The High Court have recently dealt with another case (there have been a lot, relatively speaking) where a man (DB) fathered a child for two women in a relationship and later wanted to have more contact than the two mothers had in mind.
One of the contested issues in the case was whether the man had (as he said) offered to father a child to be raised by the two women but play a part in the child’s life, or whether (as both of the mothers said) he was basically being asked for nothing but his biological contribution.
It was common ground that the child had been conceived in the usual way, rather than by artificial insemination, the argument was about whether the common understanding was that this was where DB’s role ended.
Re SAB (A child) 2014
One of the big lessons from this (as indeed from most of the previous cases about this sort of situation) is that if you are embarking on a plan of conception that is something out of the ordinary, firstly make sure that all of the adults involved have exactly the same understanding and thoughts about what is intended, and secondly get something down on paper that reflects that.
This case was complicated further by the fact that the father DB, and the biological mother AB, had previously had a romantic and sexual relationship, which was over by the time of the conception of the child.
The tension that this must have brought to bear on the whole dynamic probably wasn’t helped when DB engaged in some ‘sexting’ and sent a photograph of his [Menswear Department] in a mobile phone text. This text and image ended up being received by AB.
DB said later that it was meant to go to an entirely different woman, hopefully one who was a willing or keen recipient of such image. In fact, he had never sent it to AB and wasn’t sure how it had ever reached her.
One can appreciate how AB, and the other mother CB might have misconstrued his intentions there. The Court accepted that this was entirely an accident and not an attempt to rekindle his relationship with AB or cause tension between her and her partner CB.
In any event, what happened was that from going from a voluntary arrangement whereby the father was seeing his child in the first year, contact was completely ended, and the Court needed to become involved.
The tensions, already high, were not helped by a long paragraph in a statement filed by the father – this, whatever it was, ramped up the temperature so much that it led AB to express the feeling that she hated him.
19. Throughout this hearing, which has now spanned three days, I have, frankly, been puzzled as to the intensity of the opposition to contact now, when, until a year ago, it was happening relatively smoothly and given that it was accepted that DB had not, himself, sent or caused the obscene photograph to be sent. It was very difficult to discern any other clear explanation in the facts and circumstances of this case as to why attitudes now appear to be so entrenched
- I have read, of course, the third statement of DB, originally signed and dated in November 2013. That included at paragraph 9 a paragraph of some length, and I have been shocked at what DB thought it appropriate to state in that paragraph. Nothing, however, had been said about it throughout the first two and a half days of this hearing. Almost at the very end, whilst she was asking some questions of the child’s guardian, Mrs Susan Scott, this morning, AB referred to her “hatred” for DB. Apparently she had used the word “hatred” in some meeting or meetings with Mrs Scott, but it was certainly the first time a word of such intensity and violent emotion had been used within the courtroom. I enquired of AB why she felt such “hatred” and it emerged that it stemmed from what he had chosen to say in paragraph 9 of his first version of that statement.
- As a result, that statement has been edited so as to remove altogether the highly offensive parts of paragraph 9, and a fresh version, with a much shorter paragraph 9, has been signed by DB today, 23rd January 2014. All the copies in the courtroom of the earlier version with the longer paragraph 9 have all been returned to Mr Shelton, counsel for DB, who will ensure that they are totally destroyed. I am not going to make any reference whatsoever to the offensive parts of paragraph 9. But it tragically appears that AB expresses a feeling of hatred toward somebody for whom she previously felt friendship and affection, in considerable measure because of his foolish lack of judgment in saying such unnecessary, deeply offensive and highly intimate things. As I observed earlier this afternoon, however, it would be very wrong for decisions to be made affecting the entire childhood and, indeed, lifetime of this tiny, vulnerable child on the basis of one foolish misjudgment of that kind.
I rather like the pragmatic solution that the Judge hit upon for this. Rather akin to Basil Fawlty dealing with Bernard Cribbins’ flawed Spanish omelette (“There, I’ve torn it up, you’ll never see it again”). I think there’s a line in one of A P Herbert’s imaginary judgments about a judgment given by a High Court judge having been locked in a trunk, secured with chains and thrown into the depths of the ocean so that nobody need ever refer to it again.
As ever, the Bard puts it well
“I’ll break my staff. Bury it certain fathoms in the earth. And deeper than did ever plummet sound. I’ll drown my book”
[Although, hands up anyone who is NOT insanely curious about what was said in paragraph nine. The guess would be that rather than discussing the facts or issues or principles, he said something that was sticking the boot in and personal and offensive to AB. This is what lawyers sometimes call “playing the man and not the ball” – a term borrowed from football, where the intention is not in a tackle to get the football but just to hurt the other person]
On the whole discord about whether father was a “sperm donor who would walk away” or an intention to father a child and play some role in that child’s life, the Judge said this
- There is, of course, one major conflict of fact in this case, namely, whether or not it was agreed that the father would simply be a “sperm donor” and then “walk away” or whether, as the father says, there was a joint intention to conceive a child who, it was anticipated, would have some relationship with both his parents. I can only resolve that conflict on what lawyers call a balance of probability. I am not at all persuaded on a balance of probability that DB did agree, as is alleged, that he would merely be a sperm donor. That does not seem to me to fit either his personality or his personal history. As I have said, his situation was that it had been a source of sadness and regret to him that he had been unable to have a child or children throughout a marriage of some length due to infertility on the part of his wife. It was also a source of the utmost regret and guilt to him that he had never had a proper relationship with his one daughter, L. It seems to me highly unlikely that he would have been willing on the one hand to father a child and on the other hand to completely “walk away”.
