England and Wales Family Court Decisions (High Court Judges)

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URL: http://www.bailii.org/ew/cases/EWFC/HCJ/2022/50.html
Cite as: [2023] 1 FCR 372, [2022] EWFC 50, [2023] 1 FLR 231

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Neutral Citation Number: [2022] EWFC 50

Case No: DE21P07020 / DE21P07046 / SE21P71590

IN THE FAMILY COURT

SITTING AT DERBY

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 24/05/2022

Before :

MRS JUSTICE LIEVEN

- - - - - - - - - - - - - - - - - - - - -

Between :

Case No: DE21P07020

JAMES MACDOUGALL

Applicant

and

First Respondent

and

THE CHILDREN

(by their Children’s Guardian)

Second and Third Respondents

Case No: DE21P07046

JAMES MACDOUGALL

Applicant

and

First Respondent

and

THE CHILD

(by their Children’s Guardian)

Second Respondent

Case No: SE21P71590

Applicant

and

JAMES MACDOUGALL

First Respondent

and

THE CHILD

(by their Children’s Guardian)

Second Respondent

- - - - - - - - - - - - - - - - - - - - -

Ms Lorna Robertson (instructed by Family Law Group) for James MacDougall

Ms Bethany Armitage (instructed by Bhatia Best) for SW and EG

Ms Jasmine Harrison (instructed by Howells LLP) for KE

Ms Carolyn Jones (instructed by Cartwright King Solicitors) for the Children

Hearing dates: 12 April 2022

- - - - - - - - - - - - - - - - - - - - -

Judgment Approved

This judgment was handed down by the Judge remotely by circulation to the parties’ representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10.30am on 24 May 2022

The judge hereby gives leave for it to be reported.

Mrs Justice Lieven DBE :

I have before me three linked cases, all concerning children whose biological father is James MacDougall (‘JM’) who acted as sperm donor in the conception of the children. In the first two cases (‘SW’ and ‘EG’) JM has applied for parental responsibility orders and child arrangements orders (‘CAO’) for him to spend time with the children concerned. In the third case, the mother (‘KE’) has applied to vary an existing CAO and for a non-molestation order, and JM has applied for enforcement of the existing CAO. I decided to adjourn the latter case, although varying the existing CAO. KE’s case has a number of features quite distinct from that of SW and EG, in particular that the child (‘B’) has had contact with JM over a period, recognises him as his father, and that there are court orders in place granting JM contact. Most importantly, B has recently presented with unexplained bruises on three occasions, and I have ordered a s.37 report to be drawn up by Sheffield CC. For those reasons I adjourned proceedings concerning B.

JM was represented by Ms Lorna Robertson, SW and EG were represented by Ms Bethany Armitage, KE was represented by Ms Jasmine Harrison and the Guardian was represented by Ms Carolyn Jones. I am very grateful to all of them for their assistance in the case.

Issues

In this judgment I deal with SW’s two children, R aged 3 and P aged 2, and EG’s child, N, aged 1.

The following applications arise pursuant to section 4 and 8 Children Act 1989:

a. JM’s applications for a Parental Responsibility Order (‘PRO’) in respect of each child;

b. JM’s application for a CAO order and to spend time with each child;

c. The Guardian’s application that the Court should make an order under s.91(14) Children Act 1989 to prevent JM making further applications for a period of three years without the permission of the Court;

d. Whether the Court should publish JM’s name in the judgment.

The Facts

In the last four years JM has acted as a sperm donor through private arrangements in a large number of cases. He told the court that he was the father of 15 children, all aged between nearly four and a few months old. Four of those children are concerned in the proceedings before me. At the end of the hearing Ms Robertson produced for the Court and for the Guardian a list of the children of whom JM was the biological father. The most recent was born in February 2022.

JM is 37 years old. He suffers from Fragile X syndrome, a genetic condition that causes a range of developmental problems including learning difficulties and cognitive impairment. Fragile X is an inheritable condition. JM placed an advert as a potential sperm donor on a social media page for lesbian women seeking sperm donors, which is how he made contact with the mothers in this case. He says that he first acted as a sperm donor to help a friend.

EG (the mother of N) is 26, SW (the mother of R and P) is 25 and KE (the mother of B) is 24. They were all therefore in their early 20s when they first came into contact with JM. All the mothers are, or have been, in lesbian relationships.

