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Re AL (Human Fertilisation and Embryology Act 2008) [2018] EWHC 1300 (Fam)

Successful application pursuant to s.55 of the Family Law Act 1986 for a declaration of legal parentage.

X, the applicant, is a man who was not, at the relevant time, married to the respondent mother, Y. X sought a declaration pursuant to s.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. 

Y (whom he subsequently married) was wholly supportive of X's application. At the conclusion the declaration was granted by the court.

The President indicated that this was the thirty eighth such case that he had determined. He pointed to the stress, worry and anxiety burdening parents and highlighted the" fear" experienced by parents that they might lose their child when such unacceptable bureaucratic incompetence was discovered.

The President referred to his previous judgments in re A and others (Legal Parenthood: Written Consents) [2015] EWHC 2602 (Fam) and the summary of the background to all this litigation which appears in Re Human Fertilisation and Embryology Act 2008 (Case O) [2016] EWHC 2273 (Fam).
The President found that the treatment was embarked upon and carried through with full knowledge of both women. Furthermore, from the outset of the treatment it was intended that both X and Y would be the legal parents of C. From the moment the pregnancy was confirmed both X and Y believed that X was the other parent of the child. 

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. The first they knew that anything was "wrong" was when they were contacted by the clinic.

The treatment was provided by a clinic regulated by the HFEA. The clinic discovered after the birth of C that there was an irregularity in respect of the relevant forms. No form WP (a consent form) had ever been completed by the clinic.

The President was satisfied that another form (referred to as a Form IC), sufficed to entitle X to the relief he sought.  The form included the important words; "I am the partner of [Y] and I consent to the course of treatment outlined above. I understand that I will become the legal parent of any resulting child." The form was signed by X.

The judge accepted the following submissions on behalf of the applicant:

i) A Form IC in this form was capable of sufficing to meet, and in the present case did suffice to meet, the statutory requirements set out in section 37 of the 2008 Act:

ii) The fact that the Form IC was executed before the coming into force of the 2008 Act was not relevant.

Summary by Shiva Ancliffe, barrister, Coram Chambers
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Neutral Citation Number: [2018] EWHC 1300 (Fam)
Case number omitted

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION


Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 25 May 2018


Before :

SIR JAMES MUNBY PRESIDENT OF THE FAMILY DIVISION

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In the Matter of the Human Fertilisation and Embryology Act 2008
(Case AL)

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Ms Deirdre Fottrell QC (instructed by Goodman Ray) for the applicant

Hearing date: 18 May 2018
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Judgment Approved

This judgment was handed down in open court

Sir James Munby, President of the Family Division :
1. This case – Case AL – is the latest in the long 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. It is the thirty-eighth of these cases in which I have given a final judgment.

2. For the parents – the human beings – involved in this case, something which they had never expected to have to endure, it is 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 – a matter to which I must return below – this case is, from a legal perspective, straight-forward and simple. It raises no new point of principle, and I can therefore be brief.

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 Human Fertilisation and Embryology Act 2008 (Case O) [2016] EWHC 2273 (Fam), [2016] 4 WLR 148. For reasons which will by now be familiar, I propose to be extremely sparing in what I say of the facts and the evidence. The evidence, which there is no need for me to rehearse in detail, is clear and compelling. The answer at the end of the day is, in my judgment, clear.

4. The applicant, X, is a man who was not, at the relevant time, married to the respondent mother, Y. 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.      

5. Just as in each of the other cases I have had to consider, so in this case, 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.

6. 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.

7. 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 that there was no need for C to have a guardian appointed.

8. At the end of the hearing on 18 May 2018 I indicated that I was making the order sought. I now (xx May 2018) hand down judgment explaining my reasons.

9. The case relates to treatment provided by South East Fertility Clinic, now known as CARE Fertility Tunbridge Wells, a clinic regulated by the HFEA. X was represented by Ms Deirdre Fottrell QC. It was clear that Y was wholly supportive of X's application. Both were present at the hearing. There was, in view of the conclusion I had come to, no need for either X or Y to give oral evidence and neither did.

10. Adopting the terminology I have used in previous cases, the problem in this case is very shortly stated. There is no Form WP. No Form WP can be found in the clinic's files nor is there any clear evidence that a Form WP was ever completed. Ms Fottrell is content to proceed on the basis that there never was a completed Form WP. The Form PP was completed by X. There are certain irregularities in the Form PP, though of a kind which previous judgments indicate would probably not be fatal. There is, however, no need to explore this aspect of the matter any further for, absent a Form WP, the existence of a Form PP is not sufficient.

11. Ms Fottrell points to an internal consent form (what in the authorities is referred to as a Form IC) which, she submits, suffices to entitle X to the relief he seeks. It is, like others, in 'composite' form, covering a number of different topics. Importantly it includes, under the heading "Partner's consent", the following text:

"I am the partner of [Y] and I consent to the course of treatment outlined above. I understand that I will become the legal parent of any resulting child."

Immediately below that, X has written his signature. On the next page of the form there appear, in juxtaposition, the signatures of both X and Y. It is to be noted that the Form C was signed before the coming into force of the 2008 Act.

12. In these circumstances, Ms Fottrell makes two submissions, each of which I have no hesitation in accepting:

i) A Form IC in this form is capable of sufficing to meet, and in the present case does suffice to meet, the statutory requirements set out in section 37 of the 2008 Act: see In re A and others (Legal Parenthood: Written Consents) [2015] EWHC 2602 (Fam), [2016] 1 WLR 1325, para 63(iii), and a number of subsequent cases, which there is no need for me to enumerate, where the same point has come up.

ii) The fact that the Form IC was executed before the coming into force of the 2008 Act is neither here nor there: see Re Human Fertilisation and Embryology Act 2008 (Case I) [2016] EWHC 791 (Fam), [2017] 1 FLR 998, paras 16-19.   

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, which it is right to record has behaved very well throughout since it discovered its error, has very properly agreed to pay X's reasonable costs.

14. There is one matter I must record. In his witness statement X records his reaction when first told by the clinic that there was a problem regarding the paperwork. "I remember feeling very fearful and frightened about [C] being taken away from us." To a lawyer familiar with this part of the law it would be obvious that there was never the slightest prospect of that happening; but the father's reaction is vivid illustration of just how very distressing, alarming, indeed frightening it can be for an ordinary person suddenly and unexpectedly to be confronted with the news, perhaps, as in this case, some years after the birth of a much-loved child, that there is something wrong with the paperwork. In previous judgments, I have recorded the, often harrowing, words of other parents similarly and suddenly confronted with such news. No parent should ever be put in such a situation because of this kind of bureaucratic incompetence.