Family Law Hub

AD & Ors, Re Human Fertilisation and Embryology Act 2008 [2017] EWHC 1026 (Fam)

Judgment in five more cases concerning parental responsibility and errors at fertility clinics. All five were granted the declarations sought.

  • This judgment was handed down in open court

    Case numbers omitted

    Neutral Citation Number: [2017] EWHC 1026 (Fam)

    IN THE HIGH COURT OF JUSTICE

    FAMILY DIVISION

    Royal Courts of Justice

    Strand, London, WC2A 2LL

    Date: 5 May 2017

    Before :

    SIR JAMES MUNBY PRESIDENT OF THE FAMILY DIVISION

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    In the Matter of the Human Fertilisation and Embryology Act 2008

    (Cases AD, AE, AF, AG and AH)

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    Miss Elizabeth Isaacs QC and Mr Adem Muzaffer (instructed by Natalie Gamble Associates) for the applicants

    Hearing date: 31 March 2017

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    Judgment

    Sir James Munby, President of the Family Division :

    1. Since I handed down judgment in In re A and others (Legal Parenthood: Written Consents) [2015] EWHC 2602 (Fam), [2016] 1 WLR 1325, I have had to consider a number of cases raising issues very similar to those which confront me here. The most recent judgment was Re the Human Fertilisation and Embryology Act 2008 (Cases Y, Z, AA, AB and AC) [2017] EWHC 784 (Fam). They were the twenty-fifth to twenty-ninth of these cases in which I have given a final judgment. This judgment relates to another five cases, Cases AD, AE, AF, AG and AH. That amounts to 34 cases in all.

    2. For the purposes of this judgment I shall take as read the analysis in In re A and the summary of the background to all this litigation which appears in Re the Human Fertilisation and Embryology Act 2008 (Case O) [2016] EWHC 2273 (Fam).

    The facts

    3. For reasons which will by now be familiar, I propose to be extremely sparing in what I say of the facts and the evidence in these cases.

    4. Case AD relates to treatment provided by Manchester Fertility Clinic, Case AE to treatment provided by Complete Fertility Clinic (Southampton), Case AF to treatment provided by Care Fertility Clinic Manchester, and Cases AG and AH to treatment provided by London Women’s Clinic. Each of the clinics is and was regulated by the Human Fertilisation and Embryology Authority. I shall refer to the applicant in each case as X, the respondent as Y and the child as C. In each case X seeks a declaration pursuant to section 55A of the Family Law Act 1986 that she is, in accordance with sections 43 and 44 of the Human Fertilisation and Embryology Act 2008, the legal parent of C. In each case Y is wholeheartedly supportive of X’s application. In each case the clinic, the HFEA, the Secretary of State for Health and the Attorney General have all been notified of the proceedings. None has sought to be joined. In each case, given the nature of the issues (see below) I decided that there was no need for C to have a guardian appointed.

    5. I heard the cases sequentially on 31 March 2017. In each case X was represented by Miss Elizabeth Isaacs QC and Mr Adem Muzaffer. At the end of each of the hearings I indicated that I was making the orders sought. I now (5 May 2017) hand down judgment explaining my reasons.

    6. Although I am acutely conscious of the stress, worry and anxiety burdening all the parents in these cases, and of the powerful human emotions that are inevitably engaged, each of these cases is, in terms of the applicable legal analysis, straight-forward and simple. They raise no new points. In each case the evidence, which there is no need for me to rehearse in detail, is compelling. In each case the answer is clear.

    7. Just as in each of the other cases I have had to consider, so in each of these cases, having regard to the evidence before me, I find as a fact that:

    i) The treatment which led to the birth of C was embarked upon and carried through jointly and with full knowledge by both the woman (that is, Y) and her partner (X).

    ii) From the outset of that treatment, it was the intention of both X and Y that X would be a legal parent of C. Each was aware that this was a matter which, legally, required the signing by each of them of consent forms. Each of them believed that they had signed the relevant forms as legally required and, more generally, had done whatever was needed to ensure that they would both be parents.

    iii) From the moment when the pregnancy was confirmed, both X and Y believed that X was the other parent of the child. That remained their belief when C was born.

    iv) X and Y, believing that they were entitled to, and acting in complete good faith, registered the birth of their child, as they believed C to be, showing both of them on the birth certificate as C’s parents, as they believed themselves to be.

    v) The first they knew that anything was or might be ‘wrong’ was when, some while later, they were contacted by the clinic.

    8. I add that there can be no suggestion that any consent given was not fully informed consent. Nor is there any suggestion of any failure or omission by the clinic in relation to the provision of information or counselling.

    The facts: the individual cases

    9. In each case the applicant is a woman. None of them was either in a civil partnership with or married to the respondent mother.

    10. Case AD: Adopting the terminology I have used in previous cases, the problem in this case is very shortly stated. The Form WP was correctly completed. In the Form PP, which was otherwise correctly completed, the declaration in section 5 has not been signed. However, the consent box in section 3 has been ticked and the second page, which contains section 3, has been signed at the foot by X. The error in relation to section 5 is irrelevant; X’s signature at the foot of the second page is sufficient to satisfy the statutory requirement: see Re the Human Fertilisation and Embryology Act 2008 (Cases P, Q, R, S, T, U, W and X) [2016] EWHC 2273 (Fam), paras 13 (Case Q) and 15 (Case R) and Re the Human Fertilisation and Embryology Act 2008 (Cases Y, Z, AA, AB and AC [2017] EWHC 784 (Fam), paras 11 (Case AA) and 12 (Case AC). In these circumstances X is entitled to the declaration she seeks.

