A family court judgment published on BAILII and TNA last month exposed prolonged harassment of the parents of a small child who had been conceived by sperm donation – by a man they’d met on social media who they thought had unselfishly offered to help them start their family. Although ‘Joe Donor’ had led them to believe he would take no further part in their lives, he subjected them to a series of court applications and hearings that they described as ‘horror’ and ‘a nightmare’. The judgment is A v B and others [2023] EWFC 333.
‘Joe Donor’ can easily be found boasting in the mainstream media (e.g. ‘YOU’RE KIDDING – I’ve got 180 kids but only met 60 – I’m always ready for more, The Sun, 29 August 2024) that he has fathered 180 children through sperm donation.
This judgment on the outcome of Joe Donor’s applications regarding one child, D, was published online following the request of D’s Cafcass guardian, because of the public interest in warning women of the dangers of unregulated sperm donation. Not only did the judge agree to publish the judgment, he also – extremely unusually – published the real name of the biological father because of the danger he personally poses to people who may fall for his advertising.
You can read about the case in this BBC Wales news article by Gemma Dunstan out today.
We’re going to highlight here some transparency points that arose in this case.
HHJ Jonathan Furness, acting as a Deputy High Court judge, handed down his final judgment in Cardiff in November 2023 but it was not actually published until January 2025. It appears that the delay was caused by the applicant making yet further attempts at appeals, although there may have also been some built-in delay because of the judge’s workload. As the judge himself explains [para 111], not many judgments by circuit judges are published because of the time-consuming task of anonymisation.
In the circumstances, we’re quite surprised that there is no rubric at the head of the judgment explaining what reporting restrictions are in place regarding this hearing that was held in private. We therefore assume that the standard section 12 and section 97 restrictions apply. All of our comments are on information in the judgment.
We’ve never come across a case previously where the guardian took the lead in asking for publication of a judgment but unfortunately because it appeared so much later, the chances of much publicity were lost. Since the retirement of Brian Farmer at the Press Association, we don’t notice journalists delving into BAILII for newsworthy stories as he used to do.
First, a brief outline of the facts and decisions in the case.
Background
Ms B and Ms C were a same-sex couple who wanted to have a child and responded to advertisements by Mr. A offering informal sperm donation i.e. not through a clinic. B became pregnant through C injecting her with the donated sperm. B and C married during the pregnancy although they split up during the court proceedings. They continued to share the care of the child, D. It was accepted by the court that C and D had a mother and child relationship.
Mr. A made a number of applications to court including: a declaration of parentage; for his name to be put on D’s birth certificate; parental responsibility; D’s names to be changed; and for him to have contact with D. The court proceedings had been running for two years and there were further complications along the way relating to A’s immigration status; his making continual appeal applications against interim decisions; his wanting disclosure of medical records; and a number of applications he made for the guardian and two of the judges involved to recuse themselves (withdraw from the proceedings because A said they were biased). At the final hearing, B and C were each represented by a KC and a junior barrister, the guardian by a barrister, while A was a litigant in person.
The judge made a number of fact-finding decisions against A, including that his initial motivation for beginning the proceedings was to support his immigration position to stay in the UK. Ironically, it was said that he was at risk of being arrested on return to the USA for non-payment of child maintenance. The judge set out in some detail the reasons that he did not accept much of A’s evidence, and added that A’s allegations against various people were:
…’ wrapped up in a veneer of seeking to protect the welfare of D but in reality he is a man who seeks to control. Women and children appeared to be almost a commodity to him as he sets about increasing the number of his children around the globe… The impression is of a man who has complete absence of sensitivity or empathy, is wholly self centred and will stop at nothing to obtain what he wants. [para 21]
The judge found B and C to be credible witnesses although both had become exhausted by the stress of the proceedings.
Decisions on the applications
- Application by C for a child arrangements order to recognise the existing arrangements for the care of D and granting C parental responsibility. These orders were made by the judge.
- A’s application for D’s names to be changed – refused.