SW and her then partner EG were keen to have a baby and made contact with JM via the social media page. When JM and SW agreed for him to act as a sperm donor, SW, EG and JM signed a written agreement given to them by JM. This agreement was provided to JM by a friend, who he says is a lawyer. The agreement is a closely spaced three page document in highly legalistic language which is difficult to read even for a lawyer. It does state clearly on page one that JM will have no rights over the child and no right to contact with the child.

On page 3 of the agreement it is recorded that JM has Fragile X syndrome, however there is no explanation of what this means. SW said that she has difficulty reading, which was clear from her oral evidence. She said that she did not read that far into the agreement and therefore did not read the part about Fragile X. EG said that she did read more of the agreement but either did not see or did not appreciate the significance of the reference to Fragile X Syndrome.

R was born in October 2018. About two weeks after the birth, SW contacted JM and asked if he would like to see the baby, which he then did. By about February 2019 SW and EG’s relationship was in difficulty and SW again contacted JM to ask if he wanted to see R. There is a dispute over how often JM saw R over the next 16 months and the terms of that contact.

SW said she suggested contact to JM because she wanted him to agree that EG would have full parental rights and she thought if JM had contact he was more likely to agree to that. It appeared from both her and EG’s evidence that they had an extremely confused understanding about the law on parental rights over a child in this situation and believed that somehow JM could “give” EG his rights.

Whatever the confused legal understanding, in my view, although this might have been part of the motivation for initiating contact, the dates of that contact, which continue past the date SW and EG had unequivocally split up, indicate that SW was also suggesting contact for her own reasons. I will return to this issue below.

JM says he saw R regularly, initially about once a month and then by summer 2019 about once a week. He says that he would either see her with SW or EG, or he would take her round to his parents’ house where he lived. His mother, Mrs M, who gave evidence, said that R came round regularly through this period. By October, R was staying overnight with JM at his parents’ house. I have seen a series of text messages which show that R stayed overnight with JM on at least seven occasions, for a total of about 10 nights.

There are a number of texts which indicate that SW was asking JM for money, which he was giving her. JM says that in total he gave SW about £7000 which he expected to be repaid. SW accepted in cross examination that JM had given her some money but denied it was anything like £7000 and said she had repaid some of the money.

In early 2020 SW and her new partner JC decided that they wanted to have another child and asked JM to be the sperm donor. He says that he agreed, but this time on the basis that he would have contact with the child. SW denies this, however there is no written agreement in respect of this pregnancy.

SW became pregnant in early 2020. According to JM he was regularly going round to SW’s house and during the first lockdown he lived there for some of the time between March and June 2020. During this period he necessarily had considerable contact with R. He says that SW told him that she had aborted the baby. She denies this and said that JM knew she continued to be pregnant.

At a date in June, but it is not clear precisely when, SW asked JM to leave. She says that this was because she became concerned about his behaviour. She referred to JM making sexual comments to her, suggesting she leave JC for him, and rubbing his erection against her. JM denies all these allegations. SW also says she found JM showering with R on at least two occasions, which she considered to be totally inappropriate. Whatever the precise detail of what happened during this period it is clear that any friendship between SW and JM completely broke down. She says that his behaviour was very weird, and she became very uncomfortable with him being around.

JM did agree to leave the property, however there was a serious incident on 25 June 2020 at SW’s house. According to SW this was the same day that JM had left the property and he returned later the same day. JM’s version of events is that he went round to SW’s house to retrieve some of his possessions including two mobile phones which he had given to SW. He says that SW had been exploiting him for money and he had lent or given her about £7000, which she was refusing to pay back.

When he went round to the house, he says that SW came out and swore at him. She then grabbed him and pushed him into the house. SW, JC and a male friend assaulted JM, and he denies assaulting or harming any of them. He says that he suspects that the injuries on SW were as a result of “playfighting” between SW and JC.

SW’s version of this incident is very different. She says that JM came round to the house and banged on the door and the windows. She was inside with JC and two friends and a number of young children. She went out to speak to him and he then forced his way into the house. He attacked SW and left her with bruises on her throat and back. A friend of SW who was in the house with his wife and children then physically restrained JM. SW called the police and JM was arrested. On both versions there were a number of young children in the house, including R. There are police photos that show bruising on SW’s neck and back and a bruise on JC’s leg and hands.

