Private Law
May 2022

Summary:

Hearing before Mrs Justice Lieven DBE, which considered three interlinked cases concerning a sperm donor and whether the donor should have contact or parental responsibility for a child that he has already had contact with or their related siblings. The judgement also considered whether the court should publish the sperm donor’s name within the judgement.

The sperm donor, Mr MacDougall, was represented by Lorna Robertson of St Mary’s Chambers.

Background:

The hearings concerned a sperm donor, Mr MacDougall, and three women who had given birth to children using his sperm donation. The court had previously linked the three cases together as they concerned the same sperm donor.

Mr MacDougall suffered from fragile X syndrome, which is a genetic condition that causes developmental problems; he had learning difficulties and cognitive impairment. Over the previous four years, Mr MacDougall had fathered 15 children through sperm donation; these proceedings involved four of those children.

The mothers of the children were all young women who are, or had been, in lesbian relationships. Lieven J decided that she would deal with two of the three cases that had been consolidated, the ones where Mr MacDougall had applied for parental responsibility and a child arrangements order to spend time with the children. Lieven J separated KE v MacDougall (SE21P71590) for a number of reasons: the case concerned a child where a court order was already in place regarding contact and the application before the court was to vary that order, there was an application for a non-molestation order by the mother and there were concerns about potential non-accidental injury caused to the child and whether the local authority needed to become involved. That matter was adjourned but Lieven J did vary the existing child arrangements order relating to contact.

The mothers initiated contact with Mr MacDougall through social media and signed a written agreement given to them by Mr MacDougall; the contract clearly stated that Mr MacDougall would have no rights over the child or right to contact the child unless the mothers wished for contact to take place. Although the fact that Mr MacDougall was a carrier of fragile X was included in that written contract, the mothers stated that they did not understand the consequences of Mr MacDougall’s condition.

Mr MacDougall had had contact with the eldest child of one of the mothers, who was conceived from Mr MacDougall’s donation, which included unsupervised and overnight contact at the home he shares with his parents. There was also a period of time where Mr MacDougall lived with the mother, her partner and the children during the covid19 pandemic. The mother stated that she only allowed contact as she believed that that was the only way to convince Mr MacDougall to ‘sign over’ his parental rights to the mother’s partner, notwithstanding that this is not correct in law.

An incident occurred in June 2020 (the circumstances surrounding which were in dispute and being determined by the criminal court) which resulted in Mr MacDougall having no further contact with the eldest child. Mr MacDougall had not had any contact with that child’s sibling and a ‘half-sibling’ that were both also conceived using Mr MacDougall’s sperm donations.

Mr MacDougall applied for contact with all three children and parental responsibility for all three children on the basis that he had already had contact and built a relationship with one child and to ensure fairness with the siblings of that child; he also confirmed that he wished to be involved in the children’s lives ‘like their mothers’.

The Guardian had applied for a s.91(14) order despite this being the first application made by Mr MacDougall in respect of these children, on the basis that Mr MacDougall had explained that he would continue to make applications if he did not get contact or parental responsibility for the children.

Decision:

Lieven J considered the law in relation to parental responsibility, contact with sperm donors, s.91(14) orders and whether a party should be named in a judgement.

When considering the evidence, Lieven J gave consideration to the learning difficulties suffered by Mr MacDougall, but believed him to have a concrete way of thinking and little insight/empathy as to how his actions affected others. It was also considered that the mother of the child who had contact with Mr MacDougall was an unreliable witness and the Lucas direction was applied to her evidence. The court found the evidence of the second mother to be truthful.

Despite accepting that Mr MacDougall did have regular contact with the eldest child being considered under these applications, and that the mother of that child lied to the court about the frequency of that contact due to her motivation to stop Mr MacDougall having any contact with the child, the court concluded that there should not be contact between the sperm donor and the child. Lieven J noted that the original understanding between the parties was that Mr MacDougall would not have contact with the child but that the mother reached out and offered contact to hopefully assist in urging Mr MacDougall to transfer his rights to the non-biological mother (a position which does not align with the rights afforded to sperm donors under the current legislation).

