username

password

Coram Chambers2-3 Hind Courtimage of 4 Paper Buildings logoGarden CourtHarcourt Chamberssite by Zehuti

Home > Judgments > 2013 archive

Re: E & F (Assisted Reproduction: Parent) [2013] EWHC 1418 (Fam)

Cobb J considers the Human Fertilisation and Embryology Act 2008 and whether non-compliance with the statutory regime should result in a declaration that the partner was not the legal parent of the child.

AB and CD formed a same-sex relationship in 1997 and commenced cohabitation in 1998. They separated after 13 years, in June 2011.  By 2008 they had decided they wished to create a family and approached the Z Fertility Clinic which offered a complete range of infertility treatments and had a well-established donor sperm bank.

Thereafter there were a number of meetings between various professionals from the clinic and AB and CD. At the time of the initial meetings Part II of the Human Fertilisation and Embryology Act 2008 ("the HFEA 2008") was not in force (coming into force on 6 April 2009). Two cycles of IUI treatment were undertaken by CD but were unsuccessful. The third, and successful, cycle of treatment was undertaken on 4 and 5 May 2009. As a result of the implementation of the new statutory provisions, AB and CD signed revised "consent forms" which purported to give their bilateral agreement to AB becoming the legal parent of any child born as a consequence of the treatment, in accordance with the new law.

On 13 January 2010, twin boys, E and F were born. On 17 February 2010, AB and CD registered the boys' birth, with AB being recorded as the 'Parent' and CD as the 'Mother'. In light of AB's status as 'parent', by the registration process she acquired parental responsibility under section 4ZA of the Children Act 1989 (Acquisition of parental responsibility by second female parent). AB played an integral role in the children's lives until June 2011 when AB left CD.

AB applied for contact with E and F. CD opposed this application and sought a declaration pursuant to s.55A of the Family Law Act 1986 that AB was not the parent of E and F as a result of non-compliance with the requirements of the 2008 Act. This preliminary issue is the subject of this judgment. 

Cobb J considered at length the evidence which related to the intentions of AB and CD as to AB's status as a legal parents. He was satisfied that before, and during, CD's pregnancy the couple had discussed AB's proposed legal status in relation to any child born as a consequence of the treatment and accepted that they both acknowledged that they wished AB to have legal parental status, though their reasons for this differed. 

Cobb J considered the legal framework and in particular the relevant statutory code as enshrined in the HFEA 1990 and the HFEA 2008, augmented by a number of Codes/Guidance in force at the relevant time, and as interpreted by the courts in a number of reported cases. Cobb J identified seven general principles from the case law which he applied to the facts before him. In summary these were:-

1. The HFEA 2008 is to be construed and applied in a way that creates as much certainty as possible;

2. the "twin pillars" supporting Parliamentary regulation of this difficult field are intended to be: (a) the requirement for informed consent, capable of being withdrawn at any point prior to the transfer of the embryos to the woman receiving treatment; and (b) the focus on child welfare required by section 13(5)

3. In circumstances where life is being created, where consequent legal relationships are created, there is a need for mutual, bilateral, understanding and agreement:

4. When obtaining bilateral consent for treatment, (and for the creation of legal relationships), proper information needs to be provided to both parties making the commitment.  It is just as important that information is given to, and consent obtained from, the person who is not directly receiving the treatment – i.e. in the position of AB in a lesbian relationship – as the person being treated:

5. It is essential that the courts pay proper respect to the scheme laid down by Parliament, and supported by the Human Fertilisation and Embryology Authority, for the regulation of assisted reproduction. 

6. The very significant legal relationship of parenthood should not be based on a fiction, and reliable safeguards need to be in place to ensure that this relationship is created in an appropriate way: 

7. Whereas "[t]he perspective of the clients is…to be treated as part of the relevant evidence" when the court is considering a question of fact which imports a subjective element (such as whether the parties were being "treated together" for the purposes of s.28(3) of the HFEA 1990), the 'perspective' or intention of the clients cannot otherwise trump the strict letter of the legislation.

Cobb J then addressed whether there had been effective consent for AB to be a legal parent. He carefully reviewed the applicable provisions of the HFEA 1990 and 2008 and the relevant Codes/Guidance in his judgment and concluded that the "Consent to Legal Parent" forms must be in forms WP and PP which must be provided to the "person responsible" at the clinic. Further, these consents must be given before the treatment takes place.

Cobb J found that the forms were handed to the Clinic by AB and CD after the second day of insemination treatment of the third cycle. This therefore was ineffective to grant parentage status to AB.  

The parties invited Cobb J to consider the further issues which arose in this case and to provide guidance. In this regard Cobb J highlighted that in his judgement the obligation on the clinic to satisfy itself that it has obtained informed consent to treatment applies equally to its obligations to satisfy itself that informed consent is being given to the grant of parental status to the second woman. 

Cobb J stated that there is heavy emphasis in the Guidance on ensuring that licensed clinics provide sufficient information to enable couples to understand the nature and implications of the treatment (and therefore agreement) they are reaching.  In his view the clinic fell far short of delivering this for AB and CD. Therefore, Cobb J was satisfied that any consent to the grant of parentage was not in the circumstances of this case, truly 'informed' consent.

Cobb J found that the clinic did not comply with its licence conditions in providing treatment to AB and CD in that:

i) it had not provided sufficient information to both parties to enable them to make informed decisions about parentage issues at the time of the treatment (as above);

ii) it did not provide the parties with an opportunity to receive proper counselling about the step proposed prior to treatment.

iii) Inadequate records had been kept of the treatment and delivery of the WP / PP forms.

He concluded that the treatment provided to CD was not offered under the strict terms of "that licence" (s.43 HEFA 2008) and that, even if the consent forms had been delivered prior to the third cycle of treatment, they would have been ineffective to achieve their purpose.

AB sought to argue that she should be granted parental status for public policy reasons notwithstanding non-compliance with the statutory regime. Cobb J rejected this and stated that if there was any public policy argument engaged it pointed in favour of upholding the tightly regulated regime of assisted reproduction, not relaxing it.

Cobb J therefore granted a declaration that AB was not the parent of E and F and invited the prescribed officer of the Court to notify the Registrar General of this decision within 21 days (in accordance with section 55A(7) and rule 8.22 FPR 2010) so that the births of E and F can be re-registered. AB's application for leave to make a contact application in respect of E and F was listed for directions.

Summary by Alison Easton barrister, Coram Chambers

_____________________________________

This judgment is being handed down in private on 24th May 2013 It consists of 26 pages and has been signed and dated by the judge.  The judge hereby gives leave for it to be reported, in the anonymised form.

The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.

Case No: LE12P00342
Neutral Citation Number: [2013] EWHC  1418  (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 24 May 2013

Re: E & F (Assisted Reproduction: Parent)

Before :

THE HONOURABLE MR JUSTICE COBB
- - - - - - - - - - - - - - - - - - - - -

Between :

AB Applicant
 
- and - 
 
CD Respondent

-and-

The Z Fertility Clinic Intervener
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Mr Martin Kingerley (instructed by Smith Partnership) for the Applicant [AB]
Miss Marisa Allman (instructed by Simpson Millar LLP) for the Respondent [CD]
Miss Ashley Thain (instructed by Mills & Reeve LLP) for the Intervener [Z Fertility Clinic]
Hearing dates: 7, 8, 9 May 2013
- - - - - - - - - - - - - - - - - - - - -

Judgment
Mr. Justice Cobb :
Introduction and summary:

1. Law and society have always attached a special significance to a person's status, and 'parentage' confers status – on both the adult and on the child (see for instance Lord Wilberforce's speech in The Ampthill Peerage [1977] AC 547, at 568G—H).

