Contact between sperm donor and son allowed to proceed

family life

The case concerned a Child Arrangements Order made in June last year. A particular paragraph within this order allowed the sperm donor to a same sex couple, referred to as ‘Brian’ – to visit their four year-old son several times a year. The donor’s parents would also be entitled to visit the boy twice a year with him.

The same sex couple, who are in a civil partnership, claimed this constituted “an unwarranted interference with their freedom to parent Aidan as they think best.”

Referred to as ‘Jane’ and ‘Carol’, the couple have two children, both born to Jane via artificial insemination. The donors in each case were different. The biological father of their older son, Harry, was a friend of a friend, who agreed to play no part in the child’s life. But the biological father of four year-old ‘Aiden’was a work colleague of Carol and originally a friend of both her and Jane.

He agreed to donate but the trio never explicitly agreed the basis on which he would he do so. He believed that his identity as the biological father would be made known to the child and that he would be allowed to see the child on a regular basis. Jane and Carol, however, disputed this, saying they had believed he would only see Aiden on a casual basis.

In the Court of Appeal, Lord Justice Peter Jackson explained:

“Aidan was born at the end of 2012, and by operation of law Jane and Carol are his only legal parents. For the next three years, Brian saw Aidan weekly or fortnightly by agreement. He did not take on a parental role, but the judge found that he was a familiar figure in Aidan’s life. His parents met Jane and Carol, both before and after the birth, attending family events together some eight or nine times over the course of three years.”

Then in 2013, Jane and Carol broke up. Carol began a new relationship with a man and Jane with a woman. Nevertheless they continued in their role in as parents to Aiden, said Lord Justice Peter Jackson.

“As time went on, and particularly after the parents separated, they began to find Brian’s requests to spend time with Aidan burdensome and troubling, and at the end of 2015 they started to impose boundaries. Relationships then became strained and there was then a period of some 18 months when there was no contact between Brian (or his parents) and Aidan. Contact with Brian restarted in May 2017, but that did not include his parents.”

In April 2016 Brian applied for a child arrangements order allowing him to see Aiden. Ultimately he was successful but only after a protracted series of hearings.

At the beginning of these, the two sides had been firmly at loggerheads, with Jane and Carol offering no contact and Brian seeking independent weekly visits. But eventually both parties changed their stance, thanks to advice from the legal guardian appointed to Aiden. Brian modified his application to contact once a month while Jane and Carol countered with four times a year. Eventually, the guardian proposed seven meetings a year, during which Aiden would not be encouraged to see Brian as a parental figure but instead he would given “the opportunity to have some meaningful level of contact with his donor that assists him in understanding his identity in a very low key way.”

Jane and Carol were firmly opposed to the idea of Brian’s parents attending any of the visits and appealed the child arrangements order on two grounds: that the biological grandparents had no real legal or psychological relationship to the child and had not sought or been given permission to apply for any order. In addition, insisted the couple’s barrister, the Judge had:

“…failed to carry out [a] sufficient analysis of Aidan’s best interests before making her order. She says that the judge did no more than identify that there would be benefit to Aidan from seeing Brian’s parents. She did not go on to consider and balance up the competing factors, such as the slender relationship they had with Aidan, the length of time since he had seen them, the possibility of confusion in introducing yet another set of grandparental figures, the parents’ strong opposition to an unnecessary extension of identity contact, and the fact that Brian’s parents had not (and quite possibly would not have) obtained permission to make an application themselves.”

Mr Justice Peter Jackson was unconvinced and rejected both grounds, saying that the first argument was “wrong in principle” and would introduce unnecessary complexity. In relation to the second ground, he concluded:

“I have some sympathy with the parents’ complaint in this respect. In a case of this sensitivity, the continuing involvement of Brian’s parents was an issue that deserved its own separate analysis, not least because the parents opposed their involvement (but not Brian’s), but also because Brian’s parents could not be said to be essential for the purposes of identity contact and because of the issue of possible confusion. The judge should, as [barrister] Ms Fottrell conceded, have gone further than to adopt the Guardian’s reasoning. She should have set out her own reasoning for her decision and dealt with the opposing arguments, something that she could no doubt have done quite briefly.”

However, he continued:

“…the order that the judge made was one that she was plainly entitled to make on the evidence before her.”

Read Re G (A Child) here.

Photo by melfoody via Flickr under a Creative Commons licence

Stowe Family Law Web Team

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