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C (Declaration of Parentage Written Consent), Re [2019] EWHC 648 (Fam) (12 February 2019)

Application for a Declaration of Parentage following administrative errors by the fertility clinic

C was conceived following IVF treatment at a fertility clinic in Newcastle. The embryo transfer took place after the Human Fertilisation and Embryology Act 2008 came into effect, at a time when M and W were in a same sex relationship and had been receiving treatment from the clinic for a number of years. M and W separated and an issue subsequently arose as to C's status in relation to W.

The issue in the proceedings was similar to that in a long line of cases arising from administrative errors made by fertility clinics. There was no evidence that M or W signed Forms WP and PP, prescribed by the HFEA as the means of providing the notice required for W to satisfy the female parenthood conditions in section 44 HFEA 2008. There was an internal consent ("IC") form signed in March 2008, prior to the coming into effect of the HFEA 2008.

The issue for determination was whether the court could make a declaration that W is the legal parent of C on the basis of a form signed by M and W before the changes introduced under the HFEA 2008 which made it legally possible for W to be the parent of C from birth.

The clinic accepted that this issue arose as a result of its administrative errors. The following was agreed between all parties:

i. M and W believed that they were consenting to W becoming the parent of any child born as a result of the treatment at the clinic.

ii. M and W believed that they had signed whatever was legally required to ensure that they both became parents.

iii. M and W continued to believe this after C's birth, at least until they attempted to register C's birth.

At paragraph 36, Theis J provides a helpful summary of the principles articulated by Munby P in Re A and Others [2017] 1 FLR 366, and at paragraph 37 summarises how these have been applied in subsequent cases.

Theis J accepted that she was able to make the declaration of parentage and did so. In summary, her reasons for doing so were as follows:

i. Theis J accepted that the IC form signed in March 2008 was understood and intended to mean that W would be regarded as C's legal parent. That is the effect of what is said in the documents. It is clear that it establishes legal parenthood. Applying Re A and Others, the court was able to rectify references to "father" to read "partner".

ii. There is nothing in section 44 HFEA 2008, any of the transitional provisions, or the HFEA Code of Practice which required M and W to sign fresh consents after the implementation of the HFEA 2008.

iii. The court is entitled to take into account the purpose of the changes brought about by the HFEA 2008, namely 'to enable a greater range of persons to be recognised as parents following assisted reproduction'. Any analysis that treated consent given to be a parent differently prior to the coming into force of the HFEA 2008 depending on whether the second parent is male or female is potentially discriminatory and falls within a parent's Article 8 and 14 rights.

iv. The court also took into account the child's identity rights under Article 8 of the United Nations Convention on the Rights of the Child, as required following ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4.

Theis J also made an order pursuant to section 4ZA of the Children Act 1989 conferring parental responsibility on W.

Summary by Tom Wilson, barrister, 1GC Family Law 

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