Lieven J considered the criteria in Re H (Minors) and concluded that there was commitment shown to the child by Mr MacDougall and that there was an element of attachment between the child and Mr MacDougall. The downfall of Mr MacDougall’s application came through his motivation in making these applications and that Mr MacDougall does not show insight as to how his actions affect the mothers of these children and how this impacts on the children; Lieven J was concerned that Mr MacDougall would use any parental responsibility or contact with the children to control and punish the mothers. It was also considered that Mr MacDougall had been fundamentally irresponsible in acting as a sperm donor knowing that he suffered from Fragile X syndrome (an inheritable condition) and not making the implications of this syndrome clear to the mothers; it was noted by the court that Mr MacDougall took advantage of the vulnerability and desire of the mothers to have children.

Lieven J then explained the concerns around the impact on the mothers if parental responsibility was granted to Mr MacDougall; it was determined that there would be a detrimental impact on the first mother in particular if she had to share parental responsibility with Mr MacDougall.

Lieven J determined that Mr MacDougall should not be given parental responsibility for the children or contact with the children as the benefits under s.1(2A) of the Children Act 1989 was not enough to outweigh the level of harm that would be caused if contact and parental responsibility was given to Mr MacDougall. The court made the same conclusions in relation to the other two children not only due to the detriment but also the fact that he has never had contact with those children. Lieven J also determined that letterbox contact would not be appropriate as it would be a way for Mr MacDougall to gain information and indirectly influence and control the mothers and so the benefits did not outweigh the disbenefits.

It was also noted that an order under s.91(14) was a draconian order and should only be made in extreme cases. Lieven J confirmed that although it was unusual for an order to be made where there have not been any previous applications, the court can still make an order in an appropriate case. Lieven J determined that a s.91(14) order was necessary here as Mr MacDougall would likely reapply to the court at the first opportunity, which would be detrimental to the children and the mothers. The s.91(14) order was made for three years.

Lieven J then went on to consider whether Mr MacDougall’s name should be published in the judgement as the normal course of events is for the names of parents to be anonymised, unless the public interest outweighs the risk of identification of the children and the article 8 right to privacy. It was determined that there were strong grounds for the naming of Mr MacDougall: the court’s lack of confidence that Mr MacDougall would not act as a sperm donor in the future, the court’s lack of confidence in Mr MacDougall properly explaining the true implications of fragile X and that naming Mr MacDougall in the judgement would benefit any mothers considering using his services. Lieven J did not consider that the negative impact of naming Mr MacDougall was sufficient to afford anonymisation as his being named in the judgement is a consequence of the decisions he had made in acting as a sperm donor and making these applications.

Lieven J refused contact and parental responsibility between Mr MacDougall and all three children, made a s.91(14) order for three years and ordered that Mr MacDougall would be named within the judgement.

Summary:

An application made by the treating clinicians of a boy, aged 12, who suffered a tragic accident on 7 April 2022 where he managed to hang himself from the banisters using a dressing gown cord. The clinicians made the application to seek a declaration that the undertaking of the tests to determine whether there has been brain stem death, one stage of which involves removing the patient from their ventilator, was lawful and in the best interests of the child, Archie.

Background:

The relevant child, Archie, is a 12 year old boy who suffered a tragic accident on 7 April 2022 where he managed to hang himself from a set of banisters with a dressing gown cord. Archie was unconscious and not breathing for some minutes and suffered cardiac arrest; it was discovered that there had been no oxygen going to Archie’s brain for around 40 minutes. This resulted in a severe brain injury being sustained and various tests were performed which suggested that that Archie had not brain activity.

The family noted that there had been instances where Archie had squeezed the fingers of relatives and had opened his eyes and tears formed in response to the pain of a particular procedure.

Archie’s treating clinicians seek to perform the approved tests to determine whether Archie is brain stem dead; one of these tests involves Archie being taken off his ventilator. The clinicians suggest that it is highly unlikely that Archie will be able to breathe for himself if he is removed from the ventilator.

The trust made their application for a specific issue order under s.8 Children Act 1989 and sought a declaration from the court that performing these tests was lawful and in Archie’s best interests. This is opposed by the parents. The trust were also initially seeking a second declaration that if Archie was considered to be brain stem dead that mechanical ventilation should be removed at the appropriate time, however this was not pursued.

