Known donor and co-parenting disputes

child in windowDisputes about the donor or co-parent's role

If your child was born as a result of a known donation or co-parenting arrangement, then particular issues may arise if there is a dispute between you.  Typically, disputes concern how much of a role the donor or father (and his partner, if he has one) should play in the child's life.  That may in practice relate to the frequency or nature of contact (whether your child visits or spends time with him, and where this happens) but also how decision-making is managed.  Disputes which happen quickly after the birth usually involve questions about the status of the biological father and whether he should be treated as a sperm donor or a parent.  Disputes which happen further down the line often involve how contact has progressed over time, and particular parenting decisions.

As with other disputes about arrangements for children, mediation should be considered as a first step.  If you can't reach agreement (either yourselves, or with the help of a mediator or a solicitor), the type of court application which can be made will depend on the circumstances:

Known donor and co-parenting disputes require a very different approach to standard disputes between separated parents, and the presentation of the case, where the application is made and ensuring that the specialist case law is appropriately considered from the outset, can be critical.  We specialise in this area of law.

As with any children dispute, the court's paramount consideration is the child's best interests. The court might take into account any written donor or co-parenting agreement, but will weigh this against the history of what has happened, the connections each adult has with the child, and what best promotes the child's welfare going forward. This remains a new and emerging area of law, in which the court is still exploring its thinking.

Cases outside the HFE Act 2008 (where the donor was the legal father):
In Re D (lesbian mothers and known father) 2006, a known donor to a lesbian couple was given parental responsibility, but on a restricted (and ultimately agreed) basis. It was felt that his status should be acknowledged, but that the nuclear family unit (of the two lesbian mothers) should be protected from interference.

In Re B (role of biological father) 2007, the biological father was the non-birth mother's brother, and he applied to court seeking a more significant role.  He was denied parental responsibility but given 'identity contact' with the child four times per year.

In Re P and L (2011), there was a long and protracted dispute between co-parents, the gay fathers wanting a greater role than the lesbian mothers accepted. The fathers were ultimately acknowledged to be 'secondary parents' and given regular contact. The court also said that any agreement between the parties (although nothing was put in writing in this case) should be given weight.

In the Court of Appeal Case of A v B and C (2012), the court allowed a biological father to see his son regularly, even though he had agreed with the child's lesbian mothers at the outset that he would have no involvement (again there was no written agreement). The court rejected the concept of primary and secondary parents, saying that this risked demeaning the important role a known father could offer, and said that the only principle was that child welfare was paramount.

Cases under the HFE Act 2008 framework (where the donor is not the legal father):
Re G and Re Z (2013) involved two lesbian parent couples who were each civil partners and so joint legal parents named on their children's birth certificates. An application was made by their known sperm donors (whose legal status as parents was excluded by the law) for regular father-style contact. The court gave the donors leave to make an application (because the contact they had already been given in the early months of the children's lives gave them sufficient 'connection') but said that it did not follow that rights of contact would inevitably be given, and an expectation of alternate weekend contact was 'wholly unrealistic'. We represented the mothers in this landmark case.

Re X (No.2) (2015) was a similar case involving lesbian civil partners who were both the legal parents of a little girl and resisting an application for contact from her biological father.  The donor was given leave to bring an application, but ultimately the court decided that it was in the child's best interests for him to have limited and indirect contact.

Financial disputes

Disputes also sometimes arise over whether a known donor is financially responsible for a child.  Whether a known donor is financially responsible depends solely on whether he is the child's legal father.  It is often a surprise for a donor to learn that no account will be taken of any agreement (written or verbal) that he should be treated as a donor.  It is also irrelevant whether the donor has had involvement with the child.

If he is a legal parent, an application can be made:

  • to the Child Maintenance Service for regular child support
  • to the family court for an order under Schedule 1 of the Children Act 1989 (which might include top-up maintenance or a capital or property award).

ipad and coffee cupThere have been a number of high-profile cases involving sperm donors pursued for child support. Financial claims against donors can involve complex legal proceedings, which require not only a clear understanding of child maintenance law, but also a detailed understanding of the law on donation and parentage.

In 2007, fireman Andy Bathie was pursued for child support by the Child Support Agency, in respect of two children he had helped a lesbian couple to conceive.  The parents had separated, and the birth mother (unable to pursue her former partner for child support) made an application against the children's biological father.

Similarly in 2012, Mark Langridge was pursued by the Child Support Agency for maintenance payments for two children, twelve years after donating his sperm in a private arrangement to a lesbian mother.

In 2013, in the case of M v F and H a married woman had met a sperm donor via an Internet matching site and conceived a child. She pursued the donor for child support, and there was a dispute over whether conception took place by artificial insemination or 'natural insemination'. After a fact-finding hearing, the court found that conception had taken place through intercourse and held the donor liable for child support and substantial legal costs.

Find out more about financial provision for children.

Have we answered your question? Would you like advice on your personal circumstances?

Email us at hello@ngalaw.co.uk or call on 020 3701 5915 and we will explain how we can help.