2. The legal status of 'parent' carries with it implications for:

i) the law relating to contact & residence (section 10(4)(a) Children Act 1989);

ii) child maintenance (schedule 1, para.4 and 10 Children Act 1989 as amended by schedule 6 HFEA 2008);

iii) inheritance (section 48(5) HFEA 2008);

iv) "bring(ing) and defend(ing) proceedings about the child" (Baroness Hale in Re G [2006] UKHL 43 [2006] 2 FLR 629 @ §32);

and importantly:

v) "mak(ing) the child a member of that person's family" (Re G ibid.)

3. The conferring of the legal status of 'parent' on a person who is not genetically related to a child is therefore a serious matter (see Re R (IVF: Paternity of Child) [2005] UKHL 33 [2005] 2 FLR 843, §39).  The creation of such a relationship affects not only the mutual connection of parent and child, but also the associations between the child and the whole of that parent's family.

4. Divesting a person of the legal status of 'parent' is plainly no less serious; it is this difficult issue which I am required to determine at this interlocutory stage of these private law proceedings.  

5. The important context in which the key events with which I am concerned occurred was the implementation of the Human Fertilisation and Embryology Act 2008 ("HFEA 2008"); this introduced significant amendments to the Human Fertilisation and Embryology Act 1990 ("HFEA 1990") providing, for the first time, the facility for a woman ("a second woman") in a same-sex relationship who was not in a civil partnership nonetheless to become a 'parent' of a child or children born to her partner where both parties agreed.  

6. The arrangements for conferring legal parenthood under the HFEA 2008 depend upon mutual compliance by the parties and the relevant clinic with a range of legal duties and procedural requirements; these are underpinned by core regulatory principles applying to licensed centres carrying out activities under the HFEA 1990 and the HFEA 2008.  One of the more important duties on a licensed clinic is to ensure that patients are given sufficient, accessible and up-to-date information to enable them to make informed decisions about the significant steps as to treatment and parentage which they take. The licensed clinic is required further to ensure that all patients have provided all relevant consents before carrying out any licensed activity.  Unsurprisingly there was, and is, a complementary obligation on the clinics to maintain accurate records and information.

7. This judgment discusses the serious implications for the patients, and the children born to those patients, when the legal duties, procedural requirements and regulatory principles are not observed rigorously.  Had they been so applied, when the parties to this case had purported to achieve the grant of 'parental' status to the 'second woman', a great deal of distress, and this part of this litigation, would almost certainly have been avoided.

8. The Applicant is AB, a lesbian woman aged 37, who makes an application for contact to twin boys, E and F, now aged 3.  In making that application, she describes herself as the boys' 'parent'; she is indeed so defined on the boys' birth certificates.  For the first 17 months of their lives, she fulfilled a parental role, as an integral part of the boys' family with her then partner, and the mother of the boys, CD. 

9. CD opposes the contact application.  In responding to the application, she disputes that AB is the boys' 'parent'.  She invites me to make a declaration, in line with her contention that AB is not a parent, under section 55A of the Family Law Act 1986.  That is the preliminary issue (namely whether AB is properly to be regarded as a legal 'parent' to the boys) to which this judgment is addressed. 
1
0. CD further contends that it would not be in the children's best interests for AB now to have contact with the boys.

11. In addressing the issues in this case, I have been required to consider with care whether the steps taken by the parties, AB and CD, and by the licensed fertility clinic which was responsible for assisting the reproduction, were effective to grant AB status as legal 'Parent'.  In doing so, I have focused on the following issues:

i) Whether the 'consent' forms purporting to vest 'parental' status in AB were completed and submitted to the licensed clinic in accordance with the requirements of the HFEA 2008, and supporting guidance.  This gives rise to questions of:

(a) The timing of completion, and submission to the 'person responsible' at the licensed clinic overseeing the assisted reproduction, of the relevant forms;

(b) Whether the consent to parental status evidenced by those forms was truly 'informed' consent.

ii) Whether at the time the treatment was given to AB and CD, the fertility clinic had complied with its licence requirements under the HFEA 1990.  In particular:

(a) Had the clinic provided sufficient information to both parties to enable them to make informed decisions about parentage issues?

b) Had the clinic provided the parties with an opportunity to receive proper counselling about the step proposed?

If not

(c) Does the non-compliance with the licence requirements vitiate the consent of the parties?

iii) Generally, I have been asked to consider what significance should be attached to the intention of the parties on the question of grant of parentage, if the legal, procedural and regulatory principles have not been strictly observed. 

iv) If I determine that the requirements for establishing 'parentage' were not complied with in the instant case, whether I should reject the application for a declaration as to (non-)parentage, on public policy grounds (i.e. on the basis that the court should be slow to deprive AB of the status of 'parent' and potentially other 'parents' in her situation who have failed to acquire the relevant status by reason of what has been described as a 'technical' non-compliance with the statutory requirements).

12. In determining this application I have received oral and written evidence from AB and CD.  I have also received oral and written evidence from the licensed clinic (hereafter referred to as 'The Z Fertility Clinic'), which, for the reasons set out below, has been joined as an intervener in these private law proceedings. 

13. I have faithfully applied the evidence in this case to the law, underpinned as it is by codes of practice and guidance, and for the reasons which I discuss more fully below, I have been constrained to find that the legal requirements under the HFEA 2008 for AB to become a parent were not satisfied. 

14. I conclude that it is in the interests of E and F that I should make the relevant declaration under section S55A of the Family Law Act 1986 so that there is certainty about the decision which I have reached.

15. I wish to emphasise at this early stage of the judgment that the withdrawal of legal parental status, devastating though that is likely to be to AB, is not the end of the story.  A parental relationship can take many forms, not just dependent upon biological or legal links; psychological and social parenthood is, or can be, meaningful for children. I accept Baroness Hale's description of this important category of 'parent' in Re G (Children) [2006] UKHL 43 @ §35 (a case with some common themes) as being:

"the relationship which develops through the child demanding and the parent providing for the child's needs, initially at the most basic level of feeding, nurturing, comforting and loving, and later at the more sophisticated level of guiding, socialising, educating and protecting."

16. It may be that AB has a true parental role to play for E and F in the future as she has in the past; I am not in a position to assess that at this stage.  From the submissions of counsel I have been led to understand that there will not be any, or any meaningful, opposition from CD to the grant of leave to AB to pursue her contact application.  That application for leave, and if granted, the application for contact, will now be determined at a hearing which I shall set up without any further delay.

Essential background facts
17. AB and CD formed a relationship in 1997, and moved in to live together in the following year.  They separated after some 13 years, in June 2011.  Both now have new partners.

18. For some years, it appears that they discussed having a family.  In 2008 they took steps to create that family and embarked on a course, a "journey" as they both described it, to that end.  That journey unexpectedly has now brought them into the family court. 