Archie was represented by his guardian who had the opportunity to visit Archie, speak to members of his family and speak to some of the treating doctors.

The court heard from an independent expert, Dr Playfor, who explained that Archie was entirely unresponsive and that, upon performing an informal apnoea test, there was no sign of Archie breathing independently. Dr Playfor explained that if Archie was formally tested, it is likely that he would meet the criteria for brain stem death. Dr Playfor noted the potential risks around performing the apnoea test but explained that the risk of serious complications was very small. Dr Playfor explained that further surgery or radiological investigations would not be in Archie’s best interests but that it would be in Archie’s best interests to have formal brain stem testing and that there was no reason to do anything other than that.

The guardian considered that it would be in Archie’s best interests to have formal brain testing.

Decision:

It was submitted by the trust that Archie needed the tests to assess his brain stem function. The parents question the necessity of these tests as they believe that Archie is still alive, but only oppose the undertaking of the apnoea test and not the other tests involved in testing brain stem function on the basis that the risks are too high.

Having heard all of the evidence, Mrs Justice Arbuthnot considered that the entirety of the brain stem testing, including the apnoea test, should be undertaken. Arbuthnot J considered that the risks were very small and noted that Archie’s oxygen levels did not drop below 100% when Dr Playfor performed the informal apnoea test; it was determined that there was no risk of further brain injury to Archie as oxygen would continue to be supplied through the windpipe.

Arbuthnot J considered that performing these tests would allow the clinicians and the family to know whether Archie is alive or dead, which would be of benefit to everyone. The anguish of the family was taken into account, however, the court considered that the testing was in Archie’s best interests; the small risks of the procedure were outweighed by the benefits of formally knowing what Archie’s condition is.

Arbuthnot J made a specific issue order under s.8 Children Act 1989 and gave a declaration that it is lawful and in Archie’s best interests for the brain stem testing to take place.

Summary:

The court considered: whether it had the jurisdiction to make return and welfare orders in relation to two children, aged 13 and 12, based on their habitual residence, whether proceedings in this jurisdiction should be stayed in favour of proceedings in Libya and whether any orders should be made. The court considered the first two issues and put off the issue of what orders should be made to another day, if M’s application was successful on the first two issues.

Background:

The matter concerned two children, aged 13 and 12, who had been residing with the father’s family in Libya since August 2020. The mother made an application for the children to be returned from Libya and placed in her care.

Both parents were Libyan and had been born and raised there. The parents moved to England to complete postgraduate studies. The children were born in England but are both Libyan citizens; the children’s residence permits expired in June 2021 but the parties have not yet been able to obtain citizenship for the children. The children had lived in England for the entirety of their lives until they moved to Libya in August 2020. F spent some time working in Libya but both parents undoubtedly live permanently in England. Both parents have been granted indefinite leave to remain in the UK.

The children were moved to Libya in August 2020, the parents disagree about the circumstances of this move, but F suggests that that at the end of 2021 the family would have been moving to Libya. The children were placed with the paternal grandfather and paterna aunt in Tripoli in August 2020.

The children have made allegations of physical abuse and neglect against M to their family in Libya; the children repeated the allegations to the Libyan police in October 2020.

On 14 August 2020, M reported an allegation of abduction to the police in the UK; M also reported the matter to social services, sought legal advice and attempted to negotiate with F’s family for the return of the children. The criminal child abduction allegation case has now been closed and no further action has been taken.

In October 2020, the paternal grandfather wrote to the children’s school explaining that he was caring for the children until the parental issues were resolved and that the children would then return to school in England; F had also written to the school asking for the children’s places to be kept open for their return.

On 4 June 2021, pursuant to an application made by M on 2 June 2021, the children were made wards of the court at a without notice hearing, but return orders were not made at that stage. On 6 June 2021, pursuant to an application made on 24 May 2021, the paternal grandfather was granted a legal guardianship order by the Libyan court. There is a travel ban on the children leaving Libya without the grandfather’s permission. Subsequently, M, through the maternal grandparents, has applied for discharge of the guardianship order. Proceedings are still ongoing.

