The peculiar set of facts of Re M 2013, which hinged on whether a child had been conceived by artificial insemination, or in the traditional way, and if the former, whether the husband of the mother had consented. Also, we touch on the issue of anonymity.
The case is here
We have three players – M, who is the mother of the child, F who provided the gametes for the child’s conception, and H, the husband of the mother. It is fairly to establish that M is the child’s legal mother, but establishing who is the child’s legal father is a bit more difficult.
In essence, F was a man who was a sperm donor on a regular basis. Sometimes he did this by means of artificial insemination (AI), and sometimes by natural intercourse (NI). It was factually agreed that F had been contacted by M and asked to assist with her fertility issue, and that some episodes of NI took place. The issues between the parties were these :-
1. Was the event which led to the conception of the child, AI or NI ?
2. Was the Husband in agreement with this?
Why is that relevant? The Court are clearly about to plunge into very delicate and sensitive matters and things are liable to get (excuse the phrase in this context) sticky.
Well, it is because when the Government decided to legislate and regulate the whole business of insemination done outside of the confines of a relationship or even one night stand, they brought into being the Human Fertilisation and Embryology Act 2008 (HFEA from now on)
Section 35 of that Act, provides (in very clinical language) that if a woman is married, her husband shall be the legal father of a child produced by artificial insemination with another man’s gametes PROVIDED that he consented to that insemination taking place.
If he did not consent, he is not the child’s legal father. And the donor of the gametes would only be the child’s legal father if he had provided the mother with a notice saying that he consents to be treated as the father of the child AND M has provided him with a notice that she agrees to that. So, a child conceived by AI without the consent of the Husband (H) or biological donor of the gametes (F) agreeing to be treated as the Father would have no legal father.
With me so far?
IF the child was conceived by NI, then the male participant would be the child’s legal father (but would not automatically acquire parental responsibility, unless he was registered on the birth certificate)
In this case, which was heard by Mr Justice Peter Jackson – who is rapidly becoming the “go-to” guy on difficult AI cases, the Mother was claiming that the conception had taken place as a result of NI, and that therefore F was the biological AND legal father. She was also seeking orders for financial support for the child from F, under Schedule One of the Children Act 1989.
It would be fair to say that the role of the Court became less one of determining which of F or M was telling the truth, but which of them, after sifting through the multiple lies that each had told, was the more credible in their overall account. Given that F said the conception was by AI, and M said by NI, one of them must have been telling the truth about the circumstances, and it was, the Judge said, unfortunate that each of them had told so many lies in the proceedings.
These are the lies the Court found that M had told. (The names that I give are names that are within the anonymised transcript, and do not relate to the real names of M, F or H, or the child)
· Examples of Ms M’s deceptions are these:
(1) Her opening e-mail to Mr F stated that she was healthy (she has a medical condition) and that Mr H was excited about donor insemination (he was against it but she hoped to bring him round).
(2) She told Mr F that she had miscarried his child, when she had in fact had a termination.
(3) Her ‘misdirected’ email to a girlfriend, deliberately sent to Mr F, is the work of a fluent fabricator.
(4) Her use of the ‘Andy Hitchings’ name and e-mail account shows a capacity for determined and malevolent action to achieve her ends, and also demonstrates that she will use an alias when it suits her.
(5) I find that she wrote those ‘Andy Hitchings’ emails that she denies writing. Her criterion for accepting or denying authorship was no more than an assessment of the damage that the truth would do to her case.
(6) I find that she probably wrote the ‘Nicole White’ and ‘Edward Mason’ e-mails for the reasons given in Mr F’s opening submissions. She has had two years to prove that these people exist in the face of Mr F’s allegation that they do not, but she has made no attempt to do so.
(7) If I am wrong about point (6), the only plausible alternative is that Ms M conspired with one or more other persons unknown to pursue her campaign against Mr F.
(8) Ms M’s reason for keeping a transcribed log of text messages was that it was as a record for the child. This is unconvincing; a more likely explanation is that she kept the information as a form of insurance.
· I found Ms M to be an unimpressive witness in relation to the above matters and to show no sign of discomfort when caught in an obvious lie. She freely stated that she is motivated by her own need for Mr F to be punished.
And then these are the lies that F told
· Examples of Mr F’s deceptions are these:
(1) His calculating betrayal of his girlfriends, to whom he made promises that he was no longer engaging in sperm donation, and his unabashed dishonesty in concealing his overall activities from recipients with whom he entered into relationships.
(2) His casual untruthfulness on his website profiles about the number of children that he had fathered, lies that would only work to his benefit by disguising a level of hyperactivity that might have deterred responsible approaches.
(3) His deliberately misleading first statement, in which he trumpets the rules of the website as being ‘AI-only’ in an effort to create the impression that this was the case here, when in fact he had been engaging in and advertising sexual activity through the website for years.