19. They both told me that they were keen to achieve conception in "the right way", and resolved to use a respected local fertility clinic, which I shall refer to as The Z Fertility Clinic.  That clinic was established in 1988, and offers a complete range of infertility treatments, treating NHS and private patients; it apparently has a well-established donor sperm bank for the use of patients requiring treatment involving the use of donor sperm.  AB told me (and I accept) that she believed that in using a clinic this would enhance her prospects of acquiring "equal rights" to the children. 

20. In July 2008, CD wrote to the clinic, by e-mail, in these terms:

"Hi.  We are a gay female couple and have lived together for the past 10 years.  We are both aged 33.  We are hoping to start a family and would like to (sic.) some information on how to start the process please.  We look forward to hearing from you.  Best wishes [A] and [C]".

21. The Z Fertility Clinic responded by inviting AB and CD to attend for a meeting with a specialist nurse.  That initial meeting took place within a matter of days, and the couple were provided with written and verbal information about procedures and costs; a summary of the meeting was recorded in the clinic's notes.  Following that meeting, in August 2008, the parties attended a counselling session with a specialist infertility counsellor; the focus of that meeting was to discuss the implications for AB and CD of fertility treatment as the recipients of donated gametes.  The issues which are ordinarily covered in a counselling session of that kind are set out on a pro forma 'checklist'.  At the conclusion of the meeting between AB, CD and the counsellor, they all signed the checklist to confirm that the issues had been discussed.  The list of issues discussed included "Legal Issues, including parental responsibility, consent, withdrawal of treatment, number of births".  The counsellor (who informed me that she had no independent recollection of this couple) commented that "I would have focused on the law as it stood at the time the couple came for counselling … I would almost certainly have told the couple in August 2008 that, although things may be changing, as the law currently stood [AB] would not have any parental status under the eyes of the law…".  This corresponded with AB's recollection (as she confirmed in her oral evidence) that she was told at that meeting that she would not have legal status for any children born as a result of the treatment.

22. In October 2008, the parties then attended a meeting with a Consultant Gynaecologist at the fertility clinic. At that meeting, the parties were provided with the details of four possible donors. CD signed the 'Consent to Insemination' form requesting to be inseminated with the sperm of an anonymous donor, confirming that she had been given a suitable opportunity to take part in counselling about the implications of the proposed treatment (and indeed she had, in August 2008).  AB signed the reverse of the 'Consent to Insemination' form, completing a separate section under the heading, "Partner's Acknowledgement".  AB signed the rubric which declared:

"I am not married to [CD] but I acknowledge that she and I are being treated together and that I intend to have parental rights for any resulting child." 

23. I was informed by Mrs P (the named 'Person Responsible' under section 17 HFEA 1990 (as amended), at the Z Fertility Clinic) that this form was signed by any 'partner' of a woman being treated (whether the partner was same sex or opposite sex) even though she rightly acknowledged that the wording of the declaration was in a number of respects inapposite and potentially confusing (including the reference to marriage, but not civil partnership, and no clear definition of 'parental rights').  The declaration had this note underneath the place for signature (I avoid using the common term 'Explanatory Note' since I consider this coda explains nothing, and indeed only serves to add to the confusion):

"(NOTE: the centre is not required to obtain a partner's acknowledgement in order to make the treatment lawful but it is advisable in the interests of the (sic.) establishing the legal parenthood of the child.)" (emphasis in the original)

24. The gynaecologist also signed the form indicating that he had given CD "all of the information listed in [the relevant] Code of Practice".  CD was prescribed a fertility drug (clomiphene citrate) and advised when she should contact the clinic for the first treatment. 

25. On 25 November 2008 AB and CD selected the donor.  On the following day, the first round of IUI (intrauterine insemination) treatment commenced; it was the practice of the clinic to undertake two insemination procedures on consecutive days at the optimal time in the menstrual cycle to maximise the prospects of success. 

26. The treatment on 26 and 27 November 2008 was unsuccessful. 

27. A second cycle of treatment took place on 28 and 29 January 2009.  It too was unsuccessful. 

28. Three months passed before AB and CD submitted to the next cycle of treatment.  I deal below with the reasons for the delay in embarking on the third round. 

29. In the meantime, there was a significant development in the law, identified in §3 and 4 above.  On 6 April 2009, Part II of the Human Fertilisation and Embryology Act 2008 (including the new provisions concerning legal parenthood) came into force (by SI 2009/479).   The new statutory provisions enabled the partner of a woman who has a child by IVF or donor insemination to be recognised as the child's legal parent.  In short, a woman in the role of AB could now become a legal 'parent' of children born to a same-sex relationship.

30. Prior to the implementation of these new statutory provisions the Human Fertilisation and Embryology Authority had sent out to licensed clinics (including The Z Fertility Clinic) publicity material about the proposed changes to the law including posters and leaflets, bearing the slogan "Are you ready?".  Mrs P told me that staff training was undertaken in the run-up to the change in the law, so that the staff could advise their patients accordingly.

31. On 16 April 2009, CD visited the clinic to collect a further prescription of the fertility drug; she made further visits on 27 and 29 April 2009 for the purposes of ultrasound scans.  The third cycle of treatment took place on 4 and 5 May 2009. 

32. I discuss the events of these important days more fully below. In short, on 5 May 2009, the parties signed and dated 'consent' forms purporting to give their bilateral agreement to AB becoming the legal parent of any child born as a consequence of the treatment, in accordance with the new law.  The forms are officially identified by reference to the acronyms 'WP' and 'PP': WP for the woman receiving treatment with donor sperm consenting to her partner being the legal parent, and PP for the partner consenting to being the legal parent.

33. This third round of treatment was successful, and on 13 January 2010, twin boys, E and F were born.

34. On 17 February 2010, AB and CD registered the boys' birth, with AB being recorded as the 'Parent' and CD as the 'Mother'.  I am told that the Registrar had not previously registered a same-sex 'Parent' in this way before, and (having taken advice from a colleague) completed the registration apparently satisfied with the WP and PP forms which were presented to her.

35. Given AB's status as 'parent', by the registration process she acquired parental responsibility under section 4ZA of the Children Act 1989 (Acquisition of parental responsibility by second female parent).

36. It seems likely from the material which I have read, and the limited evidence which I have heard on this subject at this stage, that both AB and CD were involved in the boys' lives at least until June 2011 when AB left CD; their precise roles, and the nature of the family relationships is contentious, and I have not needed to examine that for the purposes of this judgment.  Insofar as it is relevant, it will be for another day.

Intentions of the parties as to AB's status as legal parent
37. On the evidence taken as a whole, I am satisfied that before, and during, CD's pregnancy the couple had discussed AB's proposed legal status in relation to any child born as a consequence of the treatment.  Moreover, taking their evidence overall, they both acknowledged that they wished AB to have legal parental status, though their reasons for this differed. 

38. At the meeting with the counsellor in August 2008, the question of AB's legal status appears to have been discussed; CD told me that "[the counsellor] made it very clear that AB would have no legal status and that was fine by me … with female couples that was the norm".  This evidence was inconsistent with other parts of her evidence, and was expressed with some bitterness; I suspect that this reflected CD's current attitude rather than her stance at the time.

39. More generally, the import of CD's evidence was that she considered that it would in fact be important for AB to have legal status, but only because she felt that this would encourage AB to take an interest in the children's lives; she confirmed her written evidence on this issue by telling me that she wanted AB's "full acceptance of any children" and felt that this was a way of enhancing that: "I wanted [AB] to be as happy about this [parenthood] and feel included.  That was my motivation".

