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Cite as: [2002] EWHC 1593 (Admin)

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Neutral Citation Number: [2002] EWHC 1593 (Admin)
Case No: CO/3802/01


Royal Courts of Justice
London, WC2A 2LL
26 July 2002

B e f o r e :


- and -


First Defendant

Second Defendant


(Transcript of the Handed Down Judgment of
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)


Ms Monica Carss-Frisk Q.C and Mr Tom De La Mare (instructed by Liberty) for the Claimants
Mr Nigel Giffin (instructed by Solicitor, Department of Health) for the First Defendant
Ms Dinah Rose (instructed by Morgan Cole) for the Second Defendant



Crown Copyright ©

    Mr Justice Scott Baker

  1. This case concerns the rights of children born as a result of artificial insemination by donor (‘A.I.D.’). There are two Claimants, Joanna Rose, an adult and EM who is a child represented by her mother as litigation friend. Their cases are being conducted by Liberty not only on their behalf but also on behalf of many others who have similar concerns to find out information about their biological parents.
  2. Joanna Rose was born in Reading in 1972, long before the Human Fertilisation and Embryology Act 1990 (“the 1990 Act”) and indeed well before the Warnock Committee on Human Fertilisation and Embryology whose report in 1984 led to the 1990 Act. At the time of her conception more or less complete secrecy was the order of the day but attitudes have changed a great deal during her lifetime. Fertility services were provided to her mother by Dr Boyd from his Harley Street practice and she has an older brother, Adam, who was born in 1966. He too is an A.I.D. child and was conceived as a result of fertility services at the same clinic albeit with sperm, it is believed, from a different donor.
  3. EM was born on 18 January 1996. Her mother had previously been treated for 13 months at St James’s University Hospital, Leeds. She is now six years old. All that is known of the donor is that he is six feet two inches tall, of medium build, has dark hair and hazel eyes and has an A positive blood group.
  4. Ms Rose lives in Brisbane, Australia. She has dual citizenship. She is single and has no children. For six months she worked full time at Link-up, an organisation working for indigenous Australians that reunites and supports children born to indigenous families, separated from those families and placed with white adopted parents or in institutions. She was struck by the similarity of identity issues in their cases with those in her own. She obtained a bachelor of social science degree in human services and then turned to a bachelor of arts honours course in applied ethics. She is currently completing a thesis on the problems and ethics in relation to donor conceived adults and hopes to follow this with a PhD in the same field.
  5. She discovered she was born as a result of donor insemination when she was about seven years old. The circumstances were distressing and are covered in her evidence. It is unnecessary for me to repeat them in this judgment. She was sworn to secrecy and felt grief, confusion and guilt. The issue became suppressed until adulthood. From about the mid 1980s first her family and then Ms Rose herself made persistent and determined efforts to obtain from Dr Boyd, and then from his son who took over possession of his records, non-identifying information about the donor. This yielded nothing and the present position is that there is no longer any information available. Any records that there were have been destroyed.
  6. Ms Rose pursued other avenues. She met by chance in Sydney a woman who turned out also to be an A.I.D. child from Dr Boyd’s clinic. They thought for a time that they might be half sisters but tests showed this to be improbable. Another contact was one of the sperm donors to Dr Boyd’s clinic, Dr Beeney. He was very helpful in trying to obtain information from Dr Boyd’s practice but again to no avail. Eventually Ms Rose was told that the records had been destroyed. Tests showed that Dr Beeney could not be Ms Rose’s father.
  7. Ms Rose says that in all of her searches one of the things that has concerned her is that she does not know to whom she is genetically related. At the time she was conceived there were no regulatory controls on the number of times any one donor’s sperm could be used to conceive children. Ms Rose describes the importance of the information to her in the following terms:
  8. “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.”
  9. She then continues to describe the effect on her family, home and private life. I have no reason to doubt the genuineness of her feelings or her statement that she is part of a growing tide of donor conceived adults who feel they have suffered damage from the current arrangements, both from the secrecy and from having large gaps in their self knowledge.
  10. The position of EM is different. In the first place she was born some years after the 1990 Act came into force. It took nine attempts for her mother to become pregnant and a different donor was used on each occasion. A fertility nurse told her mother that they would do their best to match her husband’s physical characteristics, but beyond giving this information to the hospital she had no role in the selection of the donors.
  11. During her pregnancy EM’s mother contacted the hospital seeking information about the donor and was given the information to which I have already referred, plus the fact that the donor was alive. No further information has been supplied either by the hospital, the Human Fertilisation and Embryology Authority (‘H.F.E.A.’) or anyone else.
  12. Ever since EM was born, her parents have been open and honest with her about her background and have told her she was created using donor sperm. She constantly asks questions and is very curious. She has a life story book designed by former members of the donor conception network. This explains how donor insemination works and why it exists. EM’s parents are not only open with EM but also with others within and outside the family. EM tells people she is special as she is a donor baby. She explains that her daddy did not have any sperm and so the sperm of another man had to be used. She says she would like to meet the man and constantly asks questions about him, what job he has, what he looks like and so forth. EM’s mother finds it very difficult to be able to answer all these questions.
  13. She says that she and her husband intend to pass on non-identifying information to EM as and when they consider it appropriate. In making parenting decisions now that may have repercussions later they wish to know the type of information to which EM will eventually have access so that they can react and anticipate it in a way that they feel appropriate. Parents need to ensure that their children are as well adjusted to their origins as possible. She identifies her particular concerns as:
  14. 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.”
  15. She says she feels strongly that she is prevented from being open with her daughter because of current legislation and that several of the main organisations that work in the adoption and social work field support greater openness to children born by A.I.D.
  16. The two Claimants seek judicial review of the Secretary of State’s decision expressed in his letter of 25 June 2001. This letter was a response to a request made by letter of 15 January 2001. The Roses were seeking access to non-identifying information, and where possible identifying information, in respect of the anonymous donor. They also wanted directions or regulations to be made concerning matters identified in the letter. EM’s family was seeking non-identifying information about the donor and the establishment of a contact register. The Secretary of State’s response was that there was to be a consultation exercise (announced the previous December), that the consultation document would be published shortly and that the various points would be considered by ministers following completion of the consultation exercise. The consultation document was eventually forthcoming but not until the end of 2001.
  17. The Claimants’ cases are advanced along the following lines.
  18. 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.