- Further, there are a number of facts in the case which do not seem consistent with the notion that, having had intercourse and conceived a child, he would then “walk away”. Indeed, it is agreed that in September 2011 he and the mother went on a camping weekend together in the Yorkshire Dales where the two of them shared a tent. They did not have sexual intercourse on that occasion but nevertheless the circumstances were obviously ones of some intimacy.
- As I have said, after the birth of S the father was permitted to see S quite regularly and amicably. So there was certainly no concept of “walking away” in play for an appreciable period of time after the birth of S. Further, in such texts as are available, nowhere is there an assertion that he had agreed to “walk away”. As I have already said, some of the texts are, indeed, quite affectionate; and even where the mother did ask for some time and space away from him, she did not put that in terms that he had agreed always simply to be a sperm donor and walk away.
- It may be that in this case there was, as so often in these sorts of situations, a lack of clarity and understanding between them. It may very well be that A and C, in the spring and early summer 2011, were looking for a mere “sperm donor” as RS might, indeed, have been. But I cannot accept that when DB had intercourse that night he had, himself, agreed that his role was simply to be that of a sperm donor.
- In any event, as authority of the Court of Appeal makes clear, even somebody who has agreed to be a mere “sperm donor”, unless anonymous, should not necessarily be excluded from the life of the resulting child. However, it is not necessary to wrap up my decision in this case by reference to authority. It is absolutely clear that cases of this kind are highly fact specific. It is absolutely clear that there is only one legal principle in play, namely, that the welfare of the child concerned must be the paramount consideration.
It is clear that feelings were running high on this one, and the Judge makes some very helpful remarks, applicable to other cases about what the role of the Court is in this regard.
- The principal reasons that A and C advance against any contact are these. First, A, in particular, clearly has a very strong view as to parental autonomy, and it is her view that she and C (who also has parental responsibility for S) alone know what is best for their child and that they, and they alone, should decide. Whilst I have some appreciation of that point of view, it is, of course, not the law, and it is precisely because an individual parent, or in this case two mothers, do not have that degree of autonomy that courts in the end do have to decide the outcome of cases such as this.
- Next, they stress that from the outset the agreement was that DB would simply be a sperm donor and walk away. I have already explained that I cannot accept that there was agreement to that effect. It may have been their hope and expectation, but it certainly was not that of DB.
- Next, A in particular refers to the intensity of her feelings now in relation to DB. As I have said, earlier today she used the word “hatred”, and her overall position is that it could not be in the best interests of S to be brought up in a situation of conflict between the adults.
- Allied to that is a similar, but discretely different, point, namely, that in any event she, or they, cannot bring themselves to promote the image of DB as the father and present him in a positive light.
- So their overall position is that this would simply be a situation of such stress and intensity of emotions that they would inevitably impact upon S and be damaging to him.
- I do, of course, appreciate and understand all those arguments. They are often deployed in situations where there is conflict and disagreement as to contact. But the argument and consideration the other way is the real benefits that S may gain throughout his childhood and, indeed, into his adult life from having proper knowledge of, and interaction with, and some relationship with his father.
- Of course, at this moment, when he is aged 20 months and a mere toddler, none of this is immediately apparent. No one could suggest that S is suffering at this moment from the absence of his father from his life. But it is in infancy that the seeds should be laid for slowly developing a relationship in the most natural of ways as the child grows up. The position of the mothers is that S can, of course, see his father when he is older if he wants to do so. But that would not happen in that spontaneous way, at any rate for many years, unless he has grown up with knowledge of, and some relationship with, his father.
The Judge opened his judgment with this, but I have moved it for my purposes to the end
- In a letter written as long ago as 23rd August 2013 the mothers forecast that:
“Unfortunately, it is becoming increasingly clear to ourselves that this awful situation will just have to play its course within the court system.”
That is what has happened and, despite repeated attempts and encouragement on my part and my affording ample time and opportunities in which to do so, the parties have, unfortunately, not been able to narrow their differences and agree an outcome. Nonetheless, it is very clear that the three adults involved in this case are all, if I may say so, very worthy, caring and decent people, and it is a matter of the utmost sadness that there is currently so great a rift between them.
True enough. Sad when three decent people end up in such a situation.
So, three golden lessons to avoid it happening to you / your client
- Make sure you are all on the same page, and have it written down, before embarking on an unorthodox conception
- When you write a statement and you play the man and not the ball, bear in mind that this might cause significant problems in due course, and if it has really inflamed things too much, an offer to remove the offensive remarks is not a bad idea. In fact, just don’t play the man and not the ball. It never works.
- If you think that hell hath no fury like a woman scorned, imagine taking two irate mothers on at once…
Get it in writing, always get it in writing.
Or as Sam Goldwyn didn’t say “A verbal contract isn’t worth the paper it’s written on”