40. AB told me that she had wished to be recognised as a full legal parent; her evidence is that even before the counselling session, she and CD discussed the possible change in the law, as CD was constantly researching this on the internet.  In any event, her evidence was that after the counselling session in 2008 she and CD had discussed the possibility of her adopting the children.  Although CD told me that she did not recall such a discussion, I believe that the parties probably did discuss adoption; it would have been consistent with their common view about AB having some legal status, and the steps taken thereafter by CD for AB to acquire legal status. 

41. The change in the law in April 2009 represented an opportunity for the parties to give effect to their intentions.  AB told me that even in July 2008 the couple "hoped" that the law would change; by April 2009, she said that she had been aware "for a while" about the proposed change in the law which would enable AB to become a parent.  She indicated that she was keen to take advantage of the change in the law, and that was one of the reasons (she said) why the couple waited until after 6 April to embark on the third round of IUI. 

42. CD said that the couple had not waited for the third round of treatment to take advantage of the law.  On 2 March 2009, CD had written a blog on a Fertility Forum in which she indicated to a correspondent that she had had "no idea" that the law was changing, and asked for further information; she did nonetheless go on to comment that it was "fantastic news" that the law was changing.  In the same message she indicated that the couple were scheduled for their "third 'go'" (i.e. of treatment) "in April".  On 4 March 2009, CD posted another message to a different correspondent; in that message, she gave reasons for why the couple had waited for the third round of treatment – because work had been busy, because she wanted to have the right positive mental attitude, and finally to take advantage of the new law.  She told me that this third point was only added as an afterthought as a mark of solidarity for the same-sex contributors to the blog ("a supportive gesture to the lesbian group"). 

43. I am satisfied that while AB and CD probably knew in general terms about a possible change in the law in the early stages of the treatment, only on 2 March 2009 did CD discover that it was so imminent.    I am satisfied that the failed treatments in November 2008 and January 2009 had taken a significant emotional toll on CD (she told me that she had been "devastated" when the first round of treatment failed, and yet more so after the failed second round), and that this was the predominant reason why the couple delayed the third round of treatment so that she could develop that more "positive mental attitude" to the treatment. CD told me that she had become "obsessive" about the third round being successful "it was all I thought and talked about" and told me that she was concentrating on "getting my health and attitude tip-top" for that purpose.  I accept that evidence. In my judgment, however, the change in the law provided a fortunate coincidental benefit to the couple, and one of which they sought to take advantage.

44. Consistent with her general intention that AB should acquire the legal status of 'parent', CD told me that she had followed the website links suggested by her 'Fertility Forum' correspondent, and in the period before the third treatment, she downloaded the requisite forms from the internet so as to give effect to their joint intention to confer parentage in accordance with the new law. CD explained that in doing so she felt that this "would give her some parental responsibility, I thought.  She would then feel included and step up to the mark…".

45. The couple signed the WP and PP forms (again, it was emphasised "to ensure AB also had legal parentage for any children born as a result of this treatment" – per CD), and handed them to the nurse at the clinic. 

46. AB invites me to give effect to the parties' intentions and to confirm her status as the boys' parent.  CD invites me to divest AB of legal parental status notwithstanding their intentions at the time.  AB suggests that CD's current attitude is motivated by a desire to expunge AB from the boys' lives and to facilitate in due course the acquisition by CD's new partner, of a legal status.

The legal framework
47. The relevant statutory code is enshrined in the HFEA 1990 and 2008, augmented by a number of Codes/Guidance in force at the relevant time, and interpreted by the courts in a number of reported cases.

48. Principles from the case law: Before turning to the statutory provisions, I identify a number of principles which emerge from the case law to which I been referred, and which I have applied when determining this application:

i) The HFEA 2008 is to be construed "and applied in a way that creates as much certainty as possible" (Lord Hope discussing the HFEA 1990 in Re R (IVF: Paternity of child) [2005] UKHL 33 [2005] 2 FLR 843 at §17) ("Re R");

ii) Overall, the "twin pillars" supporting Parliamentary regulation of this difficult field are intended to be: (a) the requirement for informed consent, capable of being withdrawn at any point prior to the transfer of the embryos to the woman receiving treatment; and (b) the focus on child welfare required by section 13(5) (see Evans v Amicus Healthcare Ltd and others [2004] EWCA (Civ) 727 [2004] 3 All ER 1025);

iii) In circumstances where life is being created, as where in my judgment consequent legal relationships are created, there is a need for mutual, bilateral, understanding and agreement: per Thorpe & Sedley LJJ in Evans (above) at §69:

"The need, as perceived by Parliament, is for bilateral consent to implantation, not simply to the taking and storage of genetic material, and that need cannot be met if one half of the consent is no longer effective. To dilute this requirement in the interests of proportionality, in order to meet Ms Evans's otherwise intractable biological handicap, by making the withdrawal of the man's consent relevant but inconclusive, would create new and even more intractable difficulties of arbitrariness and inconsistency. The sympathy and concern which anyone must feel for Ms Evans is not enough to render the legislative scheme of Sch 3 disproportionate".

iv) When obtaining bilateral consent for treatment, (as again in my judgment for the creation of legal relationships), proper information needs to be provided to both parties making the commitment.  It is just as important that information is given to, and consent obtained from, the person who is not directly receiving the treatment – i.e. in the position of AB in a lesbian relationship – as the person being treated:

"If an unmarried man is to become the legal father of a child of which he is not the biological father, that is a momentous matter for both father and child, and one which must be brought home to the prospective father as clearly as possible": Re R @ §35

v) It is essential that the courts pay proper respect to the scheme laid down by Parliament, and supported by the Human Fertilisation and Embryology Authority, for the regulation of assisted reproduction.  As Hale LJ (as she then was) said in Centre for Reproductive Medicine v U [2002] EWCA Civ 565 at §24

"The whole scheme of the 1990 Act lays great emphasis upon consent. The new scientific techniques which have developed since the birth of the first IVF baby in 1978 open up the possibility of creating human life in ways and circumstances quite different from anything experienced before then. These possibilities bring with them huge practical and ethical difficulties. These have to be balanced against the strength and depth of the feelings of people who desperately long for the children which only these techniques can give them, as well as the natural desire of clinicians and scientists to use their skills to fulfil those wishes. Parliament has devised a legislative scheme and a statutory authority for regulating assisted reproduction in a way which tries to strike a fair balance between the various interests and concerns. Centres, the HFEA and the courts have to respect that scheme, however great their sympathy for the plight of particular individuals caught up in it."

vi) The very significant legal relationship of parenthood should not be based on a fiction (Re R §42), and reliable safeguards need to be in place to ensure that this relationship is created in an appropriate way: Re R §26. 

vii) Whereas "[t]he perspective of the clients is…to be treated as part of the relevant evidence" (Re R @ §19 and §43) when the court is considering a question of fact which imports a subjective element (such as whether the parties were being "treated together" for the purposes of section 28(3) of the HFEA 1990), the 'perspective' or intention of the clients cannot otherwise trump the strict letter of the legislation.

49. Effective consent for second woman to be legal parent: I turn first to the legal framework within which I need to consider whether there has been effective consent for the second woman to be a legal parent.