  19. Once the consultation exercise was under way, and it was clear that the government was giving serious consideration to how to tackle this extremely difficult problem, it was obviously sensible that many of the issues in this litigation should be stood over pending ministerial decisions on what if any government action was appropriate. Accordingly, at a case management conference on 1 May 2002 I directed that only three issues should be tried at the substantive hearing that had been fixed for 22 May 2002 and the remainder should be stood over. Those issues are:
  20. 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.

  21. It is necessary at the outset to say that Ms Carss-Frisk, who has appeared for the Claimants, has made it clear that for the purposes of this litigation it is not sought to achieve compulsory disclosure of the identity of donors. This seems to me to be an entirely realistic position for her to take. The donors donated the sperm voluntarily for the purposes of relieving the affliction of infertility and on the clear understanding, if not promise, that their identity would remain undisclosed forever. Any failure now to honour that long standing understanding, quite apart from being manifestly unfair to the donors, would drive a coach and horses through the A.I.D. system.
  22. The statutory background

  23. Because of the limited nature of the issues presently to be decided by the court, it is unnecessary to make more than limited reference to some of the provisions of the 1990 Act. As I have mentioned, the critical distinction between the two Claimants is that Ms Rose was born many years before any legislation was on the statute book when secrecy was very much the order of the day. EM was born afterwards; so some of its provisions are of direct relevance to her. Those provisions that need particularly to be kept in mind are:
  24. 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.

