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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Rose & Anor v Secretary of State for Health Human Fertilisation and Embryology Authority  EWHC 1593 (Admin) (26 July 2002)
Cite as:  EWHC 1593 (Admin)
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QUEEN’S BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| ROSE AND ANOTHER||Claimants|
|- and -|
|SECRETARY OF STATE FOR HEALTH|
HUMAN FERTILISATION AND EMBRYOLOGY AUTHORITY
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Nigel Giffin (instructed by Solicitor, Department of Health) for the First Defendant
Ms Dinah Rose (instructed by Morgan Cole) for the Second Defendant
AS APPROVED BY THE COURT
Crown Copyright ©
Mr Justice Scott Baker
“I feel that these genetic connections are very important to me, socially, emotionally, medically, and even spiritually. I believe it to be no exaggeration that non-identifying information will assist me in forming a fuller sense of self or identity and answer questions that I have been asking for a long time. I am angry that it has been assumed that this would not be the case, and can see no responsible logic for this (given the usual pre-eminence accorded to the rights and welfare of the child), unless it is believed that if we are created artificially we will not have the natural need to know to whom we are related. I feel intense grief and loss, for the fact that I do not know my genetic father and his family. There is no closure for me, as I assume these people are not dead. In addition there is no comfort for this, as there is little social recognition of this significance or grief. I live with the uncertainty of a reunion being possible, though unlikely, and of even unknowingly passing my biological father or siblings in the street. I wonder if we would recognise each other. I wonder if they think of me, and if they do how and where there would communicate this.
Lack of knowledge and openness also forces me into unhappy or inappropriate pigeon holes. I have been using my social father’s medical history as a child (even though it has no conceivable relevance to me), and, if it were not for my parents’ honesty, I would have been led to do so for the rest of my life. I am fortunate that my parents were as honest with me as they were, even if what they told was very traumatic for me. I feel that this lack of information is potentially very dangerous. Someone who is conceived through donor insemination should, I believe, live their life according to accurate genetic information about themselves (e.g. about genetic propensity to certain illnesses, heart disease, birth defects in children conceived with certain genetic characteristics etc). This information needs to be provided throughout the course of their life and should be regularly updated as new information is discovered. Such dangerous mis-information is re-enforced by birth certificates which do not reflect someone’s true genetic identity.
With the revelation of my donor conception I am now unable to complete medical history forms whenever I have to complete them. I do not know about half of my ethnicity or racial identity. In addition this will not just affect me. If I have children then I will only have half of my genetic and hereditary roots to pass on to my offspring. Clearly the establishment of a retrospective register, and the safe keeping of my records, is something that I am compelled to seek.
As mentioned above, I find the fact that I do not have this missing genealogical picture very distressing. I have had counselling to deal with some of these feelings and feel that I am now ready for information to be provided to me. Without this information these feelings of distress and inequality will not go away. The need to discover this information has become a central feature of my life, along with the need for recognition for this. I need to find out more about my medical, genealogical and social heritage. Other people who come from families, where they have known both of their natural parents are able to discover this through the process of time. This includes information about their background and religion, where certain of their talents and skills may come from (e.g. parents or relations with musical or artistic skills), why they look the way they do etc. I have a strong need to discover what most people take for granted. While I was conceived to heal the pain of others (i.e. my parents’ inability to conceive children naturally), I do not feel that these are sufficient attempts to heal my pain.”
i) medical information particularly about diseases or illnesses that might be inherited;
ii) A thumbnail sketch about the donor, his profession, interests, hobbies, religion or beliefs, aptitude, aspirations and motivations for donating sperm. This would preferably be information provided by the donor himself;
iii) Information from the donor about whether he is willing to be contacted for any purposes ranging from providing the information in (i) and (ii), if necessary anonymously through a third party on a non-identifying basis, to meeting EM when she is older or corresponding with her.
She says in her evidence:
“I try to live my life as truthfully as I can, and I think that it is very important that we can be as honest with our daughter as possible. I believe that secrecy can be very destructive to individuals and to families and I would like to be able to protect our daughter as much as I can from this. I think that not knowing does prey on her mind, which is why she asks us so many questions. I am concerned that the questions will grow over time and she will not be able to have the answers to them. We want to be able to provide the answers to these very important questions. If in the future our daughter wanted to make contact with the donor then we would completely support her and help her in this.”
i) Article 8 of the E.C.H.R. is engaged in their quest for further information and this is so whether the information sought is of a non-identifying or identifying nature.
ii) Article 14, when read in conjunction with Article 8, is also engaged in relation to the discrimination that exists under the current regime first between A.I.D. offspring and adoptees and second between A.I.D. offspring like the first Claimant who was born before the present legal regime came into force through the 1990 Act and those born thereafter (like the second Claimant, EM).
iii) In order to discharge its duties under Articles 8 and 14, the state has a positive obligation to ensure that certain vital non-identifying information about donors is collected and made available to A.I.D. offspring both on maturity and to parents such as those of EM who wish to bring up their child in openness about the circumstances of its conception. This information includes the type of information I have referred to as the subject of EM’s mother’s particular concerns. This information, it is said, is routinely recorded in adoption cases.