50. Statute: Part II of the HFEA 2008 covers 'Parenthood in cases involving assisted reproduction'.  It deals with arrangements concerning the mother, the father, and women in civil partnerships (section 42); then the 2008 Act deals with the situation obtaining here, where treatment is provided to a woman who agrees that a second woman shall be a parent.

51. Section 43 HFEA 2008 provides:

"If no man is treated by virtue of section 35 as the father of the child and no woman is treated by virtue of section 42 as a parent of the child but –

(a) the embryo or the sperm and eggs were placed in W, or W was artificially inseminated, in the course of treatment services provided in the United Kingdom by a person to whom a licence applies,

(b) at the time when the embryo or the sperm and eggs were placed in W, or W was artificially inseminated, the agreed female parenthood conditions (as set out in section 44) were met in relation to another woman, in relation to treatment provided to W under that licence, and

(c) the other woman remained alive at that time,

then, subject to section 45(2) to (4), the other woman is to be treated as a parent of the child."

52. Section 44 of the 2008 Act provides that:

"(1) The agreed female parenthood conditions referred to in?(1) section 43(b) are met in relation to another woman ("P") in relation to treatment provided to W under a licence if, but only if,

(a) P has given the person responsible a notice stating that P consents to P being treated as a parent of any child resulting from treatment provided to W under the licence,

(b) W has given the person responsible a notice stating that W agrees to P being so treated,

(c) neither W nor P has, since giving notice under paragraph (a) or (b), given the person responsible notice of the withdrawal of P's or W's consent to P being so treated,

(d) W has not, since the giving of the notice under paragraph (b), given the person responsible –

(i) a further notice under that paragraph stating that W consents to a woman other than P being treated as a parent of any resulting child, or

(ii) a notice under section 37(1)(b) stating that W consents to a man being treated as the father of any resulting child, and

(e) W and P are not within prohibited degrees of relationship in relation to each other.

(2) A notice under subsection (1)(a), (b) or (c) must be in writing and must be signed by the person giving it."

53. There is nothing in Section 45(2)-(4) which are relevant to the issues before the court.

54. Guidance: These statutory provisions have been explained, and are supported, by a number of Guidance documents and Codes of Practice issued by the Human Fertilisation and Embryology Authority to which I have had regard; they include:

i) Direction 2009/1 given under the HFEA 1990 (as amended) (signed on 20 February 2009 by the Chair of the Compliance Committee of the Human Fertilisation and Embryology Authority) ("Direction 2009/1"),

ii) HFEA Consent Form Guidance (version 1: published in 2009) ('HFEA Consent Form Guidance');

iii) Letter from Professor Lisa Jardine CBE, Chair of the Human Fertilisation and Embryology Authority 'CH(09)01' headed 'Early introduction of legal parenthood provisions' (23 February 2009) ("CH(09)01");

iv) 'Legal Parenthood Guidance Note' published by the Human Fertilisation and Embryology Authority (February 2009), setting out the new 'Mandatory Requirements' ('Legal Parenthood Guidance Note')

v) 'Commencement Arrangements Guidance', issued by the Human Fertilisation and Embryology Authority in February 2009 ('Commencement Arrangements Guidance')

vi) Code of Practice (7th edition, 3rd revision: [2007] in force at the time, though subsequently revised) ('Code of Practice');

55. Relevant to the issue of the timing and manner of providing informed consent I have specifically considered the following:

i) Direction 2009/1 provided that any consent of a person whose consent is required under section 44(1) must be recorded in the appropriate forms known as WP and PP;

ii) The 'Commencement Arrangements Guidance', and the accompanying letter ('CH(09)01') contained the following clear message:

"[2] From 6 April 2009 partners of women to whom they are not married or with whom they are not in a civil partnership will only be recognised as the legal parent of any child born from treatment with donor sperm or embryos if written consent has been given before gamete or embryo transfer takes place." (emphasis in bold in the original).

In the accompanying letter, it was clear that the 'written consent' had to be given on the forms WP and PP.

iii) It was further provided in the 'Commencement Arrangements Guidance', explicitly that:

"[8] …The female partner of the woman receiving treatment must have consented (prior to embryo or gamete transfer) to being the second parent of any child born as a result of treatment in order to be legally recognised as such.  The woman receiving treatment must also have consented to her being recognised as the second parent.  If the consents are not in place before gamete or embryo transfer, the partner of the woman receiving treatment will not be legally recognised as the second parent of any child born as a result of the treatment" (emphasis by underlining added).

iv) The publicity material generated by the Human Fertilisation and Embryology Authority ("Are you ready?" – see §30 above) contained the clear directive:

"From 6 April 2009, make sure consents to parenthood are in place before treatment with donor sperm or embryos – otherwise any child born will not have a second legal parent." (emphasis added)

v) The HFEA Consent Form Guidance required licensed centres to obtain "written informed consent" (my emphasis) and to that end, directed that the person giving consent needed to be given:

• "Enough information to enable them to understand the nature, purpose and implications of his or her treatment or donation;

• A suitable opportunity to receive proper counselling about the implications of the steps which he or she are considering taking, and

• Information about the procedure for varying or withdrawing any consent given..."

vi) General Guidance in the Code of Practice indicates that for consent to be valid, it must be:

(a) Given voluntarily (without pressure or undue influence being exerted to accept treatment); and

(b) …

(c) Given only upon receipt of sufficient information to enable the person giving consent to understand the nature, purpose and implications of the treatment."

vii) The Legal Parenthood Guidance Note contained 'General Procedures' for obtaining consent including a direction that the centre should ensure that any person giving consent declares that:

• "They were given enough information to understand the nature, purpose and implications of giving this consent;

• They were given a suitable opportunity to receive proper counselling about the implications of receiving treatment…

• The information they have given in writing is correct and complete."

viii) There was a specific 'Protocol for taking Patient Consent' published by The Z Fertility Clinic for its own use, which contains the following provisions:

(a) "It is a general legal and ethical principle that valid consent must be obtained before starting treatment…"

(b) "It is our duty as medical professionals to ensure that the patient has been provided with the relevant information relating to the procedure they are to consent to, that they have been given sufficient time to digest this information and that they have had the opportunity to have their questions answered."

(c) "If the patient is not offered as much information as they reasonably need to make their decision, and in a form they can understand, their consent may not be valid."

(d) "Consent should always be taken before the day of treatment, in order to allow the patient time to consider the implications of giving such consent."

