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A v R and Another (Declaration of Parentage) [2017] EWHC 396 (Fam)

Declaration of parentage made where the wrong forms were signed after the couple's child was born following fertility treatment.

This is a further case in the series of cases arising from an audit of fertility clinics that began with the decision in A & others (Human Fertilisation and Embryology Act 2008) [2015] EWHC 2602 (Fam) .

This was an application by a couple for a declaration of parentage under s 55A of the FLA 1986 in respect of their child born as a result of fertility treatment.  Because of a clerical error made by the treating clinic, the wrong forms were signed.  The declaration was granted.  There was no question that the intention of both parents and the clinic was that the correct consent forms would be signed. Both parents should be fully recognised in law as what they have always been in practice - the parents of the child.  Apologies were made on behalf of the NHS trust, along with an agreement to pay the applicants' reasonable costs.

Summary by Martina van der Leij, barrister, Field Court Chambers
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Neutral Citation Number: [2017] EWHC 396 (Fam)
Case Number : MA16P02058

IN THE COUNTY COURT AT LIVERPOOL

Liverpool Civil and Family Court Hearing Centre
35 Vernon Street
Liverpool
Merseyside
L2 2BX

Date: 25th January 2017

BEFORE:

MR JUSTICE PETER JACKSON

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BETWEEN:

A
 Applicant
- and –
R
Central Manchester University Hospital NHS Foundation Trust
  Respondents
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Mr Owen-Casey for the Applicant
The Respondent in person
Mr Andrew Powell for the Central Manchester University Hospital NHS Foundation Trust
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Judgment approved by the court
MR JUSTICE PETER JACKSON:
1. This is an application, in effect, made by a couple, although formally one of them is the applicant and the other the first respondent, for a Declaration of Parentage under Section 55A of the Family Law Act 1986 in respect of a little girl who is now five years old. 

2. I will not identify the child or her parents but simply say that in 2009 the couple received fertility treatment at the Department of Reproductive Medicine in St Mary's Hospital which is under the responsibility of the Central Manchester University Hospital, NHS Foundation Trust, that as a result, the child, who is clearly very much loved by both her parents, was born to the first respondent who is, in law, her mother.

3. As part of the procedures, a number of forms were signed, which it was undoubtedly intended, should establish the applicant as the intended child's other parent.  It is only because of a mere paperwork error, for which the clinic itself was responsible, that that legal consequence did not result.
 
4. In order to achieve what the parents and the clinic had always intended, consent forms would be signed by each of the parents.  The form to be signed by the birth mother, being the WP form, and the form to be signed by the other parent, being the PP form.  In this case, it appears that both parents signed copies of the PP form and no copy of a WP form has been found. 

5. This, of course, is one of a distressing series of cases, the majority of which have been heard by the President of the Family Division, beginning with the decision in A & Others (Human Fertilisation and Embryology Act 2008) [2015] EWHC 2602 (Fam).  Since that decision, there have been a number of further decisions by the President and by other judges of the division, including myself.

6. These cases were unearthed as a result of a nationwide audit of clinics which took place following the identification of errors in earlier cases.  This particular clinic unfortunately identified this case and two others as having paperwork errors of this sort.  I note, with some concern, that it took as long as 20 months from the beginning of the audit to the moment at which the parents in this case were informed of the difficulties, but from that point onwards, matters have moved more quickly, until the point today when the matter is able to be put to rights. 

7. I have read detailed statements from the responsible clinicians, namely the Consultant Embryologist and the Consultant Gynaecologist in which they not only set out the results of the audit in so far as it affects this family, but also express what is obviously a sincere apology to the family for the confusion and distress that has inevitably been caused.  It is not helped that in this case the young child has a number of special characteristics which also place special responsibilities on the parents. 

8. In the end, I have not the slightest hesitation in granting the Declaration of Parentage that is sought, so that both the applicant and the first respondent are fully recognised in law for what they already are, namely the parents of this young child.   Indeed, I have deliberately referred to them both as the parents throughout this short judgment because that is not only what they are, but what they have always been. 

9. I record that Mr Powell, on behalf of the NHS Trust, has repeated today in court the Trust's apology, and agreed that any reasonable costs that have been incurred in the bringing of this application will be reimbursed by the Trust. 

10. That concludes these proceedings and I wish the child and her parents all the very best for the future. 
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