iv) Also, the state must establish a voluntary contact register to facilitate the exchange of information and contact between willing A.I.D. offspring and willing donors. In the case of adoption such a register exists.
v) The failure to take these steps involves continuing breaches by the state of the Claimants’ rights under Articles 8 and 14. There is no justification for this failure. These limited steps do not involve the compulsory disclosure of the identity of the donor.
i) whether the matters at issue are such as to engage Article 8 of the E.C.H.R;
ii) to what extent the Secretary of State may rely on Section 6(6)(a) of the Human Rights Act of 1998 (“the 1998 Act”); and
iii) whether the Claimants’ arguments, if accepted, would be capable of justifying the making of a declaration of incompatibility.
The statutory background
Section 4(1)(b): Prohibition of the use of sperm in treatment services without a licence from the second Defendant (unless the woman and the man providing the sperm are being treated together.)
Section 5: Creation of H.F.E.A., the second Defendant.
Second 8: Functions of H.F.E.A. and in particular power to perform additional functions specified in delegated legislation.
Section 23: Power of H.F.E.A. to give directions.
Section 28: The woman’s husband or partner, not the donor, is treated as the father of the child.
Section 31(1): Requirement that H.F.E.A. keep a register of information of, amongst other things, the provision of treatment services (defined in Section 2).
Section 31(3),(4): Right of an adult (over 18) to know from H.F.E.A. whether he or she is an A.I.D. child and to be provided by H.F.E.A. with such further information (but no more) as regulations require, (at present there are no regulations).
Section 31(5): Regulations cannot require H.F.E.A. to disclose identifying information about a donor if the information was provided at a licensed clinic at a time when H.F.E.A. could not have been required to give information of that kind.
Section 31(6),(7): A person under the age of 18 has, in the event of pending marriage, the right to discover from H.F.E.A. whether he or she would or might be related to the intended spouse.
Section 33: Restrictions on disclosure of information by H.F.E.A. and existing or former employees. This is subject to specified exceptions. There is an issue about the extent to which this would prevent the disclosure of non-identifying information to the Claimants.
Section 45: Power of the Secretary of State to make regulations. Certain regulations require a positive prior resolution of both Houses of Parliament (Section 45(4)). Regulations made under Section 8 are not, however among them. Regulations made under Section 8 are subject to the annulment procedure.
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedom of others.
“In the opinion of the Commission ‘the file provided a substitute record for the memories, and experience of the parents of the child who is not in care.’ It no doubt contained information concerning highly personal aspects of the applicant’s childhood, development and history and thus could constitute his principal source of information about his past and formative years. Consequently lack of access thereto did raise issues under Article 8.
37.The court agrees with the Commission. The records contained in the file undoubtedly do relate to Mr Gaskin’s ‘private and family life’ in such a way that the question of his access thereto falls within the ambit of Article 8…….”
“although the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, there may in addition be positive obligations inherent in an effective ‘respect’ for family life.”
It then quoted, with apparent approval, that the Commission considered that ‘respect for private life’ requires that everyone should be able to establish details of their identity as individual human beings and that in principle they should not be obstructed by the authorities from obtaining such very basic information without specific justification.
The court in Gaskin found a breach of Article 8 saying at paragraph 49 that:
“…….persons in the situation of the applicant have a vital interest, protected by the Convention, in receiving the information necessary to know and understand their childhood and early development……...”
“….the records to which the applicant requests access, though not relating to his childhood, contain information of a personal nature relating to personally significant incidents in his life and, accordingly, considers that access to such records falls within Article 8 of the Convention.”
“52. The present case differs from the paternity cases cited above in so far as no family tie has been established between the applicant and her alleged father. The court reiterates, however, that Article 8, for its part, protects not only ‘family’ but also ‘private’ life.
53. Private life, in the Court’s view, includes a person’s physical and psychological integrity and can sometimes embrace aspects of an individual’s physical and social identity. Respect for ‘private life’ must also comprise to a certain degree the right to establish relationships with other human beings (see, mutatis mutandis, the Niemietz v Germany judgment of 16 December 1992, Series A no. 251-B, p.33, para 29).
There appears, furthermore, to be no reason of principle why the notion of ‘private life’ should be taken to exclude the determination of the legal relationship between a child born out of wedlock and her natural father.
54. The Court has held that respect for private life requires that everyone should be able to establish details of their identity as individual human beings and that an individual’s entitlement to such information is of importance because of its formative implications for his or her personality (see the Gaskin v United Kingdom judgment of 7 July 1989, Series A no.159, p.16, para 39).
55. In the instant case the applicant is a child born out of wedlock who is seeking, by means of judicial proceedings, to establish who her natural father is. The paternity proceedings which she has instituted are intended to determine her legal relationship with H.P. through the establishment of the biological truth. Consequently, there is a direct link between the establishment of paternity and the applicant’s private life.”