JM has had no contact with R since that date. He has never met P, who was born in December 2020. R is now 3 years old. There are significant concerns about her development as she is still not verbal and is behaviourally challenging. R has been referred to the Speech and Language Service but is awaiting an appointment.

EG was SW’s partner when L was born. When she and SW split up, she formed a new relationship and they decided to have a baby and asked JM to be the sperm donor. EG has a medical condition which makes it difficult for her to become pregnant. She had previously tried to conceive with a different donor.

There was no written agreement. EG said that she asked JM for a written agreement that would confirm that he would have no contact with the child. She said that when they discussed him being a sperm donor for her, she was absolutely clear that he would have no contact with the baby, which he accepted. However, when she asked him for a written agreement, he kept making excuses such as the printer had run out of ink. She said that she was so desperate to have a baby that she went ahead with JM as the donor even though there was no written agreement.

There was an issue during the pregnancy when EG’s midwife said she needed to give the blood group of the father. EG said JM initially refused to co-operate, but JM strenuously denied this. It is not necessary that I make any finding on this matter.

N was born in January 2021. JM has had no contact with N.

On 29 March 2021 JM applied for a CAO and PRO in respect of R and P. On 2 June 2021 he made the same applications in respect of N.

The position in respect of KE is rather different. I will not set this out in any detail given that I cannot reach any conclusions on the facts of her case or make final orders at this stage of the proceedings. However, the undisputed evidence is of some relevance to the determination in the other two cases. KE contacted JM as a sperm donor via the social media page. There was no written agreement between KE and JM. B was born in July 2018. In September 2018 JM and KE commenced a relationship. JM had contact with B throughout 2019.

On 27 February 2019 KE applied for a non-molestation order against JM. On 22 March DJ Daniel at Sheffield Family Court made the order, forbidding JM to contact KE directly or indirectly save for the purposes of arranging for him spending time with B. JM did not contest the making of the order on the basis of the allegations not being accepted. The District Judge made no findings in respect of the allegations.

On 30 October 2019 JM applied for a CAO for him to have contact with B and a PRO. On 12 March 2021 DJ Heppel made a CAO giving JM contact once per week, and overnight contact every second weekend, half the holidays and alternate Christmas. The order also granted JM parental responsibility.

KE alleges that since March 2021 JM has been harassing, controlling and pestering her, and has made the application to vary the CAO. KE’s position has changed in respect of contact at various points. In January 2022 KE suspended contact between JM and B. JM alleges that KE has breached the order and has applied for the enforcement of the CAO.

On 6 December 2021 KE made a fresh application for a non-molestation order. An order was made without notice on 7 December, and a return date is set for a two day hearing. However, the matter was then listed together with the other two cases before me.

It is relevant that JM’s contact with B has been observed by Mr Donuhue, who was the Guardian in that case. He found the contact was positive and had no concerns about JM’s behaviour. The current Guardian, Ms Vine, has not observed JM with any of the children.

On 24 January 2022 B’s case was reopened to Sheffield Social Care as KE informed the social worker that B had unexplained bruises when he returned from contact with JM. Neither KE or JM could not explain the bruises. B had a medical examination and one of the bruises, to the inner ear, was thought to be non-accidental. Sheffield commenced a s.47 investigation, which so far has held that the risks were substantiated but B was not deemed at risk of significant harm. On 4 April KE contacted Sheffield again to tell them B had returned from contact with two small bruises on the small of his back. Again, the child protection medical concluded these were not accidental.

Given that Sheffield Children’s Services are currently considering the matter, I decided to adjourn KE’s case until the relevant report had been drawn up.

The Law

The basic principles set out in the Children Act 1989 are extremely well known. In any decision about the upbringing of the child, the paramount consideration for the Court is the child’s welfare (s1(1)).

There is a presumption that unless the contrary is shown, the involvement of a parent in the life of a child will further the child’s welfare (s.1(2A)).

In considering the child’s welfare, the Court will have regard to the welfare checklist in s.1(3).

