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Legal Parenthood: Modern Problems, Old Solutions – A review of The HFEA (A and Others) [2015] EWHC 2602

Deirdre Fottrell QC, 1 Garden Court Chambers, and Jemma Dally, Partner, Goodman Ray LLP, explain the factual background and legal issues involved in the President’s recent judgment in The Matter of the HFEA (A and Others)

Deirdre Fottrell QC, 1 Garden Court Family Law ChambersJemma Dally, Partner, Goodman Ray LLP

Deirdre Fottrell QC, 1 Garden Court Family Law Chambers, and Jemma Dally, Partner, Goodman Ray LLP

This article reviews the decision of the President in the case of The Matter of the HFEA (A and Others) [2015] EWHC 2602   The central issue in the case concerned the acquisition of legal parenthood and, in particular, the interpretation of the provisions of the Act governing consent to parenthood in respect of children conceived using donor sperm.

Factual background
The applications before the court were for declarations of parentage under s.55 A of the Family Law Act 1986.  The seven applicants were parents of children conceived following IVF treatment using donor sperm.   Five of the applicants were male and two were female.   Each applicant had, at the time of the birth of their child, understood that they were the legal parents of their children, having thought they had complied with the relevant legal requirements to acquire parenthood.  All of the families had been treated at licensed fertility clinics in England.

However, in each case the clinics had made administrative errors in the taking of the parents' consent as to who the legal parents of the child would be. It was not for months and, in some cases, years after the child had been born that the families were notified by the clinics that, due to an anomaly in the completion of consent to parenthood forms prior to treatment, they were not in fact the legal parents of their children.  In most cases the clinics had advised the parents that the only legal remedy available to them was to adopt their own child.

The law
The cases occurred against the legislative backdrop of the amendments to the HFEA 2008.  On 6th April 2009 the Human Fertilisation and Embryology Act 2008 came into force.  It created a mechanism whereby the partner (male or female) of the birth mother of a child conceived by way of assisted reproduction using donor sperm or embryos can acquire legal parenthood from birth, provided certain conditions are met.

The Act has to be read with the accompanying guidance which included the following:

a. A Code of Practice which sets out in greater detail the conditions to be met in respect of treatment, parenthood and the role of licensed clinics (including the conditions of licence).

b. The Guidance produced by the Authority.

c. Directions.

d. Letters from the Chair and from the Chief Executive of the Authority.
Sections 36 and 37 HFEA set out the conditions which are to be satisfied before a male partner can be considered the parent of a child conceived as a result of fertility treatment. Sections 43 and 44 set out in similar terms the conditions for a female parent.

There are six conditions set out in ss.36, 37, 43 and 44.  These are:

a. The father/parent has given notice that they consent to being treated as the father/parent of a child resulting from treatment (s.37(1)(a) and s.44(1)(a)).

b. The mother has given notice to the person responsible that she consents to the father/parent being so treated (s.37(1)(b) and s.44(1)(b)).

c. Neither the mother nor the father/parent has withdrawn that notice (s.37(1)(c) and s.44(1)(c)).

d. Neither has given notice in the same terms in respect of another father/parent being treated as the father/parent of the child (s.37(1)(d) and s.44(1)(d)).

e. They are not within prohibited degrees of relationship to each other (s.37(1)(e) and s.44(1)(e)).

f. The notices are in writing and are signed (s.37(2) and s.44(2)).

Treatment under licence requires that the licence conditions set out in s.12-15 of the 2008 Act are met.  Offering counselling is a condition of the licence.  Section 23 of the Act provides that the Authority may from time to time give directions for any purpose. Section 23(2) confirms that

"A person to whom any requirement contained in directions is applicable shall comply with the requirement"

It is these parenthood/fatherhood conditions in ss37 and 44 that were introduced for the first time when the HFEA 2008 came into force on 6th April 2009. In 2009, the HFEA issued a direction making it mandatory for the clinics to use particular forms (WP and PP) when taking consent from parents, to ensure that the conditions were met.

On 10th February 2014, the Chief Executive of the HFEA required clinics to carry out an audit of their records of patients who were not married or in a civil partnership and who had received treatment. The catalyst for that request was the decision of Cobb J in AB v CD and the Z Fertility Clinic [2013] EWHC 1418, [2013] 2 FLR 1357 in which a biological mother had obtained a declaration that the other parent was not a legal parent due to the parties not having signed the relevant consent to parenthood forms in advance of treatment.    It was this case that brought to the attention of the HFEA the shortcomings in clinic Z in respect of the taking of consent to legal parenthood.

