Ms M v Mr F (1st Respondent) Mr H (2nd Respondent)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Peter Jackson |
| Judgment Date | 05 July 2013 |
| Neutral Citation | [2013] EWHC 1901 (Fam) |
| Date | 05 July 2013 |
| Court | Family Division |
[2013] EWHC 1901 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
The Honourable Mr Justice Peter Jackson
Barbara Connolly QC & Samantha King (instructed by Dawson Cornwell) for the Applicant
Deborah Eaton QC & Madeleine Reardon (instructed by Withers LLP) for the 1 st Respondent
Matthew Persson (instructed by Osbornes) for the 2 nd Respondent
Hearing dates: 2 – 5 July 2013
Judgment date 5 July 2013 with subsequent rulings made on 18 July 2013
These proceedings concern the legal parentage of a child aged two. He was conceived after his mother (Ms M) met his biological father (Mr F) on an internet website where Mr F was advertising his services as an unpaid sperm donor. The central dispute between the mother and the father is whether the conception was the result of artificial insemination (as he says) or sexual intercourse (as she says). If conception was the result of sexual intercourse (known as natural intercourse or NI) Mr F will be the legal parent of the child, but if it was the result of artificial insemination (AI) the question of parentage depends on the effect of the Human Fertilisation and Embryology Act 2008.
The third party to the proceedings is Mr H, the mother's husband at the time of the child's birth. He is almost 30 years older than Ms M and Mr F, who are in their middle years and hold high academic and, in Mr F's case, professional qualifications.
Ms M has applied for a declaration under s.55A of the Family Law Act 1986 that Mr F is the legal parent. She has also applied for financial provision for the child under Schedule 1 of the Children Act 1989.
I have read and heard evidence from the three adults and received submissions on the following questions:
(1) What were the circumstances of the conception?
(2) If conception was by AI, has it been shown that Mr H did not consent within the meaning of s.35 HFEA 2008?
(3) If it is shown that Mr H did not consent, is the consequence that Mr F is the child's legal father, or that the child has no legal father?
I select the following information from an agreed chronology of events.
| 2003 | Mr F, who had previously been a licensed clinic donor since 2000, registered as a sperm donor on an internet website. Over the following years, he was an active donor, by his own account fathering some 30 children by means of AI or NI. He also registered with two other websites but never received any responses through them. |
| 2004 | Ms M and Mr H met. |
| 2008 | Ms M and Mr H married. |
| 2009 | They took medical advice about their chances of having children in the light of Mr H having undergone a vasectomy. |
| 15.2.10 | They were advised by a specialist clinic that the chance of their conceiving was 'pretty grim'. |
| 21.2.10 | Ms M contacted Mr F via the website. She misleadingly told him by e-mail that Mr H was in support of donor insemination and that he would like to meet him. |
| 29.3.10 | The first of twelve meetings between Ms M and Mr F before the birth of the child. Ms M and Mr H travelled to London by train. They argued about Ms M's plans, which Mr H did not like. They met Mr F at a station and all three went (as I find) to a nearby café outside the station. After a very short time Mr H, who never sat down, left and Ms M and Mr H went to Mr F's nearby flat where he provided her with sperm with which to inseminate herself. Ms M says that in the process Mr F attempted to seduce her but that he desisted. In the month afterwards, arguments between Ms M and Mr H continued. |
| Mid-4.10 | Ms M informed Mr F that she was not pregnant and they arranged another meeting. |
| 23–26.4.10 | Second meeting. Ms M met Mr F at his flat. Ms M alleges that they had sexual intercourse on each of the four days and that on 25 April she stayed the night, sharing Mr F's bedroom. On the other nights she stayed in a hotel with Mr H, who had travelled to London. Mr F says that there was no sexual activity and that AI took place each day. |
| 21–23.5.10 | Third meeting. Ms M stayed for the weekend with Mr F at his flat. He gave her a spare key. She states that over the weekend they engaged in sexual intercourse at least seven times. Mr F's cousin and his girlfriend were occupying the spare bedroom. Mr F says that AI took place and that Ms M stayed overnight in his study, used as a third bedroom. |
| 4.6.10 | Ms M told Mr F that she was pregnant. She also informed Mr H. He reacted violently. |
| 26.6.10 | Mr H accompanied Ms M to a clinic where her pregnancy was terminated at his demand. |
| 28.6.10 | Ms M told Mr F that she had had a miscarriage. |
| 21.8.10 | Mr F moved to a property intended for occupation by himself, his then girlfriend and their first child. They had met via the website in 2008 and he has fathered two children with her by NI. In fact, the girlfriend did not move in due to the deteriorating state of the relationship: at this time she was pregnant with the second child. |