F also sought return of the children to the UK and confirmed that this was the intention, but states that he cannot procure their return due to: the reports of abuse made by the children, ongoing enquiries by the Libyan authorities, Libyan court orders preventing removal of the children and the strenuous opposition of the paternal grandfather.

At the hearing on 17 June 2021, Poole J recited in the order that he considered that the children were habitually resident in England and Wales at the date of removal and remained habitually resident in this country as at 17 June 2021; it was also recorded in the order that there was a mechanism for the children to be returned to M by the paternal grandparents. At this hearing, Poole J also made a return order. The wardship and return orders were reiterated at subsequent hearings.

F raised the issue of habitual residence on 9 November 2021. The Embassy of the State of Libya was joined as an intervenor to proceedings. It was also at this point that F confirmed that he no longer sought return of the children to the jurisdiction as they were settled and happy in Libya. It was confirmed that there are no reciprocal enforcement steps which can be taken in Libya to implement or recognise the orders of this court and the Libyan courts would unlikely accede to any request for return of the children.

The guardian in the matter obtained the wishes and feelings of the children and confirmed that there were no real concerns about the care given to the children in Libya. It was noted that the greatest concern was the ‘seismic changes’ experienced by the children due to lack of contact and being separated from their parents.

Decision:

Peel J confirmed that M could not invoke the parens patriae jurisdiction as the children are not British nationals and do not hold a British passport.

M’s application was made under the inherent jurisdiction and an application for a specific issue order was not made by M; an application for a return order should be made by way of a specific issue order and the inherent jurisdiction only invoked exceptionally.

Mr Justice Peel went on to consider the law in relation to habitual residence and when children are considered to be habitually resident in the jurisdiction. Peel J firstly considered when habitual residence falls to be considered and explained that, if the matter was not considered until final hearing, this goes to strengthening the case for a defence to habitual residence as the child would be more settled and integrated in the country to which they had been removed, which may be unsatisfactory. The jurisprudence seems to suggest that the relevant date of habitual residence in relation to a 1996 Hague Convention country is the date of trial; Peel J noted his concerns about this and the opportunity for abductors to delay proceedings and strengthen their position.

Peel J then explained that different principles may apply to non-hague convention countries, such as Libya. Peel J explained that if habitual residence moves to a non-contracting state between issue of an application and the final hearing, jurisdiction does not travel with it and remains with the initial country; domestic law is engaged if habitual residence changes between the application being made and the trial. It was determined that the relevant date in this application was the date that the application was made.

Peel J then went on to confirm that where there are issues surrounding whether a child has a habitual residence or not, the former shall almost always prevail as it is not in a child’s best interests and is highly unlikely that a child will not have a habitual residence.

When considering the habitual residence of the children in this case, Peel J explained that the wishes and feelings of the children were relevant and as the children were yearning to be with their parents, they would likely prefer their residence to be with their parents. Peel J confirmed that a child’s habitual residence will normally follow the habitual residence of the parents, but not always. Peel J also found it hard to conceive that the children’s habitual residence in this case could have moved to Libya when they are deprived of contact with both parents.

Peel J then considered that the applications made by the paternal grandfather undermine the argument that habitual residence had transferred to Libya as the children were only retained their due to the coercive steps taken by the paternal family. It was also noted by the court that the parents intentions to renew the children’s UK residence permits when they expired in July shows that the parents had a clear intention of where they intended the children’s centre of interests to be.

It was also confirmed by Peel J that he was satisfied that even as of April 2022 the children’s habitual residence remained in England and Wales and so the court has the power to make welfare orders.

Peel J then explained that respect should be afforded to foreign states and their jurisdiction and that the best interests of children will normally work in harmony with comity. It was confirmed by a representative from the Libyan Embassy that the matter was an internal one for the Libyan courts due to the children being Libyan nationals and that the Libyan court was not obliged to carry out any orders made by this court. Peel J determined that the appropriate forum for these issues is England and Wales and declined to stay the proceedings in favour of the proceedings in Libya.

Peel J then adjourned the hearing in order to consider the welfare stage and if any welfare orders should be made at a later date. It was confirmed that there should be no jurisdictional enquiry at a later date when the matter is listed to consider welfare.