A gay man who fathered a child with a lesbian couple has been ordered to pay 80 per cent of the legal costs they incurred during a contact dispute.
In MG & JG v JF, the couple lived together in the north of England, entering a civil partnership in 2006. By that point ‘MG’ and ‘JG’ had already decided that they wanted a child and so sought a sperm donor. They made contact with ‘JF’, an academic in a same sex relationship who lives in the south of England. The trio began “lengthy discussions”, eventually agreeing that JF would be named on the child’s birth certificate as father, while JG, the older female partner, would be a “legal; step-parent”.
Following artificial insemination, MG fell pregnant and a child, referred to as ‘JFG’, was born in April 2007.
For the first few years of JFG’s life, JF saw his son on a regular basis, both at his home and that of the mothers. The trio travelled to the US with their son twice, on the second occasion to attend the funeral of JF’s mother. However, not long afterwards, the relationship between him, MG and JG ran into increasingly severe problems and he found it harder to arrange visits.
At the High Court sitting in Leeds, Mr Justice Mostyn noted:
“All are agreed that the relationship between the mothers and the father broke down although, inevitably, there is strong disagreement as to why.”
“The mothers say that the father had become increasingly individualistic and demanding about contact; the father says that he was being increasingly marginalised.”
The father sought legal advice and the situation continued to deteriorate, with the trio arguing over a number of issues, including whether or not JFG should be educated at home. JFG himself began to resist seeing his father and contact ceased on the advice of a psychologist. By this point MG and JG had themselves separated. Their civil partnership was dissolved in February this year.
JF took legal action, applying for a contact order, as well as so-called ‘specific issue’ orders, requiring specific action to be taken, in relation to his son’s education and other issues. He also applied for “therapeutic intervention” by a child psychiatrist.
The case went to the High Court. A psychologist assessed the family and recommended “a detailed programme of supervised, facilitated contact to seek to restore the relationship between father and son”. The parties agreed and a detailed consent order was reached setting out the specifics.
Subsequently MG and JG applied to the courts for payment of their legal costs by JF, as both had run up large bills. MG sought £15,252, while JG sought £10,492.
Mr Justice Mostyn noted that their legal team “will not continue to act until arrears of fees are paid and there is an assurance that future fees will be paid. This is perfectly reasonable.”
In his judgement, Mr Justice Mostyn made reference to the fact that both women would have qualified for legal aid if this had not been drastically cut by the Introduction of the Legal Aid, Sentencing and Punishment of Offenders Act on 1 April 2013.
“..at a stroke, 63 years of state funding of cases such as this was swept away. Had that “reform” not taken place both MG and JG would have been entitled…”
The Judge granted the costs order, on the grounds that JF instructed counsel to represent him. If the two women were unable to pay their legal teams and lost representation, the resulting imbalance of power would breach their rights under Articles 6 and 8 of the European Convention Human Rights. These protect the right to a fair trial and family life.
Consequently, he ordered JF to pay 80 per cent of the two women’s claims, along with 80 per cent all future therapeutic work., with the women paying the remainder between them.
The Judge said:
“In my judgment they cannot reasonably or realistically be expected to find more. By contrast, I am satisfied that JF can find, without undue hardship, the share with which I have shouldered him.”
“It could be said that it is grossly unfair that JF should have to pay now £20,596 plus 80% of the future therapeutic costs…But that is where the government has left him. It is a sorry state of affairs.”
Read the judgement here.