“The first issue is whether there is a family life in respect of which there may be a breach. The European Court of Human rights accepted in B v UK  1 FCR 289 that it is legitimate to treat married and unmarried fathers differently. Not every natural father has a right to respect for his family life with regard to every child of whom he may be the father (see also McMichael v UK  2 FCR 718.) The application of art 8(1) will depend upon the facts of each case. In K v UK (1986) 50 DR 199, the applicant was the natural father and the Commission said; ‘The question of the existence or non- existence of family life is essentially a question of fact depending upon the real existence in practice of close personal ties.’ ”
The President concluded that on the facts the father in one case should be consulted but that in the other case he should not.
“However, I find it difficult to see that respect for her private family life per se entitles the claimant to access to documents created before and shortly after the time she was adopted, many of which will have emanated from third parties such as the social services.”
I distinguished Gaskin where the material sought was about the applicant and related to his basic identity.
i) to collect and make available to A.I.D. offspring and their parents certain non-identifying information about the donor including blood type, medical history, social and family background, religion, skills and interests, occupation, reasons for donation, willingness to be approached for identification and willingness to provide updating information; and
ii) to establish a voluntary mechanism to facilitate the exchange of information and contact between willing A.I.D. offspring and willing donors, such as a voluntary contact register.
- This case is not concerned with family life at all; Article 8 does not protect potential family relationships. In any event the right for respect for family life imposes no obligation to ensure that families are happy.
- This case is really about the right to private life and within that the concept of the Claimants’ identity.
- There is no good reason of policy why the concept of private life should be extended. In particular, it cannot be defined so widely as to render meaningless ‘family life.’
- Martin adds nothing to Gaskin, and Mikulic is irrelevant on the issue of provision of non-identifying information.
- There is no general right of access to personal information (see Gaskin paragraph 37).
- The engagement of Article 8 in the present case would be a giant step from the existing European jurisprudence in particular Gaskin. Article 8 does not give a right to any information held about an individual. In this case the information sought is information about a third party who, as a matter of law, is not related to the Claimant.
- The Convention is intended to protect fundamental human rights; it is not a plaster for every ill.
- Private and family life is a flexible and elastic concept incapable of precise definition.
- Respect for private and family life can involve positive obligations on the state as well as protecting the individual against arbitrary interference by a public authority.
- Respect for private and family life requires that everyone should be able to establish details of their identity as individual human beings. This includes their origins and the opportunity to understand them. It also embraces their physical and social identity and psychological integrity.
- Respect for private and family life comprises to a certain degree the right to establish and develop relationships with other human beings.
- The fact that there is no existing relationship beyond an unidentified biological connection does not prevent Article 8 from biting.
Section 6(6)(a) of the Human Rights Act 1998
Justification for a declaration of incompatibility
“85. Here again, the position is not straightforward. The Convention violation now under consideration consists of a failure to provide access to a court as guaranteed by article 6(1). The absence of such provision means that English law may be incompatible with article 6(1). The United Kingdom maybe in breach of its treaty obligations regarding this article. But the absence of such a provision from a particular statute does not, in itself, mean that the statute is incompatible with article 6(1). Rather, this signifies at most the existence of a lacuna in the statute.
86. This is the position so far as the failure to comply with article 6(1) lies in the absence of effective machinery for protecting the civil rights of young children who have no parent or guardian able and willing to act for them. Such cases there is a statutory lacuna, not a statutory incompatibility.
87. The matter may stand differently regarding the inability, of parents and children alike, to challenge in court care decisions, however fundamental, made by a local authority while a care order is in force. This matter may stand differently because, judicial review apart, the opportunity to challenge such decisions in court would be in conflict in the scheme of the Children Act. This gives rise to yet another issue: whether inconsistency with a basic principle of the statute, as distinct from inconsistency with express provisions within the statute, gives rise to incompatibility for the purpose of section 4.”
He said the issue did not call for decision on the appeals under consideration and that he preferred to leave it open.
“I would be inclined simply to state that there is a gap in the legal assistance provided which, in certain very limited and specific circumstances, may lead to a breach of a Convention right, without making a formal Section 4 declaration. It would then be for the government to decide how, if at all, they think that the gap could best be bridged.”
1. The evidence before the court satisfies me that Article 8 of the E.C.H.R. is engaged in the circumstances of these Claimants. Whether or not there has been a breach of it is, I emphasise again, an entirely different matter and does not fall for consideration by the court at this stage.
2. Section 6(6)(a) is an answer to any complaint that the Secretary of State has failed to enact primary legislation or make regulations under Section 31(4)(a) of the 1990 Act. It is no answer to a failure to make regulations under Section 8(d).
3. It is not possible at this stage to rule one way or the other whether, if the Claimants’ arguments succeed, they will be entitled to a declaration of incompatibility. There is an open question of law, the resolution of which is dependent in part on the precise findings of the court and the conclusions to be drawn from them.
I shall hear submissions from counsel as to any consequential orders that are now required.