    Article 8

  25. Article 8 provides:
  26. 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.
  27. The only question for the court at the present juncture is whether Article 8 is engaged at all. If it is, it will be necessary at any adjourned hearing to go on and consider the balancing exercise under Article 8(2) and whether Article 8 has been breached.
  28. As the Secretary of State points out, it is respect for private and family life, if anything, that brings the Claimants within the article. Neither home nor correspondence is involved. It is necessary therefore to look at the authorities to see how these concepts have been interpreted in relation to Article 8. The root authority in the European Court is Gaskin v United Kingdom (1989) 12 EHRR 36. Gaskin spent most of life as a minor in care boarded out with various foster parents. He claimed he was ill treated in care and since his majority had tried to obtain details of where he was kept, by whom and in what conditions in order to help him to overcome his problems and learn about his past. After protracted litigation he obtained access to some, but not all, of his case records. The court said at para 36:
  29. “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…….”
  30. The court went on to refer to Johnston v Ireland (1987) 9 EHRR 203 where it had held that:
  31. “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.

  32. The court distinguished the case from Leander v Sweden (1987) 9 EHRR 433 where the state was found to have interfered with Article 8 rights by compiling, storing, using and disclosing private information about the applicant but noted that in both cases there was a file containing details of the applicant’s personal history that he had had no opportunity of examining in its entirety.
  33. 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……...”
  34. Next comes Niemietz v Germany 16 EHRR 97 where the court declined to attempt an exhaustive definition of ‘private life’ but said it would be too restrictive to limit the notion to an ‘inner circle’ in which the individual may live his own personal life as he chooses and to exclude therefrom entirely the outside world not encompassed within that circle. ‘Respect for private life’ must also comprise to a certain degree the right to establish and develop relationships with other human beings. Nor should the notion of ‘private life’ necessarily be taken to exclude activities of a professional or business nature. The court therefore viewed the concept of private life as a somewhat elastic one, depending on the particular circumstances under considertion.
  35. Martin v United Kingdom App No.27533/95 was a case declared inadmissible by the Commission. The case concerned records held by two local authorities about the applicant, but the Commission felt the position adopted by the local authorities as regards disclosure adopted a fair balance between the legitimate aim sought to be realised and the applicant’s wish to have access to them and that in the circumstances no positive obligation to disclose the records could be derived from Article 8. The Commission did however note that:
  36. “….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.”
  37. An important recent European authority to which it is necessary to refer is Mikulic v Croatia App No.53176/99. The judgment was published on 7 February 2002. The applicant was a child born out of wedlock who, together with her mother, filed a civil suit in the Zagreb Municipal Court to establish her paternity. She alleged that the proceedings took so long to conclude that respect for her private and family life had been violated. She had no effective remedy for speeding up the proceedings or ensuring the appearance of the Defendant in court. The court held that there had been a violation of Article 8. It said:
  38. “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.”
  39. Finally from Europe comes M v Netherlands (1993) 74 DR 120. Once again the application was declared inadmissible. That case involved the converse of the present case. M was a sperm donor. In 1985 the applicant and his then wife met a lesbian couple who wanted a child by a known donor. The applicant agreed to be the donor and following A.I.D. a child was born to one of the lesbian couple. The applicant visited the mother during the pregnancy and babysat the child regularly during the first nine months of its life, but thereafter further contact was refused. The Commission considered that the situation in which a person donates sperm only to enable a woman to become pregnant through artificial insemination does not of itself give the donor a right to respect for family life with the child. Neither the applicant’s contact with the child nor the sperm donation, nor the two together was a sufficient basis to conclude that such a close personal tie had developed between them as to fall within the scope of ‘family life’ in Article 8.
  40. Mr Giffin, for the Secretary of State relies strongly on this case arguing that you cannot get round the difficulty of not coming within the concept of ‘family life’ by calling it ‘private life.’ For my part I do not consider the issue in the present case to be essentially a question of whether the relationships of the Claimants and the donors fall within the ordinary concept of family life. This, to my mind, is really an identity case and involves the Claimants’ rights to know about their origins. The emphasis therefore is much more on ‘private life’ than ‘family life’. M v Netherlands is to my mind of little assistance, first because it is looking at the question of ‘family life’ rather than ‘private life’ and second because it is looking at the problem through the other end of the telescope.
  41. Turning to the domestic authorities, none is conclusive either way. R(L) v Secretary of State for Health [2001] 1 FLR 406 was a case involving visits by nephews and nieces to the applicant in a high security hospital. There was an issue about the effect of the Secretary of State’s policy on family life. The case illustrates the elasticity of the concept of family life in Article 8, which is dependant on the facts of the particular case. This case in my judgment takes the resolution of the present problem no further.
  42. Re H; Re G: (2001) FLR 646 raised the question whether it would be lawful to place a child for adoption without consultation with the natural father. Mr Giffin relies on a passage from the judgment of the President at paragraph 38.
  43. “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 [2000] 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 [1995] 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.