Parental Responsibility Orders and contact issues

By s.4(1) the Court can grant a PRO. I summarised the law on making such orders in FC v MC [2021] EWHC 154 (Fam) at [19] - [26]:

“19. There are a very large number of cases where the courts have addressed the question of in what circumstances an applicant should be granted parental responsibility for a child when they do not have that status automatically. Many of these are referred to in the very helpful judgment of Black LJ (as she then was) in Re G (Children) [2014] EWCA Civ 336

20. The starting point is as set out in Re H (Minors) (Local Authority: Parental Rights (No 3) [1991] Fam 151 where the Court of Appeal highlighted three particular features from amongst the factors the court should take into account when considering an application by a father for parental responsibility. These were the degree of commitment the father had shown to the child; the degree of attachment between them; and the motivation behind the father's application. In my view, these are the three touchstone issues that the court has to address when deciding parental responsibility, and there is no difference in this regard between a father and a woman who argues she stands in the position of a second female parent.

21. A number of judges have emphasised the status that parental responsibility confers, see as but one example, Ryder LJ in Re M (Parental Responsibility Order) [2013] EWCA Civ 969 :

"27. I return now to the question of status. The status conferred by parental responsibility is an important legal recognition of the delicate balance between rights, duties, powers, responsibilities and authority that are the components of family and private life. It is integral to the concept of parental responsibility. It is not, however, a separate 'stand alone' factor, let alone a presumptive factor to be weighed alongside other Re S factors in the welfare consideration of whether a parental responsibility order should be made. The status of parental responsibility underlies the authorities and the guidance that was applied by the judge in this case. It would no doubt have been helpful to articulate the importance of parental responsibility as a status question i.e. the reason why the Re S factors have been identified as being relevant to the welfare question, but that would not have altered the evidence the judge accepted nor the evaluative judgment on the Re S factors to which he came. For my part, I have come to the clear conclusion that the judge did not err in law nor was there any error in his approach or his evaluation."

22. In A v B and C (Lesbian Co-Parents: Role of Father) [2012] EWCA Civ 285 Thorpe LJ made clear that there was no general rule about whether parental responsibility should be ordered and said: "In the end the only principle is the paramountcy of child welfare" at [23]. He went on to say that he was cautious about the proposition that great weight should be given to "the plans that adults make for future relationships between the child and the relevant adults. Human emotions are powerful and inconstant. What the adults look forward to before undertaking the hazards of conception, birth and the first experience of parenting may prove to be illusion or fantasy".

23. In my view, it follows that whatever agreement or understanding the parties may have had at the time of conception and birth will not be determinative in deciding whether parental responsibility should be granted. That is not to say that such an agreement is wholly irrelevant, as it may provide evidence as to the commitment of the applicant to the child and be informative as to the nature of the relationship that they have with the child. However, evidence as to the applicant's current commitment and attachment to the child is likely to be of greater interest to the court than the parties' earlier intentions.

24. It is clear from the caselaw that a potential reason for not granting parental responsibility is how the applicant may use the parental responsibility if given it. If the court considers that the applicant may misuse the parental responsibility, then that would be a ground to refuse it. In Re M (Parental Responsibility Order) , the Court of Appeal upheld a refusal of parental responsibility to a father who the judge believed would use the order to undermine the mother and the child. This issue of possible misuse of the order goes in my view to the "motivation" factor referred to above.

25. By section 12(2) an applicant will automatically gain parental responsibility if there is a shared care/lives with order in favour of the applicant. This means that where the court is considering whether to make such an order, with the consequence of parental responsibility, it will need to have in mind the issues of commitment, attachment and motivation before making the order. In the vast majority of cases I would assume that the issues about the nature of the order and parental responsibility would effectively be the same.

26. In Re G (Children) (Residence: Same Sex Partner) [2006] UKHL 43 , Baroness Hale considered the weight to be attached to the fact that one party is both the natural and legal parent of the child, as is the case here for MC. She also considered the number of different ways that a person may be a parent to a child including being a social and psychological parent. I note at this point that FC was clear that she entirely respected MC's position as D's biological and legal parent and said that she had no intention of competing with or undermining this position.”

In A v B and C [2012] EWCA Civ 285 the Court of Appeal considered the particular issues that arise concerning sperm donors and parental responsibility. The Court emphasised that every decision is fact sensitive, but the following factors may be particularly relevant: participation in the child’s very early life and plans for their future, ability to care for the child physically, desire to care for the child, and support for the mother.

