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Home > Judgments > 2019 archive

PQ v RS and others (Legal Parenthood: Written consent) [2019] EWFC 65

The court was concerned with cross applications for a declaration. PQ applied for a declaration of parentage, RS applied for a declaration of non-parentage under s 55A Family Law Act 1986.

The applications relate to two children, now aged 6. They were conceived following fertility treatment using donor sperm. At the time of conception in 2012 PQ and RS were in a relationship, they married two years later and separated in 2017.

PQ and RS agree that prior to any treatment, they both believed they were consenting to PQ becoming a parent of any child born as a result of the treatment, and they both believed they had signed whatever was legally required to ensure they were both became parents. They continued to believe this after the children were born, after they had jointly registered the children's birth naming PQ as the children's father.

In 2014 the Human Fertilisation and Embryology Agency ('HFEA') required registered clinics to carry out an audit of the consents to parenthood required by the provisions in the HFEA 2008. This resulted in the Clinic contacting PQ and RS stating their consent to being a legal parent form, Form PP, and had been incorrectly completed. The letter explained the consequences and what support they offered. PQ and RS met with the Clinic in 2014, and decided to take no further action.

After their separation in March 2017, PQ applied for a Child Arrangements Order in October 2017, and a declaration of parentage in April 2019. The Children Act proceedings were delayed pending the determination of the declaration of parentage- the Clinic agreed to fund both parties' costs for this application.

Legal Framework
Sections 25 to 41 HFEA 2008 provide a framework for the acquisition of parenthood by a non-biological father whose partner undergoes fertility treatment at a licenced UK clinic.

Section 36 HFEA 2008 provides a mechanism by which an unmarried male partner of a woman ('W') can acquire legal parenthood for a child conceived and born using donor sperm at a licenced UK clinic.

Section 36(b) HFEA 2008, provides that the male partner must meet 'the agreed fatherhood conditions' within section 37:

(1) The agreed fatherhood conditions referred to in section 36(b) are met in relation to a man ("M") in relation to treatment provided to W under a licence if, but only if,—

(a) M has given the person responsible a notice stating that he consents to being treated as the father of any child resulting from treatment provided to W under the licence,

(b) W has given the person responsible a notice stating that she consents to M being so treated,

(c) neither M nor W has, since giving notice under paragraph (a) or (b), given the person responsible notice of the withdrawal of M's or W's consent to M being so treated,

(d) W has not, since the giving of the notice under paragraph (b), given the person responsible—

(i) a further notice under that paragraph stating that she consents to another man being treated as the father of any resulting child, or

(ii) a notice under section 44(1)(b) stating that she consents to a woman being treated as a parent of any resulting child, and

(e) W and M are not within prohibited degrees of relationship in relation to each other.

(2) A notice under subsection (1)(a), (b) or (c) must be in writing and must be signed by the person giving it.

The effect being, if the conditions are fulfilled, legal parentage is crystallised at the point at which the fertility treatment takes place. This was confirmed by Sir James Munby in Re HFEA 2008 (Cases A, B, C, D, E, F, G and H) [2017] 1 FLR 366. This reflects the intentions behind section 35 to 41, to ensure legal certainty at the time of the child's birth.

According to a series of cases following these mistakes being discovered the following principles have been established:

(1) The court can, in appropriate cases, correct mistakes on the face of the documents.

(2) This is permissible if the mistake is 'obvious on the face of the document and it is plain what was meant' (see In the matter of HFEA 2008 (cases A-H, Declaration of Parentage) [2015] EWHC 2602 (Fam))

(3) The court can do this by way of construction or rectification (see Re Y, Z, AA, AB and AC [2017] EWHC 784 (Fam) [11]).

(4) In either case (correction or rectification) the fact of the parties separation is 'legally irrelevant…for…the legal status of all parties finally and irrevocably crystallised at the moment when the embryo or the sperm and eggs were placed in the mother, or the mother was artificially inseminated, and this treatment resulted in the birth of the child' (see Re Y, Z, AA, AB and AC [2017] EWHC 784 (Fam) [65])

At a Directions hearing, the parties agreed the following:

(1) Both PQ and RS believed they were consenting to PQ becoming the parent of any child born as a result of the treatment at the Clinic, and

(2) Both PQ and RS believed they had signed whatever was legally required, to ensure they both became parents, and

(3) Both PQ and RS continued to believe the above, after the children's birth and after they jointly registered the children's births naming PQ as the children's father on their birth certificates,

(4) PQ wrote to the CMS on 10.11.17 stating that he had obtained written confirmation from the Clinic that he was not the legal parent of the children. He enclosed the Clinic's letter dated 8.11.17.

The HEFA and Secretary of State for Health and Social Care (SSHSC) were given notice of the applications and both confirmed they did not wish to make any representations or apply to intervene.

The children were joined as parties and a Guardian reported on the issue of parentage. Her report stated that both PQ and RS both intended to have joint parentage, and had subsequently used the clinic's error in their ongoing private law dispute. The Guardian concluded that,

'A declaration will serve to resolve the uncertainty about PQ's legal position and will afford both children the permanence and security of having two legal parents. It will also give effect to the legal relationship that had always been intended when the parents embarked on the fertility treatment.'

On behalf of RS, much was made of PQ's 'conduct' after the parties' separation, including the delay in bringing the application, and that at times, PQ has sought to deny he is a parent, and this has been relied upon by third parties. RS submitted that because the rectification is a discretionary equitable remedy, it should be denied.

In 2017, RS had changed the children's names by deed poll and had informed the children 'how they had been born' telling them PQ was not their biological father, but had been living with them at the time they were born. PQ had seen the children only a handful of times since separation and had successfully challenged RS' application for child maintenance through the CMS as he was not the father of the children.

On behalf of the Children's Guardian, and PQ, submissions were made that the court should be concerned with what the parties' intentions were at the time the consents were signed. They state, that whilst 'conduct' may be relevant to the Children Act Proceedings, it is not for the declaration of parentage.

In this case the Form PP had been filled in incorrectly so that PQ and RS's names were in the wrong part. There is no evidence to suggest this was anything other than a mistake, and the clinic did not pick up on this at the time. It was only as a result of the audit that the error was identified.

The judge decided that the errors in the form are clear and obvious mistakes, and the court has jurisdiction to correct these mistakes by transposing the parties' names into the correct sections on the PP form. The purpose of rectification is to permit equity to rectify the terms in the written instrument, namely the PP form, so as to make it accord with the true agreement of the parties at the time. The judge agreed that the focus of the court's concern is the parties' common intention at the time, as this is when the status crystallises. The judge therefore made a declaration of parentage in favour of PQ and dismissed RS's application for non-parentage.


Summary by Harriet Dudbridge, barrister, St John's Chambers

You can read full judgment of PQ v RS and others (Legal Parenthood: Written consent) [2019] EWFC 65 on BAILII