  44. The nearest domestic authority is Gunn-Russo v Nugent Care Society and Secretary of State for Health [2001] UKHRR 1320. The Claimant was adopted at the age of two and brought judicial review proceedings to obtain disclosure of records held by the voluntary adoption agency that handled her adoption. She succeeded because the policy of the first defendants (the successors to the agency) was applied without due consideration to the facts of her case. Her claim against the Secretary of State for failure to fulfil a positive obligation under Articles 8 and 14 of the E.C.H.R. to make available an appeal procedure against the decision of bodies such as the first defendant was unsuccessful. The records she was seeking were very important to her in her quest to understand her childhood and thereby complete her personal identity and self perception. There was, therefore, an important parallel with the present case.
  45. I said at paragraph 56 that I had come to the conclusion that, in the circumstances of that case, Article 8 added nothing to the English common law. Regulation 15 of the Adoption Agencies Regulations 1983 already fully contemplated the interest of the claimant in knowing and understanding her early life. The disputed documents were not ones to which any greater right of access was conferred by Article 8 than existed in domestic law. I added at paragraph 60:
  46. “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.

  47. Although in my view there are analogies between the position of adopted children and A.I.D. children, the information sought by the Claimants in the present case is very different from that which Ms Gunn-Russo was seeking. Here, what the Claimants are trying to obtain is information about their biological fathers, something that goes to the very heart of their identity, and to their make-up as people. Ms Gunn-Russo already had that information. What she was doing was seeking to obtain information that had very probably come in large part from third parties to fill in gaps in general information around the time she was adopted. It should also be pointed out that Ms Gunn-Russo’s claim succeeded against the first defendants without recourse to Article 8. Nothing I said in Gunn-Russo is in my judgment a serious obstacle to the Claimant’s argument under Article 8 in the present case.
  48. Article 8 was considered in the context of disclosure of information by Munby J in Re X: Disclosure of information [2001] 2 FLR 440, 451. He followed Gaskin but pointed out that he had to balance the competing Article 8 rights of the victim and perpetrator of the abuse.
  49. However, both Defendants submit that Article 8 is not engaged at all in the circumstances of the present case. They emphasise that the starting point is to look and see precisely what it is that the Claimants are seeking to obtain. Ms Rose was conceived at a time when A.I.D. was wholly unregulated and before H.F.E.A. came into existence. EM was conceived after the 1990 Act had been in existence for a number of years. Both claim that the Defendants are obliged in order to discharge positive duties under Article 8:
  50. 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.

