Case No. EWFC-50

Guidelines) (Residence and Religious Heritage) [1999] 2 FLR 573 where Butler Sloss LJ set out clear guidelines for the making of such orders. Although there are numerous subsequent cases, those guidelines continue to hold good and are a clear statement of the correct approach:“Guidelines(1) Section 91(14) of the Act of 1989 should be read in conjunction with section 1(1), which makes the welfare of the child the paramount consideration.(2) The power to restrict applications to the court is discretionary and in the exercise of its discretion the court must weigh in the balance all the relevant circumstances.(3) An important consideration is that to impose a restriction is a statutory intrusion into the right of a party to bring proceedings before the court and to be heard in matters affecting his/her child.(4) The power is therefore to be used with great care and sparingly, the exception and not the rule.(5) It is generally to be seen as a useful weapon of last resort in cases of repeated and unreasonable applications.(6) In suitable circumstances (and on clear evidence), a court may impose the leave restriction in cases where the welfare of the child requires it, although there is no past history of making unreasonable applications.(7) In cases under paragraph 6 above, the court will need to be satisfied first that the facts go beyond the commonly encountered need for a time to settle to a regime ordered by the court and the all too common situation where there is animosity between the adults in dispute or between the local authority and the family and secondly that there is a serious risk that, without the imposition of the restriction, the child or the primary carers will be subject to unacceptable strain.(8) A court may impose the restriction on making applications in the absence of a request from any of the parties, subject, of course, to the rules of natural justice such as an opportunity for the parties to be heard on the point.(9) A restriction may be imposed with or without limitation of time.(10) The degree of restriction should be proportionate to the harm it is intended to avoid. Therefore the court imposing the restriction should carefully consider the extent of the restriction to be imposed and specify, where appropriate, the type of application to be restrained and the duration of the order.(11) It would be undesirable in other than the most exceptional cases to make the order ex parte.”Naming JM44.Section 12 of the Administration of Justice Act 1960 and s.97(2) Children Act 1989 impose restrictions on reporting and publications in family cases involving children. Courts may publish judgements anonymised to protect the identity of the children.45.Section 97(2) Children Act 1989 provides that “no person shall publish to the public at large or any section of the public any material which is intended, or likely to identify (a) any child as being involved in any proceedings before the High Court or the family court in which any power under this Act may be exercised by the court with respect to that or any other child; or (b) an address or school as being that of a child involved in such proceedings”. Section 97(4) relaxes the prohibition where the welfare of the child requires it. 46.When the court is asked to permit reporting of such cases the court must strike a balance between Article 8 and 10 of the ECHR.47.Sir James Munby P in Re J (A Child) [2013] EWHC 2694 at [22] stated:“The court has power both to relax and to add to the “automatic restraints.” In exercising this jurisdiction the court must conduct the “balancing exercise” described in Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593. [2005] 1 FLR 591 and A Local Authority v W, L, W, T and R (by the Children’s Guardian) [2005] EWHC 1564 (Fam), [2006] 1 FLR 1. This necessitates what Lord Steyn in Re S, para [17], called "an intense focus on the comparative importance of the specific rights being claimed in the individual case". There are, typically, a number of competing interests engaged, protected by Articles 6, 8 and 10 of the Convention. I incorporate in this judgment, without further elaboration or quotation, the analyses which I set out in Re B (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.The Guardian’s position63.The Guardian opposes the making of a PRO or JM having contact with any of the children. She also proposes the making of a s.91(14) order and the naming of JM in the judgment. 64.She says that JM’s main commitment appears to be to making the applications rather than to the children. The children have no attachment to him, and their attachment is entirely to their mothers. She considers that if JM did have PR for the children, he would be unlikely to be able to exercise it meaningfully in their best interests. She suggests that JM’s anger and feeling of betrayal towards SW lies at the heart of the applications. 65.In her report the Guardian refers to JM’s compulsive behaviour, frequently phoning her when she did not immediately respond to him. The papers suggest that between 25 and 27 December 2020 JM made 77 calls to SW’s partner which has led to a prosecution for harassment. 66.The Guardian also considers that making the orders would have a very negative effect on the mothers. She said that they would become engulfed in conflict with JM, as has been the case for B for some time. She also points to how upsetting for the children must have been the incident on 25 June 2020. 67.She has considered whether JM could have letterbox contact. However, in her view this might result in JM seeking to impose himself on the children’s lives and cause further disruption. JM told the Guardian that he would continue to make applications until he got the outcome he wants. 