| 31.8.-4.9.10 | Fourth meeting. Ms M stayed at a hotel for three nights and a B&B for one night. She says that Mr F visited the hotel several times and that they had sex. Mr F accepts that he visited twice and says that he donated sperm at the hotel. Ms M, having undergone a termination, was upset at seeing an old newspaper article about a child born as a result of other donor activity by Mr F. |
| 5.9.10 | Ms M contacted the website to report a problem with a sperm donor who had been having sex. She received an unsympathetic response from the site's founder. |
| 6.9.10 | Email message Ms M to Mr F: "I hope you don't think that I'm ungrateful for your donations and your time which is clearly precious. I am, exceedingly grateful! And I couldn't ask for a better donor/biological father…" |
| 23.9.10 | Fifth meeting. Ms M states that Mr F stayed overnight with her in a hotel and they had sexual intercourse at a time when she was not ovulating. Mr F says that they met for a pizza so that he could quell her anxieties about the newspaper article, and they did not spend the night together. |
| 3–4.10.10 | Sixth meeting. Ms M stayed overnight with Mr F at his new home. She says that there was sexual activity on both days, and that on 3 October it was without her consent. In February 2013 she reported this and other incidents mentioned below to the police. Mr F denies any sexual activity on that occasion. It is agreed that the conception of the child will have occurred at this time. |
| 12.10.10 | Ms M discovered that she was pregnant, but did not tell Mr F. |
| 12.10.10 | Mr F's mother died suddenly. |
| 22.10.10 | Mr F contacted Ms M and asked her to come to London. |
| 23.10.10 | The funeral of Mr F's mother was held. |
| 28–30.10.10 | Seventh meeting. Ms M stayed overnight with Mr F in his house and they had sexual intercourse each day. Mr F states that it was the first time that sexual activity occurred. Ms M alleges that on 29 October it was without her consent. Mr F denies this. Ms M says that she was upset to see details of Mr F's full range of donor activities and relationships on his computer. |
| 24.11.10 | Ms M and Mr F planned to meet, but were prevented by Ms M's ill-health. |
| 12.10 | Mr F moved to stay at a friend's flat |
| 3.12.10 | Ms M informed Mr F she was pregnant. |
| 8.12.10 | Eighth meeting. Ms M stayed overnight with Mr F at the friend's flat and they had sexual intercourse. |
| 16.12.10 | Ninth meeting. Ms M stayed overnight with Mr F and they had sexual intercourse. |
| 1.11 | Mr F moves to a new address. |
| 2.11 | Tenth meeting. Ms M and Mr F meet and have sexual intercourse. Ms M alleges lack of consent to aspects of the sexual activity. Mr F denies this. |
| 6.4.11 | Ms M and Mr H separate. |
| 27.4.11 | Eleventh meeting. Ms M alleges lack of consent to aspects of their sexual activity. Mr F denies any lack of consent. |
| 10.5.11 | Twelfth meeting. Ms M stays overnight with Mr F. |
| 6.11 | Birth of the child. |
| 14.7.11 | Ms M composed a long email, as if written to a female friend, and deliberately 'misdirected' it to Mr F in the hope of rekindling his affections. |
| 8.8.11 | Ms M registered the birth. The certificate does not name the child's father. |
| 8.8.11 | 'Nicole White' sent an email to Ms M alleging that Mr F "uses his donor status to get women into bed". Ms M produces this as an exhibit but cannot say how she obtained it. Mr F has since September 2011 alleged that 'Nicole White' is an alias for Ms M. |
| 19.8.11 | Ms M sent an email to the journalist using the false name 'Andy Hitchings'. The message contains discreditable information about Mr F. Ms M says she did not compose the message herself but that she copied it from an email account to which 'Nicole White' had given her the password. |
| 19.8.-24.9.11 | Stream of c.20 messages between 'Andy Hitchings' and the journalist, planning complaints and publicity about Mr F. Ms M admits writing some, but denies writing others. |
| c.20.8.11 | Ms M made a complaint to Mr F's professional body, using the name Andy Hitchings. |
| 8.11 | 'Edward Mason' made a complaint in very similar terms to Mr F's employer. |
| 29.8.11 | The website founder replied to a complaint about Mr F from 'Edward Mason' saying that Mr F had been banned from the site for undertaking NI. Mr F alleges that 'Edward Mason' is an alias used by Ms M. She denies this. |
| 30.8.11 | The 'Andy Hitchings' complaint to Mr F's professional body was dismissed as not relating to his professional activities. |
| 9.11 | Mr F says that an ex-girlfriend and two previous recipients contacted him to say they had been phoned by journalists. Mr F met Ms M concerning the threatened publicity. She told him that she too had been contacted. In fact she was in touch with at least one journalist herself. |
| 9.11 | The intended article was not published... |
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