56. Licence conditions for treatments offered: Relevant to the issue of whether the clinic was operating in fulfilment of its licence conditions, I have considered the following:

i) Section 12 of the HFEA 1990 sets out the general licence conditions, including the duty upon the clinic to maintain proper records;

ii) Section 13 of the HFEA 1990 sets out the further conditions of every licensed activity under paragraph 1 of Schedule 2 of the Act;

iii) It is a condition of the licence that a clinic shall not treat a woman unless account has been taken of the welfare of any child who may be born as a result of the treatment (Section 13(5) of the HFEA 1990);

iv) It is a condition of the licence that a clinic shall not provide treatment with donated gametes unless the patient, and any man or woman who is to be treated together with her, have been given a suitable opportunity to receive proper counselling about the implications of her being provided with treatment services of that kind, and have been provided with such relevant information as is proper (Section 13(6) of the HFEA 1990);

v) It is a further condition of the licence that a clinic shall not provide treatment services to a woman after she has given the 'person responsible' the WP form (i.e. notice under section 44) unless (before or after the event) she and the intended second parent (who has given the 'person responsible' the PP form) have been given a suitable opportunity to receive proper counselling about the implications of the woman being provided with treatment services after the submission of those forms (intending to create the legal relationship of parent for P) "and have been provided with such relevant information as is proper" Section 13(6A) of the HFEA 1990, and Part 2 of Schedule 3ZA (ibid.)

vi) One of the key standards of the Code of Practice (S.7.5.3) obligates the licensed clinic to establish documented procedures for individuals considering or giving consent to treatment to ensure that:

(a) "reasonable steps are taken to verify the identity of any other person whose consent is required to be obtained,

(b) Appropriate verbal and written information is provided in conjunction with obtaining consent and its provision is recorded."

vii) The documentary procedures in (vi) above apply to the important separate 'standard' of the same Code (S.7.6.2) obligating the clinic

"to ensure that people seeking treatment … are given a suitable opportunity to participate in counselling about the implications of the proposed [treatment] before they consent to treatment."

viii) Guidance offered in the same Code (G.5.4.5) provides that

"the centre should provide information to people seeking treatment with donated gametes or embryos about legal parentage and the collection and provision of information, specifically:

(a) Who will be the child's legal parent(s) under the HFEA Act 1990…"

In the 8th edition this has been sensibly expanded in Chapter 6 (dedicated to 'Legal Parenthood') to include the following (§6.1):

"The centre should provide information to people seeking treatment about legal parenthood … The centre should explain that there is a difference in law between the legal status of 'father' or 'parent' and having 'parental responsibility' for a child.  In any case in which people seeking treatment have doubts or concerns about legal parenthood or parental responsibility for a child born as a result of treatment services, the centre should advise them to seek their own legal advice."

ix) That was supplemented by an obligation on the clinic to "record each offer of counselling and the person's decision to accept or reject such offers in the patient notes" (Guidance G.7.4.1)

x) The 'Legal Parenthood Guidance Note' provides, as guidance to the interpretation of Sections 43 and 44:

"Where a woman who is not married or in a civil partnership … is to be treated together with a female partner using donor sperm … the centre must advise those seeking treatment that the female partner can be the parent of any resulting child if the conditions outlined in paragraphs 43 and 44, Part 2, HFEA 2008 are met including that:

(a) the female partner consents to being a legal parent of any child born as a result of her partner's treatment; and

(b) the patient gives consent to her partner being a legal parent of any child born of her treatment; and

….

(f) these consents are in writing and signed".

xi) In interpreting Section 13(6A), the Legal Parenthood Guidance Note provides the following 'Mandatory Requirement':

"The law states that a woman who has consented to her partner being the legal parent of any child born as a result of her treatment can only be treated when she and her partner have:

• had a suitable opportunity to receive proper counselling about the implications of treatment in these circumstances, and

• been given proper information
."

xii) The 'Commencement Arrangements Guidance' made clear that:

"[11] Clinics should note that from 6 April 2009 they will need to comply with licence conditions set out in section 14(3) of the 2008 Act, which amends section 13(6) and adds section 13(6A)-13(6E) to the 1990 Act.  Schedule 4 to the 2008 Act, which introduces a new Schedule 3ZA to the 1990 Act, will also be brought into force on 6 April 2009 to set out the additional counselling requirements and to ensure that they also apply to the female second parent…."

xiii) And later in the same 'Commencement Arrangements Guidance', and in my judgment crucially: 

 "[13] Where couples

- began treatment before 6 April 2009;

- are to undergo gamete or embryo transfer on or after this date; and

- were already provided with the relevant information and offered counselling before this date in line with the 1990 Act before it was amended by the 2008 Act

centres must repeat the offer (sic.) counselling and ensure they have provided information in line with these new requirements".

xiv) Implications counselling for those receiving donated gametes is mandatory at the Z Fertility Clinic, and no treatment would be provided for those who chose not to attend;  this is "because the consequences of receiving donated gametes … are immense for … recipients and for any children so conceived" (according to the counsellor at the Z Fertility Clinic): "It is critical that those seeking treatment with donated gametes such as [AB] and [CD] have thought through all the implications of treatment, both for their own sake and for that of any children they may have as a result." 

Were the 'Consent to Legal Parent' forms properly completed & submitted?
57. The essential 'agreed female parenthood conditions' in Section 44 require that the person receiving treatment ('W' in the statute) and the other woman ('P') to have given the 'person responsible' at the fertility clinic notices stating that they each consent to P being treated as a parent of any child resulting from the treatment under the licence.  These forms must be in forms WP and PP (see para.55(i) above).

58. It is clear from the guidance above, that these consents need to be given before the treatment takes place (see para.55(ii), (iii) and (iv) above).

59. There have been difficulties piecing together the relevant history of key events in this case. The professional witnesses from whom I heard and received evidence from the Z Fertility Clinic were of little assistance in helping me to establish the facts, as none had any independent recollection of AB and CD and were reliant exclusively on such contemporaneous notes as existed (and even those were sketchy), and on what they described as the 'ordinary procedures'.

60. The distance in time since these events has inevitably dulled the recollections of the parties themselves.  I was conscious, when receiving the oral evidence of the lay parties, of some bitterness and ill feeling between them which also may have coloured their recollections, and I have thus been wary to guard against accepting unquestioningly apparent recollections of events which may of course have been tailored to what may now be forensically convenient. 

61. The first question for me to consider is when the forms were presented and signed.  AB believed that the couple had been handed the WP and PP forms when they visited the clinic for the first IUI treatment (of the third cycle) on 4 May 2009; she was unable to be more specific about who had given them the forms, or the circumstances in which they were given.  She was, however, clear that she had not seen the forms before that date.  AB told me that the couple returned to the clinic with the forms on the following day, and that she signed the form at the clinic but could not remember specifically where she was when she did so, or at what stage of the events on that day. She recalls that the couple handed the forms in at some point on 5 May but could not remember precisely when (i.e. whether it was before or after the insemination procedure). 

62. CD asserted (in written and oral evidence) that she had downloaded the forms from the internet and printed them.  While this was, in the experience of the clinic staff, unusual I believe that this is probably true for the following reasons:

i) CD had been provided with the link in a message (a copy of which I have seen) from her correspondent on the Fertility Forum blog, and she said that in "just three clicks" she had found the forms on the internet.  She had printed it double-sided (as per the forms available in the clinic) as this was her practice at work. 

ii) It was not necessarily in CD's interests to explain the provenance of the forms in this way (given that she had sought to play down the parties' joint wish for AB to acquire legal parental status);

iii) It is inherently unlikely that the experienced specialist fertility nurse would have given the couple the forms on 4 May after one insemination procedure. This would have been to ignore the requirement for the forms to be completed before treatment.  Further, the requirements were clear for the forms to be offered, and the counselling/information provided, on a day before the treatment not on the treatment day itself. The specialist nurse would surely have realised the confusion to the legal status that this would produce.

63. It follows that as the clinic, on my finding, did not hand the forms to the couple, there was no obvious moment for the staff to offer the necessary relevant information and/or counselling to both AB and CD about the contents of the forms and the implications of signing them.