68.In her written submissions the Guardian states that JM should be named in the judgment. She is concerned about the number of informal sperm donations that are occurring and the lack of any regulation. She considers that naming JM will alert women of the risks and perhaps encourage them to think carefully before using such donations. Conclusions and Findings69.There are a number of disputed factual issues upon which I need to make findings, including the extent of contact between JM and R in the period from Summer 2019 to June 2020 and the incident on 25 June 2020. 70.I accept that JM did have regular contact with R from about October 2019 through to March 2020 when lockdown commenced. There was then a period up to June 2020 when JM was staying with SW for about three days per week. I accept that SW deliberately sought to minimise the amount of time R spent with JM and was deliberately untruthful in her statement. She said in the statement that he had only spent about 20 minutes with R on one occasion and this was plainly untrue. The texts and photos were clear that there had been something like seven occasions when JM had overnight contact with R, and one of those was for three nights. All of these stays were at the house where JM lives with his parents. 71.However, as I set out above, SW’s lies in respect of the frequency of contact were motivated by her desire to stop JM gaining any role in R’s life and do not suggest that she is invariably not telling the truth.72.On the 25 June 2020 incident I prefer SW’s version of events to JM’s. Firstly, it seems inherently unlikely that SW would have dragged JM into the house. She is much smaller than JM and would just physically have found it difficult to pull him in. Also, one must ask why she would have done that given that she undoubtedly wanted him to go away, not least because there were young children in the house. The account that she went out to tell him to leave because he was upsetting the children is much more likely. Secondly, there is photographic evidence of bruising to SW’s neck which accords with her version of events. Thirdly, the other adults in the house all gave statements to the police which generally supported SW’s version. Fourthly, JM’s general demeanour as someone who gets very frustrated and loses control when he does not get what he wants accords with SW’s version of at least the start of the incident. Fifthly, it seems from JM’s own account that he could have left when SW came out of the house, but he chose not to do so because he “wanted to get his stuff”. That suggests to me that he was at least to some degree the protagonist. 73.I am not sure SW told me a fully accurate version of events inside the house, but I accept that JM forced his way in and there was then a scuffle in front of the children. I fully accept that that must have been extremely frightening for the children.74.There are effectively three issues in respect of each of the children – whether JM should have contact with the children, whether I should make a PRO, and whether I should make a s.91(14) order. 75.In respect of R there was a written agreement between JM, SW and EG, which states in clear terms that JM will not have any right to have contact with the baby. That was the understanding of all three parties at the time. However, it was SW who then contacted JM and asked him if he wanted to come and see the baby when she was two weeks old. 76.SW then contacted JM later to ask him if he wanted further contact. SW said she did that because she wanted JM to pass his rights in respect of R to EG. it was not easy to follow the logic of what SW was saying in this regard. She referred to having gone to a lawyer for advice, but neither she nor EG were at all clear about what the advice was. It is possible that SW was trying to persuade JM to give assistance to EG gaining a PRO, but there is no evidence she actually suggested this to JM. It seems more likely in my view that at least part of her motivation for proposing contact was that she wanted to get money from JM, both for R and herself. There are texts from SW asking to borrow money. I note that JM seems to have been generous in giving SW money, although it is not possible or necessary to try to establish how much money he actually gave her or the terms of whether or not it would be repaid. JM does not work but appears to have had plentiful funds given to him by his parents. 77.Applying the three criteria in Re H (Minors), the initial agreement was that JM would have no role in R’s life, but he did then show some commitment to her. However, the position now is that SW is very strongly opposed to him having such a role. I accept that there was some attachment between JM and R, and there is no reason to believe that the contact he was having with her before March 2020 was not positive for her. However, that contact was relatively limited and ended almost two years ago. As is clear from the presumption in s.1 (2A), it will generally be positive for a child to know both their parents and have a relationship with them.78.I do however have considerable reservations over JM’s motivations for seeking parental responsibility and contact with R and am concerned about what he would do if he did have the benefit of these orders. I think he does have affection for her, but also enjoys the idea of being her father. However, he appears to have no insight into the impact of these applications on SW, or the other mothers, and the knock-on impacts on the children. In my view, a large part of his motivation for making these applications is to control SW and EG and have control over their lives. It may be that he is particularly fixated on SW and is merely using the application against EG as a means of “getting at” or punishing SW. If he has parental responsibility then I think he will use that as a mechanism against SW to gain information and control. The fact that JM has so little insight into the impact of his behaviour, and appears to lack self-control, makes my concerns about his motivations particularly worrying. 