(4) His untruthful evidence in these proceedings and to the CSA that he had not had sexual intercourse with Ms M until December 2010 or January 2011, when on his own case it occurred in October 2010.
(5) His gratuitously inaccurate statement that sexual intercourse with Ms M began ‘at her instigation’.
(6) His denial of certain text messages to and from Ms M, taking the same selective tactical approach as she has done.
· As to the last matter, the log of text messages was produced by Ms M in an unsatisfactory form (allegedly transcribed in edited form from notes that no longer exist of texts that have been ‘lost’). Having exercised due caution in the light of Ms M’s general dishonesty, I nevertheless find that the record can be viewed as a reasonably reliable journal of this form of communication between the couple. The messages have the spontaneous and often inconsequential flavour of real life, are congruent with the content of the contemporaneous emails, and are in my view beyond even Ms M’s powers of fabrication. Moreover, had she wanted to invent evidence, she would probably have inserted some direct and unambiguous reference to sexual activity, but there is none. Many texts are accepted by Mr F, but only where they do him no damage.
· Mr F’s evidence was clearly given, but he had clearly taken the strategic decision to tell the truth where possible and to lie where necessary. He at least conveyed some impression that he would have been more comfortable telling the truth if circumstances had not prevented it.
The Judge then had to weigh up, which of them on balance was telling the truth on the central issue of conception, taking into account that the burden of proof was upon M as the applicant
· On the central question of the manner of this child’s conception, I have reached the clear conclusion that Ms M’s evidence is greatly to be preferred to that of Mr F. My reasons are these:
(1) Her account of the sexual activity is detailed and has been consistently maintained. It was unshaken during her evidence.
(2) As a straw in the wind, her answer to an unexpected question about what happened to the AI equipment after the first meeting (which was that she kept bringing but not using it) had the ring of truth.
(3) Allowing for the difficulty faced by any witness in breathing life into a denial, Mr F’s evidence on the issue lacked any real conviction.
(4) His new-found certainty that the first occasion of sex was in late October is inconsistent with his previous accounts and best explained by his having decided to sail as close to the wind as he could in terms of dates.
(5) If the first occasion of sex occurred in October it would have been at one address: if it was in December or January, it would have been at another, Mr F having moved in the meantime. A mistake about dates might be explained: a mistake about venue cannot be accounted for so easily.
(6) My findings about Mr F’s unreliability as a witness are of course relevant.
(7) While of no great importance, it would be a curiosity that the child was conceived by AI at a meeting that was the immediate predecessor of his parents’ very first sexual activity.
(8) The coy and flirtatious tone of their emails and texts from the start suggests that the couple’s relationship had swiftly progressed far beyond AI. The approach seems to have been to communicate in way that was not explicit, chiming with the wish to keep the affair hidden from their partners. Of interest, the tone of the texts and emails is no different before and after October 2010.
(9) I attach no real significance to the use of the term ‘donor’ by either parent when it is clear that this was used interchangeably in their minds for AI and NI. As Mr F put it, ‘I call it donation by sex or receptacle’.
(10) I reject Mr F’s case that a simple friendship and closeness developed between himself and Ms M arising from the intimate nature of AI. The sheer amount of time the couple spent together in a variety of private places from April 2010 onwards is a strong indicator that they were meeting for more than repeated AI.
(11) Mr H believed from an early stage that his wife was having an affair, and I believe that he had good grounds for thinking so.
(12) On the evidence, Mr F did not commonly engage in extended continuous asexual relationships with the women he met through the website. He has an unmistakable track record of inveigling or encouraging recipients into engaging in sexual activity with him from the very first meeting. Ms M’s account of Mr F making a pass at her during the first meeting is consistent with descriptions given by others. Of note, Mr F accepted that he had given her the option of AI or NI within minutes of their first meeting, which was highly inappropriate when she was a stranger who had come for AI.
(13) I accept that Mr F first became involved in licensed donation altruistically and even now, I do not discount a residual element of altruism in his make-up or forget that there are many much-wanted children alive today as a result of his efforts. However, I am clear that in relation to his website activity his mainspring has been to meet his own needs, at least at a sexual level. This is seen by his behaviour in 2007, when he advertised himself in graphic terms as willing to participate in a ‘breeding party’, i.e. a male-dominated orgy designed to get a woman pregnant, though there is no suggestion that he actually took part in such activity. Likewise, he referred in evidence to an occasion when he engaged in sexual activity with both members of a lesbian pair who had approached him via the website.