The HFEA requested all clinics to report the results of their audit by May 2014.   The audit disclosed anomalies in 51 out of 107 clinics, almost half of all clinics in the UK.

At paragraph 8 of his judgment, the President referred to the picture which emerged from the audits as 'alarming and shocking'.  In particular, he queried whether the Authority had adequately discharged its regulatory functions or whether the issue was that the regulatory powers under the Act were not sufficiently robust. 

In the applications before the court, there were three different categories of anomalies that were considered by the President.  The first were cases in which the forms may have been signed but appeared to have been lost.  The second category were cases in which the parents had given signed and written consent on 'internal' forms used by clinics but not on the HFEA mandated WP and PP forms.  The third category were cases in which the WP and/or PP forms contained obvious errors such as the wrong date being inserted as to when it was signed.

The legal issue
The consequence of the anomalies in all cases is that the consent to legal parenthood was not properly obtained and the non biological parent had no legal relationship with their child.  The central issue in the case was whether that position could be remedied by the making of declarations of parentage orders.

In AB v CD, Cobb J had made a declaration that the non biological parent was not the legal parent but in circumstances which were markedly different from the current cases. In that case, the biological mother did not accept that valid consent had been given by either party.  The factual evidence in the case also led the court to conclude that any consent to the grant of parenthood was not (in the circumstances of this case), informed consent because the clinic did not provide the parties with an opportunity to receive counselling in advance of treatment. In addition, in this case, the consent was not given before the insemination/embryo transfer as required.

In X v Y (St Bartholomew's Hospital Centre for Reproductive Medicine (CRM) intervening) [2015] EWFC 13 the necessary consent on the PP form signed by the father relating to parenthood prior to treatment as required by s.37 HFEA 2008 was not on the clinic's file. Theis J found on the facts that that it was more likely than not that the father had signed the necessary consent form but that it had subsequently been mislaid by the clinic. Theis J further concluded that the breach of record keeping did not invalidate the clinic's licence in the circumstances of the case, so that the treatment was 'provided under a licence' as required s.37 (1) HFEA 2008.

The President considered that the cases raised three general issues of principle, which he set out in paragraphs 44-63 of his judgment. 

The first was whether it was possible to prove by parol evidence that a WP or PP form which cannot be found had been executed in a manner consistent with the statutory requirements.   Following the approach taken by Theis J in X and Y, he concluded that the question in such cases was a factual one and could be resolved by making findings on factual evidence.   In such circumstances, the court had to be satisfied the form (which was lost) had been signed before treatment.  This was the approach the Court took in cases A, B, E, F and H.

The second issue arose where there were errors on the forms, whether those errors could be 'corrected'.   The President considered this to be a novel point which could be decided using long established principles of construction.  He concluded that a mistake could be corrected if the mistake was obvious on the face of the document, and it was plain as to what was meant. 

The third issue was whether internal consent forms which contained some but not all of the language of the WP/PP forms were sufficient to meet the statutory requirements.  The President looked back at the statutory scheme as set out in both the 1990 Act and the 2008 Act.  He concluded that a failure to comply with the HFEA's direction that a Form WP and Form PP "must" be used cannot invalidate consent that has been given in accordance with  what set out in sections 37 or 44 of the 2008 Act.  The Act does not prescribe a form to be used.   What is required under these sections is a "notice" in writing and signed.   The President concluded that what is required is compliance with the substance and not "slavish adherence to a form".
In accordance with these principles, the President granted the declarations sought in each of the cases.   

It is clear from the HFEA audit that there are many other parents whose legal parenthood was not properly acquired.  The decision in these cases is clear that each future case will turn on its facts but it appears that most cases can be resolved by the application of the principles set out in this judgment.

At the conclusion of the judgment, the President made three observations regarding the regulation of the HFEA and the practices within clinics.    The wider implications of this case relate to the HFEA and whether the Authority has failed in its regulatory duties or, in the alternative, whether the Authority's regulatory powers are sufficiently robust to supervise clinics.


Deirdre Fottrell QC and Jemma Dally represented applicants A-E in the case of A and others.