79.I also take into account the fundamental irresponsibility of JM acting as a sperm donor whilst knowing that he had Fragile X Syndrome, an inheritable condition, without at the very least making it entirely clear to the mothers concerned the implications of Fragile X. JM knew that he could not be a sperm donor through a clinic because of his condition. He told the Guardian that he thought Fragile X was not serious and it was for the mothers to do the research. Even if JM does not understand the true implications of Fragile X, he does know it prevents him acting through a donor clinic. 80.Although the agreement does refer to Fragile X, JM took no steps to explain the condition to SW or EG and no steps to ensure they understood. JM took advantage of these young women’s vulnerability and their strong desire to have children. This failure to take responsibility for his own condition, and to have any apparent concern for the long-term impact both on the mothers and potentially the children, is a factor in concluding that JM should not be given parental responsibility for the children. 81.I am also very concerned about the impact of JM having parental responsibility or contact on SW. She is herself a vulnerable and fragile person who will find sharing PR with JM immensely difficult and upsetting. The consequential impact on R, given that she herself has development difficulties, is likely to be even more severe than with many children. I conclude that if JM had parental responsibility or contact with R, then the impact on SW would be extremely detrimental and that would then lead to a very negative effect on R’s welfare. I do take into consideration the relatively positive relationship JM had with R whilst he was having contact, and the fact that Mr Donohue considered contact with B was positive. I also take into account the overall presumption in s.1(2A), but these factors do not outweigh the level of harm that would be caused.82.I therefore refuse both a PRO and contact in respect of R. 83.The position in respect of P is more straightforward. There was no written agreement, but given that SW was opposed to contact, I accept SW’s evidence that she told JM she did not agree to him having contact. However, when SW became pregnant he was having contact with R so it may be there was no real clarity and JM chose to assume that he would have contact with both children. EG (in respect of N) says she asked JM to provide a written agreement and he found various reasons not to do so. I am not sure that SW understood the benefits of a written agreement and in practice was probably little concerned about whether she had one or not. Therefore, on balance I conclude that the original agreement was that JM would not have contact with P, but the position is sufficiently unclear that I put little weight on that original position. 84.However, JM has never had any contact with P and has never seen her. From June 2020 SW has been entirely clear that she does not want JM to have any role in P’s life. 85.For all the reasons set out above, I think it would be highly detrimental to P’s welfare for JM to either have parental responsibility or contact. I therefore refuse to make both orders.86.EG was desperate to have a baby, having a condition which she believed made it very difficult for her to become pregnant. She had tried to become pregnant with another donor and failed. She said, and I accept, that she asked JM repeatedly to provide an agreement, but she was so keen to have a baby that she was prepared to proceed without an agreement. 87.EG is not as vulnerable as SW and probably is more capable of dealing with JM. However, she has been clear throughout that she does not wish him to have any role in N’s life, and I accept that she made that clear to him at the outset. I thought EG was a truthful and accurate witness, and I accept that she told JM before conception that she would not agree to any contact. Given that JM does not seek contact or parental responsibility in most of the other cases where he is the father, he says because the mothers do not wish it, I do not understand his motivation for seeking it with N, save as a means of exercising control over EG. JM appears to have a sense of grievance against SW and through her EG, and this may be part of the motivation for pursuing parental responsibility and contact with N. 88.Given the very fraught emotions between EG and JM, and her strong desire for him not be involved, I think it would be highly detrimental to N’s interests for him to have contact with JM. It could only lead to EG being stressed and potentially traumatised, and many future difficulties. 89.In all the cases I have considered whether letterbox contact would be appropriate. However, I agree with the Guardian that this is likely to be used by JM as a method of gaining information and indirect influence and control over the mothers. I therefore consider the benefits do not outweigh the disbenefits. Section 91(14) 90.A section 91(14) order is a draconian one which should only be used in extreme cases. It is unusual to make such an order where there have not been repeated applications, however, it is quite acceptable for the Court to do so in an appropriate case. In my view this is such an appropriate case. This is in part because of JM’s lack of any role, other than biological parenthood, in P and N’s lives. However, most importantly it is because of JM’s apparent inability to control his frustration at not getting what he wants. There is clear evidence of his making frequent phone calls and messages to try to achieve his goal, and his complete lack of insight into the effect of such conduct. He said to the Guardian that he would continue to apply until he got what he wanted. It is plain that JM does not understand, or accept, boundaries.91.I am confident that if I do not make a s.91(14) order JM will simply reapply at the first possible opportunity. This would be traumatising for both mothers, and ultimately highly detrimental to the interests of the children. Therefore I will make an order pursuant to s91(14) Children Act 1989 for three years.