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Court rules in favour of parents who were told they could not be the legal parents of their child

President grants declarations of parentage

In In the matter of HFEA 2008 (Cases A, B, C, D, E, F, G and H Declaration of Parentage) [2015] EWHC 2602 (Fam)A court has heard that a significant number of parents across the UK, who have had a child by way of donor insemination, were told by the clinic that treated them that they could not be a parent to their child because of an administrative error.

The High Court has now decided that that it would not be right to deprive a child and parents of a legal relationship because of an administrative error that had been made with their paperwork. The President of the Family Division, Sir James Munby, said that the important issue was that there was written and informed consent as required by the law.     

Following an audit last year, affected families across the UK were advised, in some cases years after their child had been born, that they should adopt their own children,. The regulator of UK fertility clinics, the Human Fertilisation and Embryology Authority (HFEA), found almost half of all clinics in the UK reported administrative errors after a change in the law in 2009.

Results revealed that some clinics had lost the forms which had been signed by parents, some forms had mistakes on them and some clinics did not use the forms at all. It appears this involved more than 80 families.

Six years ago, the law changed and unmarried parents and parents not in a civil partnership undertaking fertility treatment using donor sperm or embryos, were legally obliged to confirm in writing  to their clinic who the legal parents of the child would be.

Clinics were told by the HFEA (the Regulator) that they had to use a specific form for this information and provide guidance around the taking of consent to parenthood.

Parents took their concerns to the High Court  and sought a declaration that  they were in fact the legal parents of their child, despite problems with the forms. 

The President of the Family Division heard evidence that he described as

"some of the most powerful, the most moving and the most emotionally challenging that I have ever heard as a judge".

He described the devastating emotions felt by the parents told that they were not a parent to their child. In some cases, it had taken many years of treatment for the child to be conceived. The Judge has described the results of the audit as "alarming and shocking" and "a matter of great public concern".

Jemma Dally, a partner and specialist in fertility law at Goodman Ray solicitors, who represents six of the eight families involved in the recent case, said:

"This judgment is about the essential question of who is my parent?   This is important for any child, but especially for donor conceived children who do not have a biological connection to one of their parents.

"The change in the law in 2009 was intended to ensure certainty about who the parents of a donor conceived child would be from the moment of the insemination or embryo transfer   These parents were entitled to and did rely on the professionals at the clinics to make sure that the administrative arrangements would be secure. It is clear that in some clinics staff did not fully understand the legal importance of taking consent to parenthood and the HFEA had not realised that the guidance that they had issued to clinics about this, was not always being followed.  

"The decision will not only secure the legal relationship of the children and parents involved in this case but also has wider significance as it is likely to help many other families that we know are in the same position."

The judgment also confirms the imperative need for all clinics to comply with the HFEA's guidance at all times, including in respect of the use of the right forms.

Jemma Dally added:

"It is essential that any parent in this situation seeks specialist legal advice.  There is a risk to children if proper steps are not taken to remedy the errors that have been made.   Legal parenthood is important for a child's identity and if left unresolved could have profound consequences for the child in the future."