James MacDougall v SW
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lieven,Mrs Justice Lieven DBE |
| Judgment Date | 24 May 2022 |
| Neutral Citation | [2022] EWFC 50 |
| Docket Number | Case No: DE21P07020 / DE21P07046 / SE21P71590 |
| Court | Family Court |
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[2022] EWFC 50
Mrs Justice Lieven
Case No: DE21P07020 / DE21P07046 / SE21P71590
IN THE FAMILY COURT
SITTING AT DERBY
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Lorna Robertson (instructed by Family Law Group) for James MacDougall
Ms Bethany Armitage (instructed by Bhatia Best) for SW and EG
Ms Jasmine Harrison (instructed by Howells LLP) for KE
Ms Carolyn Jones (instructed by Cartwright King Solicitors) for the Children
Hearing dates: 12 April 2022
Approved Judgment
This judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10.30am on 24 May 2022
This judgment is being handed down on 24 May 2022. It consists of 98 paragraphs.
The judge hereby gives leave for it to be reported.
I have before me three linked cases, all concerning children whose biological father is James MacDougall (‘JM’) who acted as sperm donor in the conception of the children. In the first two cases (‘SW’ and ‘EG’) JM has applied for parental responsibility orders and child arrangements orders (‘CAO’) for him to spend time with the children concerned. In the third case, the mother (‘KE’) has applied to vary an existing CAO and for a non-molestation order, and JM has applied for enforcement of the existing CAO. I decided to adjourn the latter case, although varying the existing CAO. KE's case has a number of features quite distinct from that of SW and EG, in particular that the child (‘B’) has had contact with JM over a period, recognises him as his father, and that there are court orders in place granting JM contact. Most importantly, B has recently presented with unexplained bruises on three occasions, and I have ordered a s.37 report to be drawn up by Sheffield CC. For those reasons I adjourned proceedings concerning B.
JM was represented by Ms Lorna Robertson, SW and EG were represented by Ms Bethany Armitage, KE was represented by Ms Jasmine Harrison and the Guardian was represented by Ms Carolyn Jones. I am very grateful to all of them for their assistance in the case.
Issues
In this judgment I deal with SW's two children, R aged 3 and P aged 2, and EG's child, N, aged 1.
The following applications arise pursuant to section 4 and 8 Children Act 1989:
a. JM's applications for a Parental Responsibility Order (‘PRO’) in respect of each child;
b. JM's application for a CAO order and to spend time with each child;
c. The Guardian's application that the Court should make an order under s.91(14) Children Act 1989 to prevent JM making further applications for a period of three years without the permission of the Court;
d. Whether the Court should publish JM's name in the judgment.
The Facts
In the last four years JM has acted as a sperm donor through private arrangements in a large number of cases. He told the court that he was the father of 15 children, all aged between nearly four and a few months old. Four of those children are concerned in the proceedings before me. At the end of the hearing Ms Robertson produced for the Court and for the Guardian a list of the children of whom JM was the biological father. The most recent was born in February 2022.
JM is 37 years old. He suffers from Fragile X syndrome, a genetic condition that causes a range of developmental problems including learning difficulties and cognitive impairment. Fragile X is an inheritable condition. JM placed an advert as a potential sperm donor on a social media page for lesbian women seeking sperm donors, which is how he made contact with the mothers in this case. He says that he first acted as a sperm donor to help a friend.
EG (the mother of N) is 26, SW (the mother of R and P) is 25 and KE (the mother of B) is 24. They were all therefore in their early 20s when they first came into contact with JM. All the mothers are, or have been, in lesbian relationships.
SW and her then partner EG were keen to have a baby and made contact with JM via the social media page. When JM and SW agreed for him to act as a sperm donor, SW, EG and JM signed a written agreement given to them by JM. This agreement was provided to JM by a friend, who he says is a lawyer. The agreement is a closely spaced three page document in highly legalistic language which is difficult to read even for a lawyer. It does state clearly on page one that JM will have no rights over the child and no right to contact with the child.
On page 3 of the agreement it is recorded that JM has Fragile X syndrome, however there is no explanation of what this means. SW said that she has difficulty reading, which was clear from her oral evidence. She said that she did not read that far into the agreement and therefore did not read the part about Fragile X. EG said that she did read more of the agreement but either did not see or did not appreciate the significance of the reference to Fragile X Syndrome.
R was born in October 2018. About two weeks after the birth, SW contacted JM and asked if he would like to see the baby, which he then did. By about February 2019 SW and EG's relationship was in difficulty and SW again contacted JM to ask if he wanted to see R. There is a dispute over how often JM saw R over the next 16 months and the terms of that contact.
SW said she suggested contact to JM because she wanted him to agree that EG would have full parental rights and she thought if JM had contact he was more likely to agree to that. It appeared from both her and EG's evidence that they had an extremely confused understanding about the law on parental rights over a child in this situation and believed that somehow JM could “give” EG his rights.
Whatever the confused legal understanding, in my view, although this might have been part of the motivation for initiating contact, the dates of that contact, which continue past the date SW and EG had unequivocally split up, indicate that SW was also suggesting contact for her own reasons. I will return to this issue below.
JM says he saw R regularly, initially about once a month and then by summer 2019 about once a week. He says that he would either see her with SW or EG, or he would take her round to his parents' house where he lived. His mother, Mrs M, who gave evidence, said that R came round regularly through this period. By October, R was staying overnight with JM at his parents' house. I have seen a series of text messages which show that R stayed overnight with JM on at least seven occasions, for a total of about 10 nights.
There are a number of texts which indicate that SW was asking JM for money, which he was giving her. JM says that in total he gave SW about £7000 which he expected to be repaid. SW accepted in cross examination that JM had given her some money but denied it was anything like £7000 and said she had repaid some of the money.
In early 2020 SW and her new partner JC decided that they wanted to have another child and asked JM to be the sperm donor. He says that he agreed, but this time on the basis that he would have contact with the child. SW denies this, however there is no written agreement in respect of this pregnancy.
SW became pregnant in early 2020. According to JM he was regularly going round to SW's house and during the first lockdown he lived there for some of the time between March and June 2020. During this period he necessarily had considerable contact with R. He says that SW told him that she had aborted the baby. She denies this and said that JM knew she continued to be pregnant.
At a date in June, but it is not clear precisely when, SW asked JM to leave. She says that this was because she became concerned about his behaviour. She referred to JM making sexual comments to her, suggesting she leave JC for him, and rubbing his erection against her. JM denies all these allegations. SW also says she found JM showering with R on at least two occasions, which she considered to be totally inappropriate. Whatever the precise detail of what happened during this period it is clear that any friendship between SW and JM completely broke down. She says that his behaviour was very weird, and she became very uncomfortable with him being around.
JM did agree to leave the property, however there was a serious incident on 25 June 2020 at SW's house. According to SW this was the same day that JM had left the property and he returned later the same day. JM's version of events is that he went round to SW's house to retrieve some of his possessions including two mobile phones which he had given to SW. He says that SW had been exploiting him for money and he had lent or given her about £7000, which she was refusing to pay back.
When he went round to the house, he says that SW came out and swore at him. She then grabbed him and pushed him into the house. SW, JC and a male friend assaulted JM, and he denies assaulting or harming any of them. He says that he suspects that the injuries on SW were as a result of “playfighting” between SW and JC.
SW's version of this incident is very different. She says that JM came round to the house and banged on the door and the windows. She was inside with JC and two friends and a number of young children. She went out to speak to him and he then forced his way into the house. He attacked SW and left her with bruises on her throat and back. A friend of SW who was in the house with his wife and children then physically...
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