Case No. EWFC-50

(A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142, at para [93], and in Re Webster; Norfolk County Council v Webster and Others [2006] EWHC 2733 (Fam), [2007] 1 FLR 1146, at para [80]. As Lord Steyn pointed out in Re S, para [25], it is "necessary to measure the nature of the impact on the child" of what is in prospect. Indeed, the interests of the child, although not paramount, must be a primary consideration, that is, they must be considered first though they can, of course, be outweighed by the cumulative effect of other considerations: ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166, para [33].”48.Lord Steyn at [17] in Re S, A Child [2004] UKHL 47 states:“The interplay between articles 8 and 10 has been illuminated by the opinions in the House of Lords in Campbell v MGN Ltd [2004] 2 WLR 1232. For present purposes the decision of the House on the facts of Campbell and the differences between the majority and the minority are not material. What does, however, emerge clearly from the opinions are four propositions. First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test. This is how I will approach the present case.”49.In Griffiths v Tickle [2021] EWCA Civ 1882 the Court of Appeal was considering the issue of naming the parents in proceedings, notwithstanding the risk of identification of the child. The facts of the case were wholly different but it is an example of a case where the public interest in naming the parents was a significant factor despite the likely identification of the child. The evidence50.I heard oral evidence from JM, his mother Mrs M, SW, EG and the Guardian Ms Vine.51.JM gave his evidence from a separate room in the court building via a video link. I had considered at an earlier hearing an application for an intermediary and I ruled in that hearing that an intermediary was not justified on the basis of the intermediary report. Although JM did not make eye contact through his evidence, and was sometimes reluctant to answer, I had no doubt he understood all the questions and was capable of answering fully. He was properly engaged in the proceedings and appeared to have no difficulty understanding what was happening and being able to give instructions to Ms Robertson. The Court had breaks each morning and afternoon and I am confident that he could give the evidence he wished. Ms Robertson did not suggest otherwise.52.JM is plainly a complex person. He has been diagnosed as having learning difficulties and being on the autistic spectrum. This diagnosis accorded with his presentation as having a very fixed view, a tendency towards concrete thinking and a profound lack of insight.53.JM found it very difficult articulate why he wanted to have contact with the children. He said he wanted parental responsibility because he wanted to be involved in the decisions in their lives “like the mothers”. This was despite the fact that he accepted that the written agreement in respect of R had made it clear he would have no rights. He suggested he wanted contact with P and N because if he was going to have contact with R then it would be unfair on the others if they did not have contact with him. In respect of the other children for whom he was the sperm donor, he appeared to be content to be led by the position of the mothers. He did not appear to have any understanding of the impact on the mothers of his behaviour. 54.He said on a number of occasions that he thought it was only fair for P and N to know him if R was having contact. He wanted them all to know he was their father and for them to have some form of relationship with him. 55.JM had a very concrete way of seeing things and had very little (if any) insight into the impact of his behaviour, and equally little empathy as to how it affected others. He quickly becomes agitated, aggressive and loses control when not getting his way. I thought Ms Vine’s assessment was very accurate. I suspect that JM can provide appropriate care for one child when he is calm and all is going well. However, I can also fully accept that when he becomes agitated he cannot control his emotions. He became upset when I gave my interim ruling and became angry and found it very difficult to control himself. There is copious evidence of him ringing or contacting people on multiple occasions if they do not do what he wants, and he simply will not take no for an answer. He had no insight into the impact this behaviour has on other people, particularly someone as vulnerable and emotional as SW. He had accepted that he did at times become frustrated and aggressive, but he said he never did this in front of children. However, I do not consider that JM has any self-control over his feelings of anger and frustration. 56.I do not think JM was deliberately untruthful on most points of dispute, but he saw everything from his own perspective. However, where his evidence differed from that of EG, I prefer the evidence of EG as I will explain below.57.Mrs M is JM’s mother. She, and presumably JM’s father, have been placed in a highly invidious position by JM’s actions and his relationship with the mothers in these cases. It was apparent from her evidence that JM has not been truthful to her about the number of children of whom he is the biological father. She only found out he was acting as a sperm donor after B was born. She said JM had told her there were five children but suspected it might be more, however, she had no idea it was as high as 15. She appeared to have supported him in his efforts to have contact with the children, including ringing up EG and EG’s mother to try to get contact with R.58.Mrs M seemed to have an oddly disengaged attitude to JM advertising himself as a sperm donor even though she knew he had Fragile X syndrome. I suspect, though cannot be confident, that her attitude to JM is to support him in whatever he chooses to do and not to challenge or question him. This is one of the reasons why I did not feel that she was a protective factor for the children, and did not feel confident in allowing her to be the supervisor for contact with B. 59.I do find that Mrs M was truthful about how often she and JM had contact with R. Her account tallies with the texts and photographs. 60.SW also has learning difficulties and came across as being extremely vulnerable. Special measures had been put in place before the hearing by way of a screen and a separate waiting room. It was also permitted that her partner, JC, could be next to her whilst giving evidence albeit not involved but providing support. SW was highly stressed giving evidence and frequently became very agitated, and the Court had to take breaks. It was plain that she passionately loves her children and is highly protective of them. She is adamantly opposed to JM having contact with R or P and became extremely upset when considering this. SW found giving evidence when JM was in the courtroom very stressful.61.However, she was also, in my judgement, a very unreliable witness. It was plain that she had sought in her written evidence to minimise the contact that JM had had with R before June 2020 and had simply lied in her statement. Equally, I do not think she was being honest with the court about the money that JM had given her. SW is a witness for whom the Lucas direction (R v Lucas [1981] QB 720) is particularly relevant. The fact that she told lies about some issues does not mean that she was lying about all the matters in dispute. She was desperate to suggest that JM’s contact with R was minimal even though that was not true. I note the comments of Lady Hale in Re B [2008] UKHL 35 at [39] about the need in private law applications to be careful about the evidence of one parent who is seeking to gain an advantage “in the battle against the other parent. This does not mean that they are false but it does increase the risk of misinterpretation, exaggeration or downright fabrication.”62.EG was a clear witness who thought about her answers and was in my view telling the truth. She was honest about not having read the agreement about R properly. She was undoubtedly irresponsible, as was SW, in using JM as a sperm donor without making proper inquiries about his health record, but I accept that she was desperate for a child.