09 June 2022
Anonymity in private law children proceedings
In the recently reported case of MacDougall v SW and others (sperm donor: parental responsibility or contact) the judge took the unusual step of naming the father in the proceedings. In private law children proceedings, the parties' names are usually kept anonymous.
In this case, the father had fathered a total of fifteen children as a sperm donor. He was not working with a clinic but had been entering into private informal arrangements, typically with lesbian women who wanted a child. He advertised his services as a sperm donor via social media. These proceedings were linked to cases concerning four of those children by three mothers. The father has a genetic condition known as Fragile X Syndrome, which causes developmental problems including learning difficulties and cognitive impairment. The father did not explain his condition or its implications to the mothers (although there was reference to it in the agreement). The father himself is autistic and suffers from learning difficulties. His condition would prevent him from donating sperm via a clinic.
The judge refused the father's applications to have parental responsibility for or contact with the children. She found that the father's applications were motivated by a desire to control the mothers of the children rather than a genuine commitment to the children. It would be detrimental to the children's welfare to have contact with the father or for him to have decision-making responsibility for them. The judge made a section 91(14) order for three years, essentially preventing the father from making further applications about the children without the court's permission. This is typically regarded as a draconian measure only to be exercised in extreme cases. It was appropriate to make this order here given the father's tendency to become highly frustrated if he did not get what he wanted. He had said in terms to one of the mothers concerned that he would keep making applications until he got what he wanted. He lacked insight into the effect of his behaviour on the mothers of the children.
The judge's decision to name the father in the published judgment is unusual but justified in this instance. The father did not accept that he had done anything wrong and it was likely that he would go on to donate more sperm. It was probable that he would not inform the potential mothers that he suffered from Fragile X syndrome and that they would therefore be unaware of the potential genetic issues any children might suffer from.
The judge found that the risks of the children being identified by naming the father were low and that the risk of identification was outweighed by the public interest in naming him. In future, if women were thinking about using him as a sperm donor they might conduct a google search and find the judgment thereby alerting them to the issues. The judge commented, "there is a wider point about transparency in this regard. The usual approach of anonymity in the Family Courts should not be used as a way for parents to behave in an unacceptable manner and then hide behind the cloak of anonymity. The provisions and practice in respect of anonymity in family law are there to protect the children and not the parents." All three of the mothers were in favour of the father being publicly named.
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