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AI and AJ, Re Human Fertilisation And Embryology Act 2008 [2017] EWHC 3351 (Fam)

Applications for declarations of parentage in accordance with s.55A of the Family Law Act 1986 where children had been born following treatment at a fertility clinic but statutory requirements had not been complied with.

The President of the Family Division was concerned with the 36th and 37th cases in a "dismal line" of applications following his judgment in In re A and others (Legal Parenthood: Written Consents) [2015] EWHC 2602 (Fam). The two cases, AI and AJ were unrelated. In each case, the applicant, X was a man who was not, at the relevant time, married to the respondent mother, Y. X sought a declaration pursuant to section 55 of the Family Law Act 1986 that he is the legal parent of their child, C, in accordance with sections 36 and 37 of the Human Fertilisation and Embryology Act 2008.

The President found as fact in each case (1) that the treatment leading to C's birth was undertaken with full knowledge by both X and Y; (2) it was the intention of both X and Y that X would be C's legal parent; (3) from the moment the pregnancy was confirmed and following birth, both X and Y believed X was the other parent of C; (4) X and Y registered C's birth in good faith that they were both C's parents; (5) the first they knew that anything was 'wrong' was when they were contacted by the clinic.

The case of AJ related to treatment provided by Royal Devon and Exeter NHS Foundation Trust. In this case, Y had not ticked the consent box at section 3.1 of the WP form. The facts of the case were identical to Re the Human Fertilisation and Embryology Act 2008 (Case J) [2016] EWHC 1330 (Fam), and the President quoted paragraph 15 of his judgment confirming that the identified defect in the completion of Form WP which had led to the litigation was "a simple undetected clerical error" and "can be 'corrected' as a matter of construction". The declaration was made in the terms sought. The clinic agreed to pay X's reasonable costs.

In the case of AI, the treatment was provided by Central Manchester University Hospitals NHS Foundation Trust. In this case the Form WP was correctly completed in all respects and signed by Y, save that in section 4, Y's date of birth was inserted rather than the date the Form WP was signed by her. This case was on all fours with Case D, In re A and others (Legal Parenthood: Written Consents) [2015] EWHC 2602 (Fam) and the President concluded in Case D "that this was a mistake is obvious, as is the 'correction' required to remedy the mistake" (para 78).

An additional issue arose in AI, that Y was at all material times married to a man referred to as S. Section 35(1) of the 2008 Act provides that where a woman undergoing treatment was party to a marriage then the husband "is to be treated as the father unless it is shown that he did not consent to the placing…of the embryo". This issue arose in Case G (Re the Human Fertilisation and Embryology Act 2008 (Case G) [2016] EWHC 729 (Fam) in respect of a civil partnership.

In Case G, it was clear the only parties involved in the treatment were X and Y, and there was no evidence S had knowledge of or consented to the treatment. There was no basis on which the court could conclude S consented, and it had been shown he did not consent (see para 26(ii) in Case G). The declaration as sought was made, and the clinic agreed to pay X's reasonable costs.

Summary by Sarah Tyler, barrister, Coram Chambers

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This judgment was handed down in open court

Case numbers omitted
Neutral Citation Number: [2017] EWHC 3351 (Fam)

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 20 December 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 AI and AJ)

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Ms Deirdre Fottrell QC (instructed by Goodman Ray) for the applicant in both cases
Ms Dorothea Gartland (instructed by Bevan Brittan LLP) for Central Manchester University Hospitals NHS Foundation Trust in Case AI

Hearing date: 15 December 2017
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Judgment
Sir James Munby, President of the Family Division :
1. On 15 December 2017 I heard, successively, the two latest cases – Case AJ and then Case AI – in the dismal line of such applications which have come before me since I handed down judgment in In re A and others (Legal Parenthood: Written Consents) [2015] EWHC 2602 (Fam), [2016] 1 WLR 1325. The most recent judgment was Re the Human Fertilisation and Embryology Act 2008 (Cases AK) [2017] EWHC 1154 (Fam). That was the thirty-fifth of these cases in which I have given a final judgment. The latest cases make thirty-seven in all.

2. For the parents – the human beings – involved, these cases, in which they had never expected to become embroiled, are of fundamental importance. Without ever losing sight of that human reality, however, and acutely conscious, as I am, of the stress, worry and anxiety burdening parents in such cases, and of the powerful human emotions that are inevitably engaged, each of these cases is, from a legal perspective, straight-forward and simple. As we shall see, they raise no new point of principal, and I can therefore be brief. Although they are entirely distinct, involving different clinics, it is convenient to deal with both cases in a single judgment.

Common ground

3. 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).

4. 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. The evidence, which there is no need for me to rehearse in detail, is compelling. The answer in each case, at the end of the day, is, in my judgment, clear.

5. In each case the applicant, X, is a man who was not, at the relevant time, married to the respondent mother, Y. In each case X seeks a declaration pursuant to section 55 of the Family Law Act 1986 that he is, in accordance with sections 36 and 37 of the Human Fertilisation and Embryology Act 2008, the legal parent of their child, C.      

6. 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 the child, 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 they were contacted by the clinic.

7. 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.

8. In each case, the clinic, the Human Fertilisation and Embryology Authority, the Secretary of State for Health and the Attorney General have all been notified of the proceedings. None has sought to be joined. Given the nature of the issues (see below) I decided in each case that there was no need for C to have a guardian appointed.

9. At the end of each of the hearings I indicated that I was making the order sought. I now (20 December 2017) hand down judgment explaining my reasons.