- A’s application for contact – direct contact refused but an order for annual letterbox contact was made.
- A’s application for parental responsibility – dismissed.
- A’s application for a declaration of parentage – it was not in D’s best interests for the judge to hear this application and it was therefore refused.
- Section 91 ( 14 ) barring order raised by the guardian and supported by B and C – order made effective until D’s 16th birthday. This stops A making fresh court applications regarding D.
- Whether the judgment should be published – discussed below.
Decision on publication of the judgment and naming Mr A
All the parties, except A, asked that the judgment be published on the basis that no-one in D’s family was identified. The judge considered the case law in Re J [2013] EWHC 2694 (Fam), Re S [2004] UKHL 47 and Re AI M [2020] EWHC122 (Fam) in the context of human rights law. Re Al M is the Sheikh of Dubai case, one of the very exceptional cases where the parents in private law family proceedings were identified. The judge also referred to the guidance issued by Sir James Munby back when he was president in 2014, that permission to publish a judgment should always be given when the judge concludes publication would be in the public interest. HHJ Furness said there was a strong public interest in this case as ‘evidenced by the media frenzy which A creates for himself wherever he goes’ [para 110]. The judge also noted that this was a High Court case although he himself, usually sitting as a circuit judge had little time to anonymise and publish his own judgments despite targets now being set. The current guidance on anonymisation and publication can be found here but this wasn’t published until June 2024, some months after this case ended.
HHJ Furness commented that because Cardiff was part of the Reporting Pilot scheme in 2023, if a journalist had been present and asked to report it would have been almost inevitable that a transparency order would have been made and permitted media reporting. He concluded there was no issue in publication itself but he had more to consider regarding publication of A’s name.
Mr. A opposed publication that identified him by his real name or as Joe Donor because this would affect his ability to make applications to spend time with his other children. The judge cited Mrs Justice Lieven in another sperm donor case, James MacDougall v SW and others [2022] EWFC 50, where she had also concluded there was public interest in naming an informal sperm donor who posed a risk. However with regard to Mr. A, the judge also had to take into consideration that he has five children with his surname resident in the UK. Mr A usually refers to himself by his pseudonym in the media but he had identified himself by his real name in an article published in the Times newspaper, ‘Pseudoscience and fascism: the dark side of sperm donation’ , although this is behind a paywall. The judge concluded that A’s opposition to being named had little to do with any concern about any children.
A couple of other points of interest are that the judge included fairly lengthy quotations from his earlier fact-finding judgment and therefore did not need to publish that judgment as well; and that he had worded this judgement to avoid any reference to D’s sex or geographical location. Neither is D’s exact date of birth give.
At Para 121 the judge said:
‘I therefore intend to publish this judgment and to name A as Robert Charles Albon who offers sperm donation under the pseudonym Joe Donor. I’m satisfied that it is in the public interest to do so as he is a man who intends to continue donating sperm and vulnerable women who are interested in such services should fully understand the risks of becoming involved with him. Naming him does infringe his article 8 rights to privacy and family life but he himself has chosen to diminish that protection by engaging with the press in order to advertise his services. Any infringement of those rights is in my judgement legitimate, necessary and proportionate in order to protect the rights and freedoms of others.’
Comment on publication of judgments
It’s regrettable that the judgment took so long to emerge, damping down chances of mainstream media coverage. We found this published judgment in January under BAILII ‘recent decisions’ which we fairly regularly trawl, but within a few weeks A v B & ors will be relegated to decisions that were made more than a year ago. It wouldn’t have even come up as ‘new’ on TNA but just been slotted into 2023. It’s clear from the header to the judgment that further delaying tactics by Mr A were anticipated, but probably little that could be done in the meantime, despite the concerns that had been expressed about his continuing activities. While we haven’t undertaken an extensive search online, we can see that the Sun piece mentioned above was published only six months ago. It’s therefore some reassurance to see the new article this week by BBC Wales and we hope to see more of this type of accurate reporting from the family courts as the transparency reforms take effect.
We have a small favour to ask!
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