(14) The fact that Mr F is bound in his professional life by a clear code of ethics makes the risks he was taking the more surprising. His prolific sexual activity with recipients amounted to a brazen flouting of the rules of the website, such as they were. In one relevant period of 2-3 months alone, he was on his own account having sex with three women and providing AI to two others. Most of these contacts had to be kept secret from the other women involved. The sheer logistical challenge alongside his professional life will have been a burden that he would have been likely to have laid down if he had not been driven on by some degree of compulsion. He even kept up and refreshed a posting on a different website, from which he never received any custom over a period of years, and despite the volume of applications the main website was reliably producing.
(15) I reject Mr F’s case that Ms M main motivation is financial, but accept that much of her behaviour is explained by a desire to damage him in any way she can as a way of getting redress for his deeds and his lies.
Thus finding that F was the biological and legal parent of the child, the child having been conceived by natural intercourse.
Where things get really rich, was the application for costs
Ms M seeks an order that Mr F should pay her costs, while Mr H seeks an order that Mr F should pay his costs on an indemnity basis. Mr H’s costs, it will be recalled, come to £13,000 and Ms M’s to £81,000, of which £61,000 is publicly funded.
Well, I see some merit in H asking for it, but after those findings about the pack of lies that M told, asking for a costs order required some bravery. It wasn’t successful.
The issue of anonymity was touched upon, and it is relevant in view of the current debate and the last blog piece that I wrote. Underlining here is mine.
· Prohibited steps application Mr F seeks an order in these terms:
1. No party may, without the permission of the court, disclose to any person other than their respective legal advisors any of the evidence, oral or written, which has been adduced during these proceedings.
2. No party may disclose to any person other than their respective legal advisors, close friends and family members, or medical professionals treating either themselves or the child any information relating to the circumstances of the conception of the child.
3. For the avoidance of doubt, paragraphs 1 and 2 of this order prohibit disclosure of any information covered by those paragraphs in any of the following ways:
a. By email to any person other than those included in paragraph 1 of this order;
b. By posting the information on any website or internet forum;
c. By publishing the information via Twitter, Facebook or any other social media;
d. By disclosing any of the information to any representative of the Press.
4. Other than specifically provided for in this order, any disclosure which would otherwise have been permitted by Family Procedure Rules 2010, r.12.73 or 12.75 is prohibited unless the party wishing to make such disclosure has obtained the permission of the court.
· Mr F seeks this order to prevent what is described as prurient interest in the circumstances of the child’s conception. He points to the findings about Ms M’s past behaviour in relation to third parties as heightening this risk. He is anxious to protect his personal position, that of the child and that of third parties, including other children fathered by him. He fears that the financial proceedings may prompt Ms M to renew her public campaign against him.
· Ms M, who initially appeared attracted by the idea of such an order, now opposes the application. She considers that she should be free to discuss such information or desist from doing so as she sees fit in so far as is otherwise permitted by law.
· FPR 2010 r.12.73 and r.12.75 protect information arising from the proceedings, either by way of written or oral evidence, or by description of what occurred in court, but at the same time permit disclosure of information relating to the proceedings in defined circumstances, which do not include communication to the public at large. However, in the absence of a specific order, there is nothing to prevent anyone talking privately or publicly about matters that do not originate from within the proceedings: the mere fact that information arising independent of the proceedings is then referred to within the proceedings does not mean that it cannot continue to be spoken of.
· In this case, Mr F applies for greater restrictions than those imposed by the rules. In balancing the interests that arise under Articles 8 and 10, I am clear that this is not a case in which it would be appropriate for the court to make an order of this kind. Looking at the matter from the point of view of the child, I doubt that the sort of transient publicity that might follow either of the parties speaking publicly would have any real effect on his welfare or of other children. This is not an encouragement to anyone, and in particular Ms M, to go to the press. On the contrary, all parties would no doubt be wise to desist from washing dirty linen in public, but that is a matter for them, and not for the court to regulate in the circumstances of this case. I am not influenced by Ms M’s change of stance: had the parties been united in the application, I would still have refused it.
And thus the judgment is published, with names anonymised, with the standard rubric (see the last blog post) about anyone wishing to make use of the judgment having to do so on the basis that no information leading to the identification of the parties will be provided.
I know that some of my readers, and some of the media, and population at large, take the view that anonymising the judgments is a step too far, and that the names should just be made public save for the most drastic of circumstances.
But imagine, if you will, that this judgment, which is up online and can be viewed by anyone who looks for it, named the child, F, M and H, giving their real names. Anyone in the child’s social circle could read it now or in the future, and know the whole grisly story of the conception and the lies , manipulation and deception that both of his biological parents were involved in. And could tell the child that , or tease or bully the child with that information. Imagine you are the child, and ten years hence you type your name into Google, and THIS judgment is what comes up. And you see your mother’s name, and the name of her husband, who you thought was your father?
This is of course, nowhere near the worst things that are contained within family court judgments; and it is for that reason that I would support publication of anonymised judgments (hopefully with some clear guidance on what can or can’t be done with them) but not for the routine naming of those involved.