    11. Moreover, there is a quite separate ground on which X is entitled to the relief she seeks. Both Y and X signed a Form IC which, in all material respects, was in the same form as the MFS Form IC I considered in Case C, Case D and Case E: see In re A, paras 51, 80, 92, 98. In the circumstances, X is, in principle, entitled to the declaration she seeks on this ground also.

    12. Case AE: Again, the problem is shortly stated. The Form PP was properly completed. In the Form WP, which was otherwise properly completed, the consent box in section 3 on the second page was not ticked. The omission of the v in the consent box is not fatal to the validity either of a Form PP or, as here, of a Form WP: see Re the Human Fertilisation and Embryology Act 2008 (Case J) [2016] EWHC 1330 (Fam), para 15, followed by Peter Jackson J in D v D (Fertility Treatment: Paperwork Error) [2016] EWHC 2112 (Fam), Re the Human Fertilisation and Embryology Act 2008 (Cases P, Q, R, S, T, U, W and X) [2016] EWHC 2273 (Fam), paras 11 (Case P) and 17 (Case S) and Re the Human Fertilisation and Embryology Act 2008 (Cases Y, Z, AA, AB and AC) [2017] EWHC 784 (Fam), paras 14 (Case AB) and 16 (Case Z). The fact that the Form PP had been signed at a time when the couple were being treated at another clinic is neither here nor there. The consent in section 3 was in terms of “any child born from my treatment” and the declaration in section 4 signed by Y was expressed as her “consent to the clinic (or any subsequent HFEA-licensed clinic that may become involved in my treatment …” As Miss Isaacs neatly put the point, the consent was not ‘clinic specific’. X is entitled to the declaration she seeks.

    13. Again, there is a quite separate ground on which X is entitled to the relief she seeks. Both Y and X signed a Form IC which, in all material respects, was in the same form as the Barts Form IC I considered in Case A, Case F and Case H: see In re A, paras 51, 84, 88, 105. In the circumstances, X is, in principle, entitled to the declaration she seeks on this ground also.

    14. Case AF: Before they received treatment in relation to their first child, the parents properly completed the Form WP, but the third page of the otherwise properly completed Form PP is missing. However, the consent box in section 3 has been ticked and the second page, which contained section 3, has been signed at the foot by X. The loss of the third page, or any original error in relation to section 5, are irrelevant; X’s signature at the foot of the second page is sufficient to satisfy the statutory requirement: see the authorities referred to in paragraph 10 above. It appears that no further Forms WP and PP were ever completed in relation to their second child, C. That this does not matter appears from Case U: see Re the Human Fertilisation and Embryology Act 2008 (Cases P, Q, R, S, T, U, W and X) [2016] EWHC 2273 (Fam), para 19. X is entitled to the declaration she seeks.

    15. Again, there is a quite separate ground on which X is entitled to the relief she seeks. Before the first round of treatment, both Y and X signed a Form IC which, in all material respects, was in the same form as the Form IC I considered in Case Y, Case Z, Case AB and Case AC: see Re the Human Fertilisation and Embryology Act 2008 (Cases Y, Z, AA, AB and AC) [2017] EWHC 784 (Fam), paras 10 (Case Y), 13 (Case AC), 15 (Case AB) and 17 (Case Z). In the circumstances, X is, in principle, entitled to the declaration she seeks on this ground also.

    16. Case AG: The facts here are very simple. Both the Form PP and the Form WP were properly completed, with the sole exception that in section 4 on page 2 of the Form WP, Y filled in her date of birth where she should have inserted the date on which the document was being signed. That this obvious error is immaterial appears from Case D: see In re A, para 78. X is entitled to the declaration she seeks.

    17. It is asserted, in the alternative, that a Form IC signed by both X and Y suffices. I do not, with respect, agree. The words relied on are:

    “I/we have been directed towards the information in “HFEA Guidance Note 4” – Consent, and “HFEA Guidance Note 6” – Legal parenthood …”

    This, in my judgment, falls far short of what would be necessary to meet the statutory requirements.

    18. Case AH: The Form PP was properly completed but there is no Form WP to be found on the clinic’s file or elsewhere. However, the evidence of both X and Y in their joint witness statement is that Y signed the Form WP at the same time as X signed the Form PP. That evidence has not been challenged. There is no reason to doubt. It is to an extent corroborated by the clinic’s evidence as to its standard practice. I accept their evidence. The Form WP has, I find, been lost or mislaid. X is entitled to the declaration she seeks.

    19. The same argument is put forward, in the alternative, as in Case AG. It fails for the reasons set out in paragraph 17 above.

    Outcome

    20. It was for these reasons that, at the conclusion of the hearing of each case, I made a declaration in the terms sought by X.

    Costs

    21. In each case the clinic has very properly agreed to pay the applicant’s reasonable costs.

Judgment, published: 08/05/2017

Topics

Items referring to this

  • Further guidance in parental declaration cases where statutory requirements had not been complied with. Reflecting that after dealing with 34 cases with a similar factual matrix, most of the issues have been identified and resolved, Munby P provides a standard directions order, a standard final order / declaration, a standard order dealing with the transcript of proceedings and a standard order dealing with costs. Judgment, 14/07/2017, free

Published: 08/05/2017

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