018. Notwithstanding the agreement, SW asked if JM would like to meet the baby, which he did. The parties disagreed about how much time R spent with JM after this point, but the messaging evidence suggested that the child stayed overnight at JM’s home at least seven times.
The relationship between SW and EG subsequently broke down and SW moved on to a relationship with JC. They decided to have a baby together in early 2020 and sought to use JM’s sperm once again. JM’s case was that he had agreed on the condition he would have contact with the child, which was disputed by SW and JC. JM had no contact with child P following the birth.
During the first lockdown in mid-2020, JM visited SW and JC and even moved in for a couple of months. However, he was then asked to leave due to his alleged inappropriate behaviour. ln around June 2020, there was a serious altercation between SW and JM, with differing accounts of this incident being presented on each side. It was alleged that JM forced his way into the property and there was a physical confrontation which resulted in bruising to SW’s neck and back (substantiated by photographic evidence) and to JC’s leg and hands. This incident was witnessed by R and other children. The mothers ceased contact between JM and R after this.
EG separately asked JM to be a sperm donor for her, as she had had difficulties conceiving with another donor and longed for a child. EG asked for a written agreement to state that he would have no contact with any child, but JM was evasive and made excuses about signing it. In the end, EG proceeded without the agreement as she was desperate to have a child. Child N was born in January 2021 and JM had no contact. There were therefore three children born following JM’s sperm donation to the separated same-sex couple SW and EG:
- R (3 years) and P (2 years) = SW + JM.
- N (1 year) = EG + JM.
JM also donated sperm to KE, resulting in child B. However, KE and JM had commenced a relationship a few months after B was born. Consequently, B saw JM as his father and this differentiates this case from the other two. JM obtained a child arrangements order to spend time with B, which KE was applying to vary. KE was applying for a second non-molestation order against JM due to his continuing harassment around contact with B. This part of the case was adjourned due to the allegations of unexplained bruising on B and the involvement of the local authority. A s 37 report was ordered to evaluate whether B required further protection as one of the bruises was assessed as being non-accidental.
The court’s determination for children R, P & N
In considering JM’s application for PR and the best interests of the children concerned, the court considered the following criteria derived from FC v MC and another [2021] EWHC 154 (Fam), [2021] All ER (D) 37 (Feb):
i) the commitment shown by JM to the particular child; ii) the attachment between JM and the particular child; and iii) the motivation behind JM’s application.
Interestingly, the guidance is that the agreement at the time of conception is not determinative in relation to PR. The attachment between the applicant and the child is much more likely to carry weight than a conception agreement. However, it could provide useful context when evaluating the above criteria.
It is evident that SW ignored the conception agreement in relation to R for reasons the court assumed were financial (it later emerging she had received around £7,000 from JM, although she denied the amount was this high). In considering whether to confer PR on JM, the following factors from A v B [2012] EWCA Civ 285, [2012] All ER (D) 119 (Mar) were taken into account:
i) JM’s degree of involvement with the relevant child’s early life;
ii) JM’s physical ability to care for the relevant child;
iii) JM’s true desire to care for the child; and
iv) JM’s support for the existing parent/mother.
When pressed at court, JM was unable to set out legitimate reasons for his application in respect of the children. JM had no relationship with R, P or N at the time of the hearing and he had not pursued applications in relation to his other children. It is perhaps also telling that he had an allegedly controlling and abusive relationship with each of the mothers of the children in respect of whom he made an application.
JM did not seem to care about the impact his involvement would have on the families and how disruptive this might be to the children. This cast doubt over JM’s motivation and what he would do if PR was bestowed upon him. The judge questioned whether JM simply wished to control the two mothers and was mindful of the risk of PR being potentially misused—for example, arbitrarily withholding consent to medical treatment or holidays.
The judge had to seriously consider how JM could exercise PR meaningfully to the children’s benefit, given that he did not know them. JM’s lack of empathy and insight, his tendency towards rigid thinking, his inability to exercise self-control over his anger in court, and the deception and irresponsibility in not revealing his hereditary condition, all worked against him. The negative and potentially damaging effect of JM having contact with the children or the mothers, who vehemently opposed it, was also given significant weight.
The guardian for the children firmly opposed PR and contact being granted to JM, and proposed that his name should be published. The guardian felt that JM’s primary motivation was ‘winning’ the applications he was making, rather than any desire for contact with the children themselves. The guardian was also very concerned about how the mothers would be impacted by JM’s presence in their lives and the conflict that would create. The fact that R had considerable developmental issues, coupled with the vulnerability of SW, was an additional concern.
The applications were thus refused in respect of R, P and N. JM had previously had a reasonably positive relationship with R, but it did not outweigh the risk of harm in allowing him to have PR and contact. The case was arguably more straightforward in relation to P and N on the case law, as they had never met JM and he played no role in their life.
It is worth noting that the court felt that even letterbox contact for JM was too much of a risk to the children and refused to allow it. The court took the step of putting in place a three-year barring order to prevent JM making any further applications to the court. This was felt necessary as he had indicated to the guardian that he would carry on making applications until he secured the orders he wanted. This would clearly not be in the children’s best interests and the court were proactive in preventing any further vexatious litigation.
Implications
Due to JM’s lack of contrition and his demeanour in court, there was no faith that he would stop advertising his sperm to would-be parents. The judge therefore took the unusual step of naming JM in the press, which was supported by the guardian and the three mothers. The public interest in protecting children outweighed JM’s Article 8 right to privacy in this instance. It was felt that publishing JM’s name was necessary to provide a warning to those wishing to use his services. A simple Google search will now bring up the history of this matter.
This case also emphasises the risks of initiating contact between a donor and a child after the birth. This can open the door to a relationship that was never intended and the possibility of significant litigation if a conflict arises between the parents regarding the development of that relationship. In the case of B (role of biological father), Re [2007] EWHC 1952 (Fam), the donor’s application for a relationship with the child was supported by the guardian, as his motivation was assessed to be genuine. It is therefore possible for a donor to meet the requisite threshold to establish a relationship with their offspring.
The cost of fertility treatment can be significant, and it might be tempting to take shortcuts. However, this case highlights that due diligence is an essential part of the donor process in order to avoid the wrong candidate (insofar as that is possible) being inadvertently selected. The risks of using private sperm donors that have not been properly screened and vetted by a clinic are an unfortunate reality, and can cost the parents far more than money.
Fiona Lyon, partner at Anthony Gold (www.anthonygold.co.uk).
