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Re Cases Y, Z, AA, AB & AC (Human Fertilisation and Embryology Act 2008) [2017] EWHC 784 (Fam)

Applications for declarations of parentage in accordance with section 55A of the Family Law Act 1986 where children had been born following donor insemination but statutory requirements had not been complied with.

These five cases comprise a subset of a number of cases that arise from the failures by two fertility clinics to complete correctly various statutory forms prior to treatment. Despite being obvious, the errors were only detected by the clinics involved some time after treatment had been provided.

As the President notes in the course of his judgment, none of the five cases raises any novel points of law over and above those already discussed by the President in In re A and others (Legal Parenthood: Written Consents) 2015 EWHC 2602 (Fam) and in Re the Human Fertilisation and Embryology Act 2008 (Case O) [2016] EWHC 2273 (Fam).

In each case, the President was able to grant the declarations sought on the basis that, reading the relevant paperwork as a whole, none of the errors was fatal to the individual applications.
The fertility clinics agreed to pay the reasonable costs of the applicants.

Summary by Graeme Harrison, barrister, St John's Chambers,   Bristol.

________________________

Case numbers omitted
Neutral Citation Number: [2017] EWHC 784 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 12 April 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 Y, Z, AA, AB and AC)


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Ms Deirdre Fottrell QC (instructed by Goodman Ray Solicitors LLP) for the applicants

Hearing date: 21 March 2017

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Judgment
This judgment was handed down in open court


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 judgments were Re the Human Fertilisation and Embryology Act 2008 (Cases P, Q, R, S, T, U, W and X) [2016] EWHC 2273 (Fam) and Re the Human Fertilisation and Embryology Act 2008 (Case K) [2016] EWHC 2356 (Fam). They were the sixteenth to twenty-fourth of these cases in which I have given a final judgment. This judgment relates to another five cases, Cases Y, Z, AA, AB and AC. That amounts to 29 cases in all. There are at least another five cases in the pipeline, Cases AD, AE, AF, AG and AH.

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. All relate to treatment provided by Care Fertility Group Manchester, except Case X which relates to treatment provided by Care Fertility Group Manchester. 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 he or she is, in accordance with sections 36 and 37 or, as the case may be, 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, although representatives of Care Fertility Group attended the hearing. 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, in the order Case Y, Case AA, Case AC, Case AB and Case Z, on 21 March 2017. In each case X was represented by Ms Deirdre Fottrell QC. At the end of each of the hearings I indicated that I was making the orders sought. I now (xx April 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 of Cases Y, AA, AC and AB the applicant is a woman. In Case Z the applicant is a man. None of them was either in a civil partnership with or married to the respondent mother.

10. Case Y: Adopting the terminology I have used in previous cases, the problem in this case is very shortly stated. The Form PP was correctly completed. There is no Form WP in the clinic's records. X and Y do not assert any positive memory of a Form WP. Ms Fottrell invites me to proceed on the basis that there is a Form IC, signed by both X and Y, in a form which, on the basis of my judgments in previous cases, suffices to entitle X to the declaration she seeks. The relevant declaration, signed by X, reads as follows:

"I am the partner of [Y]. I acknowledge that she and I are being treated together … In consenting to the course of treatment outlined above, I understand that I will become the legal parent of any resulting child(ren) subject to the completion of the appropriate HFEA consent forms [see page 1, section 4 of this consent]."

That cross-reference is to Forms WP and PP. But for the inclusion of the words "subject to the completion of the appropriate HFEA consent forms", there could be no question of this not being a Form IC sufficient to entitle X to the declaration she seeks. The only question is whether those words are fatal to the efficacy of the document for this purpose. In my judgment they are not. The document has to be read as a whole and, read as a whole, it is clear that both parties were signing a document which contemplated that X would be a parent. If X was not to be a parent, why sign the declaration at all? X is entitled to the declaration she seeks: see In re A, para 63(iii).

11. Case AA: Again, the problem is very shortly stated. The Form WP was properly completed. The Form PP contains two errors: first, Y's name, rather than X's, appears in section 1, and X's name, rather than Y's, appears in section 2; secondly, the declaration in section 5 has been signed by Y and not by X. However, and importantly, 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. Both errors are obvious. The first error, the transposition of the names, can be corrected by way of rectification: see In re A, para 47, Re the Human Fertilisation and Embryology Act 2008 (Case G) [2016] EWHC 729 (Fam) and Re the Human Fertilisation and Embryology Act 2008 (Cases P, Q, R, S, T, U, W and X) [2016] EWHC 2273 (Fam), paras 17 (Case S) and 18 (Case T). The second error is irrelevant: 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). 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). In these circumstances X is entitled to a decree of rectification and the declaration she seeks.  

12. Case AC: Again, the problem is very shortly stated. The Form WP was properly completed. In the Form PP, Y's name, rather than X's, appears in section 1, and X's name, rather than Y's, appears in section 2. However, the consent box in section 3 has been ticked, the second page, which contains section 3, has been signed at the foot by X, as has the declaration in section 5. The error is obvious. The transposition of the names can be corrected by way of rectification: see the authorities referred to in paragraph 11 above. X is entitled to a decree of rectification and the declaration she seeks.

13. Moreover, there is again 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 Form IC considered in paragraph 10 above. In the circumstances, X is, in principle, entitled to the declaration she seeks on this ground also.

14. Case AB:  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 ? 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), and 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). 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. Both Y and X signed a Form IC which, in all material respects, was in the same form as the Forms IC considered in paragraphs 10 and 13 above. In the circumstances, X is, in principle, entitled to the declaration she seeks on this ground also.

16. Case Z: Again, the problem is shortly stated. The Form WP was properly completed. In the Form PP, which was otherwise properly completed, the consent box in section 3 on the second page was not ticked. The omission of the ? in the consent box is not fatal to the validity either of a Form WP or, as here, of a Form PP: see the authorities referred to in paragraph 14 above. X is entitled to the declaration he seeks.

17. Again, there is again a quite separate ground on which X is entitled to the relief he seeks. Both Y and X signed a Form IC, indeed a number of Forms IC, which, in all material respects, were in the same form as the Forms IC considered in paragraphs 10, 13 and 15 above. X is, in principle, entitled to the declaration he seeks on this ground also.

Outcome
18. 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
19. In each case the clinic has very properly agreed to pay the applicant's reasonable costs.