64. CD told me that she said that she did not understand the true meaning of the forms, and did not give them the "care and consideration" they plainly deserved. While realising that she needed to hand the forms into the clinic, she told me that she had not appreciated that the forms needed to be handed in before the treatment to give effect to their purpose.  She told me that she completed the couple's passport numbers (required for identification) on the forms in the morning of 5 May 2009 at her kitchen table at home, and thought that the forms needed to be witnessed, so put them in her bag to complete at the clinic.  CD gave this evidence in a plausible manner; her version was not refuted by AB. 

65. The couple attended the clinic on 5 May 2009 for the purposes of the second procedure.  I expect that if the treatment had been delayed while the forms had been completed, AB would have remembered this.  CD told me that after the insemination procedure was complete she had been required to remain supine for 15 minutes or so; she told me that in that period on this second day she took the forms from the bag, and she and AB completed the forms (this is not inconsistent with AB's position).  She says that she then handed the forms to the specialist nurse.  CD says that the specialist nurse told her that she had not seen one of the forms before.  That may well have been right.

66. It is of course possible that the treatment had been effective on 4 May 2009 (it is impossible to say) in which case, on any view, the forms were submitted too late.  However, on my finding, handing in the forms after the second day of insemination treatment on this third cycle is ineffective to grant parentage status to the 'second woman'.  This is clearly indicated by the law, and the guidance, set out extensively in §55(i)-(iv) above. 

67. That is, to all intents and purposes, the end of the dispute.  However, I have heard a great deal of evidence, and received detailed submissions on the other aspects, and I therefore consider it helpful and appropriate to address these further points.

68. Informed consent?  The obligation on the clinic to obtain informed consent from the patient and any partner as to treatment are understandably, and properly, onerous.  I have identified above in §55(v), (vi), and (vii) the general guidance given to clinics in this respect, and at §55(viii) the specific protocol in place at the Z Fertility Clinic. 

69. In my judgment, the obligation on the clinic to satisfy itself that it has obtained informed consent to treatment applies equally to its obligations to satisfy itself that informed consent is being given to the grant of parental status to the second woman.  Rightly, neither Mrs P ('Person Responsible'), nor Miss Thain on behalf of the clinic, sought to argue otherwise.

70. The 'Consent to Insemination' form which was signed by the parties in October 2008 did not purport to establish the grant of legal rights, nor was there any understanding that such grant was perfected (or intended to be perfected) by the subsequent signing of the WP and PP forms; insofar as it purported to do so, the 'Consent to Insemination' form did not provide meaningful information about parentage.

71. Mrs P was equivocal on the question of whether she felt that displaying posters and making available leaflets (reference §28 above) advertising the change in the law post-6 April 2009 were of themselves sufficient to discharge the responsibility on them to offer patients information; when prompted by me, she acknowledged that the advertisements would do little more than to raise general awareness, and may prompt patients to ask.  In my judgment, the displaying of posters and making the leaflets available was wholly insufficient for the clinic to discharge its responsibilities to its patients to provide proper information on which the patients could be expected to make informed decisions.  The leaflets and posters could not in my judgment be said to provide the comprehensive information contemplated by the 'Legal Parenthood Guidance Note' (see §55(vii) above), in that there was not sufficient information available set out on them for patients to understand the 'implications' of giving consent, nor did these forms of themselves offer a 'suitable opportunity for patients to receive proper counselling', and on no account could be it be said that the posters and leaflets provide the "complete" picture.

72. In any event:

i) I accept CD's evidence that she probably did not collect any leaflets from the clinic on the visits in April 2009; she told me that she had picked up a number of leaflets on their first visit (July 2008), but none since; she told me that she said that she had not actually even seen the posters in the clinic, indeed what had been more eye-catching "was the collage of photos of the new born babies (born as a result of treatment at the clinic), especially the photos of twins";

ii) CD only visited the clinic on three occasions between 29 January 2009 and 4 May, once for a prescription and twice for a scan.  She said that she was not offered any information on those visits; she did not go through reception but went straight to the treatment rooms; I accept that;

iii) It is unrealistic to expect patients to have digested entirely the information from posters and leaflets in the clinic: as CD said with considerable understatement "I don't sit and read them, particularly when I have other things on my mind";

iv) AB had not been to the clinic between 29 January and 4 May 2009; there was therefore no opportunity for her to have received further information from the clinic prior to the first day of the third cycle of treatment;

v) AB was vague as to whether she had seen a leaflet reflecting the change in the law; importantly, she was specifically asked to look at the "Are you ready?" leaflet (prepared to inform patients about the change in the law) and did not recognise it;

vi) AB said that while the clinic staff had been good at answering their questions about the medical procedures (catheterisation etc), no one had taken time out with them to discuss the issues around legal parentage.  Given the "momentous" issue at stake, it could not be said on the evidence that the significance of the proposed agreement had been "brought home" to AB "as clearly as possible", or indeed at all (see Re R and §48(4) above).

73. The clinic made no note in the patient records of the forms being handed over, nor collected, and placed on the file.  It made no note of any offer of information or counselling.

74. There is heavy emphasis in the Guidance (see above) on ensuring that licensed clinics provide sufficient information to enable couples to understand the nature and implications of the treatment (and therefore agreement) they are reaching.  The clinic fell far short, in my judgment, of delivering this for AB and CD.

75. Neither AB nor CD had any real understanding, even in the witness box, as to the significance of the parentage provision. 

76. As indicated above, the consents were not in place before gamete transfer, therefore AB, as the partner of CD (the woman receiving treatment) cannot be legally recognised as the second parent of the twins born as a result of the treatment.  I am further satisfied that any consent to the grant of parentage was not in the circumstances, truly 'informed' consent.

Clinic's compliance with licensed conditions
77. As is apparent from the statutory provisions above, a 'second woman' ('P') can be treated as a parent of the child born by way of assisted reproduction (provided the 'agreed female parenthood conditions' are met – per section 44) only if the treatment has been given to 'W' in accordance with licensed conditions of the clinic (section 43 HFEA 2008). 

78. At §56(i) to (v) above I have summarised the key statutory licence conditions relevant to the instant case, and have further summarised:

i) At §56(vi) to (ix) the relevant 'standards' expected of the clinics, and the guidance which it is expected that the clinics will follow in fulfilling its licensed conditions. 

ii) At §56(x), (xi), (xii) and (xiii) the specific guidance issued by the Human Fertilisation and Embryology Authority in relation to the taking of consents for legal parenthood.

79. It will be readily apparent that, in combination, the statute and guidance impose clear obligations on clinics to provide information and counselling to those who were (and are) proposing to embark on parenting agreements.  Indeed, in writing to the clinics on 23 February 2009, Professor Lisa Jardine (CH(09)01) said:

"The 1990 and 2008 Acts require clinics to provide appropriate information, offer counselling and record consent to parenthood".

80. Quite apart from the general licence conditions (set out in §56), the specific provisions of section 13(6A) of the HFEA 1990 (see §56(v)) impose a clear condition upon a licensed clinic to provide a "suitable opportunity" for the woman receiving treatment and the intended 'second parent' "to receive proper counselling" about the implications of the important step of conferring parentage. That obligation extended to the offer of counselling to both parties.   The Commencement Arrangements Guidance (§56(xii above) reinforces the mandatory nature of this obligation.

81. It was clear from the 'Protocol' of the clinic (§55(viii)) that the offer of counselling and the obtaining of consent had to be taken before the day of treatment so as to give the parties time to "digest" the information. 