In D v E (Termination of Parental Responsibility) [2021] EWFC 37 MacDonald J was considering the termination of parental responsibility and an order for no contact with the child in respect of an eight year old child and a father with convictions for sexual abuse. In respect of the issue of parental responsibility, he dealt with this at [31] onwards and I take those passages into account.

On whether to make an order for no contact with the father, Macdonald J summarised the factors to take into account at [26] and [27]:

“26. These principles must be read in light of FPR 2010 PD12J, entitled Child Arrangements and Contact Orders: Domestic Abuse and Harm , which provides as follows at paragraph [7]:

"In proceedings relating to a child arrangements order, the court presumes that the involvement of a parent in a child's life will further the child's welfare, unless there is evidence to the contrary. The Court must in every case consider carefully whether the statutory presumption applies, having particular regard to any allegation or admission of harm by domestic abuse to the child or parent or any evidence indicating such harm or risk of harm."

27. The foregoing principles set out in PD12J are expressed by reference to domestic abuse. However, it is plain that this approach will apply, in proceedings relating to a child arrangements order, to all allegations or admissions of harm to the child or parent relevant to the question of contact or evidence indicating such harm or risk of harm. Within this context, I note that paragraphs 35 to 37 of PD12J enjoin the court, inter alia , to take the following factors into account when considering child arrangements in cases where the court is satisfied that such harm has occurred:

i) The court should ensure that any order for contact will not expose the child to an unmanageable risk of harm and will be in the best interests of the child.

ii) The court should apply the individual matters in the welfare checklist set out in s.1(3) of the Children Act 1989 with reference to the harm that has occurred and any expert risk assessment obtained.

iii) In particular, the court should consider any harm which the child, and the parent with whom the child is living, is at risk of suffering if a child arrangements order is made.

iv) The court should make an order for contact only if it is satisfied that the physical and emotional safety of the child and the parent with whom the child is living can, as far as possible, be secured before, during and after contact.

v) The court should consider, inter alia , whether the parent is motivated by a desire to promote the best interests of the child or is using the process to continue a form of abuse against the other parent and the capacity of the parents to appreciate the effect of past abuse and the potential for future abuse.”

Ms Robertson referred the Court to two decisions of Hedley J concerning children’s contact with their father, who had been a sperm donor: TJ v CV [2007] EWHC 1952 and P and L (Minors) [2011] EWHC 3431. In TJ at [24] and [25] he said:

“24. In my judgment it is essential at this point to put aside the fears, aspirations and feelings of the adults and to try to look at the case through the eyes of a growing boy, as BA is. He will grow up in the family of CV and S and to him that will be unremarkable. However, he will go to school and it will not surely be long before he has questions about a father. The present proposal (reasonable in itself) is that he will be told of the kind man who enabled mummy to have him. He will hopefully grow up knowing his extended family on both sides. He will accordingly know TJ as one of his uncles. The rest of the family (on both sides) knows of course that TJ is more than that as BA will inevitably discover. To avoid this information coming out in an unplanned way, Dr.S wisely advises that BA learns early of the facts of life and of the means by which he came to be. Will it help him, I ask myself, to know also that this uncle is more to him than that? I am sure that it will. The experience of adoption, which surely we must not neglect in other less conventional forms of parenting, is that children often develop a real interest in their natural parents. This is hardly surprising since that person, however small their involvement in the life of the child, has contributed 50% of his genetic make-up. The other powerful lesson from adoption is the need for truth and the avoidance of deceit from the earliest days. Young children rarely have trouble with the truth, however strange it may seem, although the adults around them may do so. However, the discovery in adolescence that they have been duped or misled (as they may choose to see it) may have serious ramifications for family relationships.

25. It is for these reasons that I think that, if it is possible to do, it is strongly in BA's interests to maintain some kind of relationship with TJ. As a bald statement that is not really controversial. Moreover both Dr. S and, more cautiously, the guardian saw such a role particularly where the court has concluded that TJ is genuine in motivation even if clumsily heavy-handed in style.”