Case AJ
10. The case relates to treatment provided by Royal Devon and Exeter HNS Foundation Trust at a clinic regulated by the HFEA. As I have said, I heard the case on 15 December 2017. X was represented by Ms Deirdre Fottrell QC. The clinic was not formally represented but the "person responsible" was present to convey the clinic's apologies to X and Y. Neither X nor Y was present. There was no reason why they should have been. It was clear that Y was wholly supportive of X's application.

11. Adopting the terminology I have used in previous cases, the problem in this case is very shortly stated. The Form PP was correctly completed by X. The Form WP was correctly completed in all respects and signed by Y, save that the consent box at section 3.1 ("Your consent to your partner being the legal parent") has not been ticked. However, Y has completed and signed the declaration in section 4.

12. Ms Fottrell submits, and I agree, that the present case is on all fours with, in fact it is identical in all respects to, Re the Human Fertilisation and Embryology Act 2008 (Case J) [2016] EWHC 1330 (Fam). I need not repeat but merely adopt the analysis in Case J, paras 13-16. I should, however, quote part of what I said (para 15):

"That there has been a mistake in this case in the completion of the Form WP is obvious, for the very purpose of completing the form is to give the consent indicated by the placing of a ? in the relevant box. And it is plain what was meant. After all, Form WP is headed "Your consent to your partner being the legal parent." What did Y think she was doing when she completed and signed the Form WP, if not to give her "consent to [her] partner being the legal parent"? The answer is obvious: by signing the Form WP she intended to and believed she was giving that consent. The only defect in the completed document is … a simple undetected clerical error. In the present case … this obvious mistake can, in my judgment, be 'corrected' as a matter of construction, and without the need for rectification."

13. It was for these reasons that, at the conclusion of the hearing, I made a declaration in the terms sought by X. The clinic has very properly agreed to pay X's reasonable costs.

Case AI

14. The case relates to treatment provided by Central Manchester University Hospitals NHS Foundation Trust at a clinic regulated by the HFEA. As I have said, I heard the case on 15 December 2017. X was represented by Ms Fottrell, the clinic by Ms Dorothea Gartland. X and Y were both present, to hear Ms Gartland very properly saying how "profoundly sorry" the clinic was for what had happened. It was clear that Y was wholly supportive of X's application. There was, in view of the conclusion I had come to, no need for either X or Y to give oral evidence but in accordance with my invariable practice in these cases (see Re the Human Fertilisation and Embryology Act 2008 (Cases AD, AE, AF, AG and AH) (No 2) [2017] EWHC 1782 (Fam), para 12) I asked them if they wanted to speak. Neither did.

15. The problem in this case is very shortly stated. The Form PP was correctly completed by X. The Form WP was correctly completed in all respects and signed by Y, save that in section 4, the declaration signed by Y, the wrong date has been inserted: Y's date of birth rather than the date on which the Form WP was signed by her.

16. Ms Fottrell submits, and I agree, that the present case is on all fours with Case D, In re A and others (Legal Parenthood: Written Consents) [2015] EWHC 2602 (Fam), [2016] 1 WLR 1325, para 78. As I said there:

"The mother signed, at the appropriate time, a Form WP in proper form. Her partner signed a Form PP, at the appropriate time and in the proper form, except that she dated sections 4 and 5 with her date of birth rather than the date on which she signed it. That this was a mistake is obvious, as is the 'correction' required to remedy the mistake, for the correct date, established by the evidence, is that on which both the Form WP and the Form IC were signed. (I note in passing that the precise date is not material; what is vital is that the form was signed, as I am satisfied it was, before the treatment.)"

17. What goes for Form PP must, on this point, go also for Form WP, as Ms Gartland correctly submitted, referring to Case AG: see Re the Human Fertilisation and Embryology Act 2008 (Cases AD, AE, AF, AG and AH) [2017] EWHC 1026 (Fam), para 16:

"Both the Form PP and the Form WP were properly completed, with the sole exception that in section 4 on page 2 of the Form WP, Y filled in her date of birth where she should have inserted the date on which the document was being signed. That this obvious error is immaterial appears from Case D."

18. There is one other issue I need to address. Y was at all material times married to a man I shall refer to as S.

19. Section 35(1) of the 2008 Act provides that where the woman undergoing treatment was party to a marriage then the husband "is to be treated as the father unless it is shown that he did not consent to the placing … of the embryo." As Ms Fottrell points out, a similar issue arose in Re the Human Fertilisation and Embryology Act 2008 (Case G) [2016] EWHC 729 (Fam), paras 24-29, save that the mother in that case was in a civil partnership at the time of the treatment. That difference is immaterial. In the case of a civil partnership the corresponding provision is section 42(1) of the 2008 Act, but the critical language – "unless it is shown that [she/he] did not consent" – is identical.

20. I need not rehearse what I said in Case G. It is clear from all of the documents provided by the clinic that the only parties involved in the treatment here were X and Y. There is no evidence that S had knowledge of or consented to the treatment. On the contrary, X and Y are clear in their witness statements that S was wholly unaware of what was going on. It is clear that there is no basis on which the court could conclude that S consented. In fact it has been shown that he did not consent. That concludes the matter. As I said in Case G, para 26(ii):

"Section 42 of the 2008 Act creates a rebuttable presumption that consent exists in cases of marriage or civil partnership. The presumption can be rebutted by evidence which shows that consent has not been given."

21. It was for these reasons that, at the conclusion of the hearing, I made a declaration in the terms sought by X. The clinic has very properly agreed to pay X's reasonable costs.