82. Record keeping is an obvious, and necessary, condition of the licence (see section 12 HFEA 1990 (§56(i) above).  This is one of the key standards in the Code of Practice (see §56(vi) above: "and its provision is recorded"), and is further contained in the Guidance (§56(ix) above).  I regret that the records available from the Z Fertility Clinic were (as indicated above), thin.  Not only is there no record of when or by whom the WP and PP records had been received, there is in fact no record of the forms having been received in the clinic at all; the forms were nonetheless on the file.  Mrs P candidly accepted that the clinic was "not good" at keeping a record of the relevant information about the giving of advice and taking of consents, and acknowledged that if advice had been given about legal parentage it should have been recorded.  She further accepted that if the couple had not been given the information, and an offer of counselling in relation to the parentage issue, then "the treatment should not have taken place"; later she added "I would expect all consents to be in place before the treatment started".

83. Given the importance of this issue, I trust that these proceedings relating to the treatment offered to AB and CD, and this judgment, will operate as a salutary warning to this clinic, and other similar licensed clinics, to ensure proper and detailed record-keeping.

84. The evidence in this case illustrates well why the information and counselling should be offered, and should be offered before the day of treatment, not on the treatment day itself. CD's evidence was that:

"I would not have felt able to take on board counselling and information on the same day as an insemination procedure.  It is a highly stressful procedure … I would not have been in a proper emotional state to take on board information and implications counselling"

85. There is a proper basis for requiring the WP and PP forms – in accordance with the principles of good practice – to be completed and submitted no less than one day before treatment; the treatment is almost always at some level a stressful one.  It would be quite wrong to require the parties to consider for the first time important legal issues on the day of treatment.   Mrs P accepted that it would not be appropriate to offer information and counselling and treat on the same day.

86. Protracted treatment adds a burden to the clinic of ensuring that their information, and the information which they have imparted to their patients is up to date.  The problem in this case is not as profound as it was in Re R where a period of 6½ years had passed between the first referral to the clinic and the ultimate pregnancy.  That said, as Hale LJ said in the Court of Appeal in Re R [2003] Fam 129 @ §25:

"If the circumstances which were taken into account when the couple were together change dramatically, it would better serve the purposes of the Act if the matter had to be reconsidered and fresh counselling offered before a further attempt at implantation is offered. That can only be beneficial to the children born as a result".

87. Mrs P, as the 'person responsible' rightly acknowledged the importance of complying with the licence requirements.  In her evidence she acknowledged that consents would have to be "effective" to comply with the law.  They did their best to ensure that the consents were valid.

88. Conclusion on the licence conditions: In the following respects I find that the clinic did not comply with its licence conditions in providing treatment to AB and CD in that:

i) The clinic had not provided sufficient information to both parties to enable them to make informed decisions about parentage issues at the time of the treatment;

ii) The clinic did not provide the parties with an opportunity to receive proper counselling about the step proposed prior to treatment.

iii) Inadequate records have been kept of the treatment and the delivery of the WP / PP forms.

89. In the circumstances, I am obliged to conclude that the "treatment provided to W [CD]" was not offered under the strict terms of "that licence" (section 43) and that, even if the consent forms had been delivered prior to the third cycle of treatment, I would have been obliged to conclude that they were ineffective to achieve their purpose.

Public policy
90. I have been asked by Mr Kingerley to determine that there are public policy reasons for granting AB parental status notwithstanding the non-compliance with the statutory regime set out in the HFEA 1990 and HFEA 2008 and supporting guidance.

91. He contends that (with reference to section 58 of the Family Law Act 1986) I should indeed decline to make a declaration under section 55A as "to do so would manifestly be contrary to public policy". 

92. His argument is that AB, and he suggests other parents, should not be deprived of parental status simply because the procedure undertaken did not correspond strictly with the requirements of the law.   He contends that the conclusion to which I am driven by the application of statute does not sufficiently recognise the Article 8 rights of same-sex couples such as AB and CD, is discriminatory, and argues further that such a declaration does not "consider the societal and legal developments in respect of alternative and diverse family structures".

93. I reject these arguments.  As indicated by the House of Lords in Re R (see §48(i) above) the HFEA 2008 is to be construed "and applied in a way that creates as much certainty as possible"; if I were to accede to Mr Kingerley's submissions I would be laying the ground for considerable uncertainty.  I do not regard the provisions as discriminatory; on the contrary, the modification of the law under the HFEA 2008, and the corresponding amendments to the Children Act 1989 expanded the categories of person to whom 'parentage' could apply.

94. I must respect the carefully crafted legislative scheme which provides statutory authority for regulating assisted reproduction.  As Hale LJ said in Centre for Reproductive Medicine v U [2002] EWCA Civ 565 at §24 (for the fuller quote see §48(v) above):

"Centres, the HFEA and the courts have to respect that scheme, however great their sympathy for the plight of particular individuals caught up in it."

95. If there is any public policy argument engaged here, it points in favour of upholding the tightly regulated regime of assisted reproduction, not relaxing it.

Conclusion: summary
96. For the reasons discussed above, I therefore conclude, on the balance of probabilities, that:

i) The parent consent forms (WP and PP) were neither signed nor submitted to the Z Fertility Clinic prior to treatment on 4 May 2009.  They were probably obtained by CD from the internet; I accept CD's evidence that she filled in part of the form on the morning of 5 May 2009 and the balance after the second procedure on 5 May 2009; only then did she hand the forms to the nurse at the clinic.

ii) To be effective to bestow parental status on AB, the forms would have had to be submitted before the treatment. 

iii) If I were wrong about that (and I am conscious that I am trying to divine a forensic 'fact' from an imperfect set of recollections), I nonetheless am satisfied that the consent forms were completed and submitted in breach of the clinic's licence obligations in that

(a) there was no offer of counselling to the parties on this issue;

(b) the 'consent' on the forms was not 'informed consent' as defined/discussed in the Guidance (set out above).

97. In the circumstances, the agreement was not effectively achieved within the licensed terms of clinic; that is to say, the "treatment" was not "provided to W under" the strict conditions of "that licence": section 43 HFEA 2008.

98. Therefore I propose to make the declaration that AB is not the parent of E and F. 

99. Subject to further representations from the parties, I shall invite the prescribed officer of the Court to notify the Registrar General of this decision within 21 days (in accordance with section 55A(7) and rule 8.22 FPR 2010) so that the births of E and F can be re-registered.

100. I further direct that AB's application for contact shall be listed before me for directions as a matter of urgency, so that

i) the issue of leave to make the contact application,

and

ii) substantive orders where appropriate

can be considered without any further delay.

Post-script
101. AB has no biological connection with the children E and F, and now must come to terms with her lack of legal recognition as a parent to them; additionally, she faces firm opposition to any contact with the children.  I recognise that she stands in a comparable "vulnerable" position of that of 'CW' in the case of Re G (Children) [2006] UKHL 43 [2006] 2 FLR 629 at §45 (see also Dr. Sturge's commentary reported in B v A (Parental Responsibility) sub nom Re D (Contact and Parental Responsibility: Lesbian Mothers and Known Father) [2006] EWHC 2 (Fam), [2006] 1 FCR 556).

102. I am concerned above all at this stage that these parties do not now re-create the "lamentable history of conflict" which ensued in the case of Re G (see [2012] EWCA Civ 1434).  This is to a large extent in their hands; it would plainly not be in the interests of E and F.