Section 91(14)

The approach that the Court should take to making an order under s.91(14) was considered by the Court of Appeal in Re P (Section 91(14) Guidelines) (Residence and Religious Heritage) [1999] 2 FLR 573 where Butler Sloss LJ set out clear guidelines for the making of such orders. Although there are numerous subsequent cases, those guidelines continue to hold good and are a clear statement of the correct approach:

“Guidelines

(1) Section 91(14) of the Act of 1989 should be read in conjunction with section 1(1), which makes the welfare of the child the paramount consideration.

(2) The power to restrict applications to the court is discretionary and in the exercise of its discretion the court must weigh in the balance all the relevant circumstances.

(3) An important consideration is that to impose a restriction is a statutory intrusion into the right of a party to bring proceedings before the court and to be heard in matters affecting his/her child.

(4) The power is therefore to be used with great care and sparingly, the exception and not the rule.

(5) It is generally to be seen as a useful weapon of last resort in cases of repeated and unreasonable applications.

(6) In suitable circumstances (and on clear evidence), a court may impose the leave restriction in cases where the welfare of the child requires it, although there is no past history of making unreasonable applications.

(7) In cases under paragraph 6 above, the court will need to be satisfied first that the facts go beyond the commonly encountered need for a time to settle to a regime ordered by the court and the all too common situation where there is animosity between the adults in dispute or between the local authority and the family and secondly that there is a serious risk that, without the imposition of the restriction, the child or the primary carers will be subject to unacceptable strain.

(8) A court may impose the restriction on making applications in the absence of a request from any of the parties, subject, of course, to the rules of natural justice such as an opportunity for the parties to be heard on the point.

(9) A restriction may be imposed with or without limitation of time.

(10) The degree of restriction should be proportionate to the harm it is intended to avoid. Therefore the court imposing the restriction should carefully consider the extent of the restriction to be imposed and specify, where appropriate, the type of application to be restrained and the duration of the order.

(11) It would be undesirable in other than the most exceptional cases to make the order ex parte.”

Naming JM

Section 12 of the Administration of Justice Act 1960 and s.97(2) Children Act 1989 impose restrictions on reporting and publications in family cases involving children. Courts may publish judgements anonymised to protect the identity of the children.

Section 97(2) Children Act 1989 provides that “no person shall publish to the public at large or any section of the public any material which is intended, or likely to identify (a) any child as being involved in any proceedings before the High Court or the family court in which any power under this Act may be exercised by the court with respect to that or any other child; or (b) an address or school as being that of a child involved in such proceedings”. Section 97(4) relaxes the prohibition where the welfare of the child requires it.

When the court is asked to permit reporting of such cases the court must strike a balance between Article 8 and 10 of the ECHR.

Sir James Munby P in Re J (A Child) [2013] EWHC 2694 at [22] stated:

“The court has power both to relax and to add to the “automatic restraints.” In exercising this jurisdiction the court must conduct the “balancing exercise” described in Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593. [2005] 1 FLR 591 and A Local Authority v W, L, W, T and R (by the Children’s Guardian) [2005] EWHC 1564 (Fam), [2006] 1 FLR 1. This necessitates what Lord Steyn in Re S, para [17], called "an intense focus on the comparative importance of the specific rights being claimed in the individual case". There are, typically, a number of competing interests engaged, protected by Articles 6, 8 and 10 of the Convention. I incorporate in this judgment, without further elaboration or quotation, the analyses which I set out in Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142, at para [93], and in Re Webster; Norfolk County Council v Webster and Others [2006] EWHC 2733 (Fam), [2007] 1 FLR 1146, at para [80]. As Lord Steyn pointed out in Re S, para [25], it is "necessary to measure the nature of the impact ... on the child" of what is in prospect. Indeed, the interests of the child, although not paramount, must be a primary consideration, that is, they must be considered first though they can, of course, be outweighed by the cumulative effect of other considerations: ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166, para [33].”

Lord Steyn at [17] in Re S, A Child [2004] UKHL 47 states:

“The interplay between articles 8 and 10 has been illuminated by the opinions in the House of Lords in Campbell v MGN Ltd [2004] 2 WLR 1232. For present purposes the decision of the House on the facts of Campbell and the differences between the majority and the minority are not material. What does, however, emerge clearly from the opinions are four propositions. First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test. This is how I will approach the present case.”