![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales High Court (Family Division) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> P & Ors (Human Fertilisation And Embryology Act 2008) (No 2) [2017] EWHC 2532 (Fam) (13 October 2017) URL: https://www.bailii.org/ew/cases/EWHC/Fam/2017/2532.html Cite as: [2017] 4 WLR 183, [2017] EWHC 2532 (Fam), [2017] WLR(D) 671 |
[New search]
[Context]
[View without highlighting]
[Printable RTF version]
[View ICLR summary: [2017] WLR(D) 671]
[Buy ICLR report: [2017] 4 WLR 183]
[Help]
FAMILY DIVISION
Strand, London, WC2A 2LL |
||
B e f o r e :
____________________
In the matter of the Human Fertilisation and Embryology Act 2008 (Cases P, Q, R, S, T and U) (No 2) |
____________________
Goodman
Ray) for the applicants
Ms Sarah Morgan QC and Ms Sharon Segal (instructed by DAC Beachcroft LLP) for Care Fertility Group Manchester
Ms Eleena Misra (instructed by Blake Morgan LLP) for the Human Fertilisation and Embryology Authority
Ms Fiona Paterson (instructed by Berryman Lace Mawer) for Dr X
Hearing date: 18 July 2017
____________________
Crown Copyright ©
Sir James Munby, President of the Family Division :
"My reason for contacting you is that we have recently undertaken an audit of all consent forms undertaken in treatment such as yours and we have noted that the PP and WP forms necessary to confirm legal parenting are not dated on all of the pages. I enclose copies of the forms so that you can see this. Although this may seem to be a little 'nit-picking' and obviously the intent to being legal parents is there, I would be grateful if you could look through your records to see if you have an appropriately signed and dated copy of the PP and WP forms. If so I would be grateful if you could forward this to us in the stamped addressed envelope provided.
An alternative would be for you to sign the enclosed declarations, which confirm that you are aware of the implications of being legal parents.
Whilst I am sorry to bother you, these forms have been used in some legal cases in the past and therefore I think it very important that we get it right to avoid any ambiguity in this regard. Should you have any questions or queries please don't hesitate to let me know."
"I [name] confirm that I completed and signed the Consent to Legal Parenthood form WP (copy attached) on [date]. The form was completed before sperm, egg or embryo transfer which took place on [date]. I confirm, before completing this form, I was provided with all the relevant information needed to make a full informed decision about my partner being the legal parent of any client born from my treatment including information about:
• The different options set out in the WP form
• The implications of me giving my consent
• The consequences of withdrawing this consent, and
• How I can make changes to, or withdraw, my consent
• I was also provided with the opportunity to have counselling.
I acknowledge in completing the WP form I have, in error, omitted to date any of the boxes on the consent form. I confirm that in signing this form on [date] it was my first intention to consent to my partner being the legal parent of any child born from my treatment."
"In the time since we contacted you we have been speaking to our legal advisors. They have recommended that we should contact you again to explain in more detail the options that are open to you (including completing a declaration as you were advised in our original correspondence) but before we do that, we want to get their opinion on the specific anomalies that we have found in your records and how they are likely to impact on your partner's status as legal parent."
"You may wish to complete a statement clarifying what your intention was at the time you completed the form. I have attached a statement to this letter should you wish to consider and complete this. The statement explains that omitting to sign the declaration on page 3 of the PP form was a simple error and you intended to consent to legal parenthood on the date when the form as [sic] completed.
Completing the statement will clarify what your intention was at the time of when the WPP [sic] form was completed. However this statement may not give you legal certainty or resolve any potential problems with legal parenthood. It cannot guarantee that there will be no future challenges to your legal parenthood. For this reason we suggest obtain your own independent legal advice for certainty."
"As In re A demonstrates, the ultimate question is whether X has, within the meaning of sections 44(1)(a) and 44(2) of the 2008 Act, "given … a notice [in writing .. signed by [X]] stating that [X] consents to [X] being treated as the parent of any child resulting from treatment provided to [Y]."
Moreover, the word "may" was, it seems to me, insufficient in circumstances which surely demanded plain words rather than "Nods, and becks, and wreathed smiles."
"The question of who, in law, is or are the parent(s) of a child born as a result of treatment carried out under this legislation … is, as a moment's reflection will make obvious, a question of the most fundamental gravity and importance. What, after all, to any child, to any parent, never mind to future generations and indeed to society at large, can be more important, emotionally, psychologically, socially and legally, than the answer to the question: Who is my parent? Is this my child?"
"A parental order allows the reality for [the children] to be formalised now and bestows a sense of finality and completeness. It closes the door on official challenges to the intended parents' authority and paves the way for the future without … further anxiety."
Similarly, a declaration puts matters on a secure legal footing. It affords both child and parent lifelong security. It puts beyond future dispute, whether by public bodies or private individuals, the child's legal relationship with the parent as being, indeed, his legal parent.
"Ms Walsh [she was the Senior Inspector who, with colleagues, undertook the inspection of the clinic in March 2016] has set out in her statement the facts and circumstances surrounding Care Manchester's ill-advised decision to try resolving the parenthood issues by getting patients to sign a declaration. As Ms Walsh has said, we were not aware that the clinic intended doing this until after they had already sent out a number of those declarations to patients. Whilst we were not aware of Care Manchester's intentions to use this declaration, following the judgment in the Alphabet case [In re A] we had been informed by a number of clinics that on legal advice, they were asking a small number of patients to complete declarations.
These clinics told us that some patients had, having been fully informed of the potential consequences and impact of the consent failings, said that they did not wish to go through any legal process in order to become the legal parents of their own children. Understandably, some patients were affronted at the suggestion that they were not legally the parents of their children. In such cases, a small number of clinics informed us that on legal advice, they had asked these patients to complete a declaration. These clinics and a legal advisor acting for several clinics, told us that the purpose of this declaration was to record the intentions of the couple at the time of their treatment, that is, a way of confirming that at the time that the couple had treatment, and notwithstanding any anomalies in their consent forms, they had intended to have treatment together and for both to be the legal parents of the children born from such treatment.
Clinics told us that this was a measure their legal advice suggested they put in place in order that in the future, should these couples separate, for example, and have to grapple with issues around the custody and care of their children, the clinics would have these signed declarations which could be relied on at that time, albeit with uncertainty as to the status of such a declaration. Whilst I expressed some concern about such an approach, and felt unease, I was assured the clinics did so on the basis of legal advice, and then only in those cases where patients had said that they did not wish to go through a court process in order to become the legal parents of their children. Having advised clinics to take their own legal advice, and now having done so, I felt we were not in a position to question that advice. Similarly, not having any method of communicating with this group of patients directly and also taking it on trust and good faith that the legal advice was sound and that clinics were acting in the interests of their patients, we felt we could not question the clinic's approach and the decision these patients had taken to sign declarations."