  51. The information the Claimants are looking for is information that relates to the donor but does not identify him. This is not necessarily an easy line to draw and there is, of course, a risk that the more non-identifying information that is provided the greater the chance of accidental identification.
  52. In my judgment, at the stage of considering whether Article 8 is engaged at all, it is artificial to distinguish between identifying and non-identifying information. If Article 8 is engaged it is engaged to facilitate the establishment by the Claimants of their personal identity. It is of course, and this is a point made by the Defendants, the Claimants’ personal identity that is crucial and not that of the donor. Information about the donors is only relevant in so far as it helps the Claimants to build up pictures about themselves. There will come a point where information about the donor is too remote to assist in this purpose. As was pointed out in argument, the State is not required to take every positive step that might possibly promote the emotional wellbeing of some of its citizens.
  53. The bottom line, so it seems to me, is that the donor provided half of each Claimant’s genetic identity and it is this that creates the interest of the Claimant to seek information about him. Even here, however, a note of caution must be sounded. It will not be in every case where a woman has given birth following A.I.D. treatment that the A.I.D. donor is the father of the child.
  54. The Defendants submit that it does not follow, if it be the case, that just because identifying information engages Article 8, these Claimants automatically fall within Article 8 too. I am invited to look at the non-identifying information actually sought and see if it alone is of such significance that it engages Article 8. In my judgment that is not a correct or realistic approach. The dividing line between identifying and non-identifying information is not, as the evidence shows, an easy line to draw. At this stage the only question is whether Article 8 is engaged at all and in that regard it seems to me I must look at the concept of information about donors regardless of whether it falls on the identifying or non-identifying side of the line.
  55. What the Claimants in reality want is as much information as possible, including, if appropriate, the identity of the donor. Realistically, they realise that because of the circumstances of confidentiality in which donations of semen are made they are most unlikely to be able to force disclosure of the donor’s identity.
  56. Mr Giffin analysed the meaning of family life and private life within Article 8. He did so separately with regard to each expression and sought to show that the Claimants fall within neither. In my judgment it is more helpful to look at the one expression ‘respect for his private and family life’ to see whether the claimants fall within that. This case is really about respect for the Claimants’ personal identity within that context. It is, in my judgment an over simplistic approach to dismiss the family life aspect by saying that there is no family life on the facts and a mere genetic link is not enough, and then to dismiss the private life aspect by saying the claim is directed at obtaining (i) non-identifying information and (ii) establishing a relationship with the donor, neither of which on analysis falls within the ordinary meaning of private life.
  57. It has, in my judgment been clear since Marckz v Belgium (1979) 2 EHRR 330 that there is an obligation on the state to allow the ties of family life to develop normally and that this obligation is not limited to compelling a state to abstain from interference with family life; it may require the existence in domestic law of legal safeguards that render family life possible. The same in my judgment applies to respect for private life which often cannot be separately compartmentalised from family life see X, Y and Z v The United Kingdom 24 EHRR 143 para 41.
  58. Ms Dinah Rose’s arguments for H.F.E.A. can be summarised as follows.
  59. She also points to the fact that very extensive information is already collected and guidelines followed. The restriction on disclosure of information by clinics in section 33(5) of the 1990 Act has been relaxed by the Human Fertilisation and Embryology (Disclosure of Information) Act 1992, the new Section 6B of the 1990 Act being introduced by the 1992 Act.
  60. What therefore are the principles to be drawn from the authorities that are relevant to this case? They seem to me to be these.
  61. These principles lead me to the following conclusions. Article 8 is engaged both with regard to identifying and non-identifying information, albeit in this case the identity of the donors is not directly sought. What is wanted is non-identifying information and a voluntary contact register. I do emphasise, lest there be any doubt about it, that the fact that Article 8 is engaged is far from saying that there is a breach of it. That question, which may fall to be decided on a further occasion, involves consideration of other matters and may depend on any future action taken by the Secretary of State.
  62. It is to my mind entirely understandable that A.I.D. children should wish to know about their origins and in particular to learn what they can about their biological father or, in the case of egg donation, their biological mother. The extent to which this matters will vary from individual to individual. In some instances, as in the case of the Claimant Joanna Rose, the information will be of massive importance. I do not find this at all surprising bearing in mind the lessons that have been learnt from adoption. A human being is a human being whatever the circumstances of his conception and an A.I.D. child is entitled to establish a picture of his identity as much as anyone else. We live in a much more open society than even 20 years ago. Secrecy nowadays has to be justified where previously it did not. The distinction between identifying and non-identifying information is not relevant at the engagement stage of Article 8, but it is likely to become very relevant when one comes to the important balancing exercise of the other considerations in Article 8(2).
  63. Respect for private and family life has been interpreted by the European Court to incorporate the concept of personal identity (see Gaskin). Everyone should be able to establish details of his identity as a human being (Johnston v Ireland (1987) 9 EHRR 303 para 55). That, to my mind, plainly includes the right to obtain information about a biological parent who will inevitably have contributed to the identity of his child. There is in my judgment no great leap in construing Article 8 in this way. It seems to me to fall naturally into line with the existing jurisprudence of the European Court.
  64. Section 6(6)(a) of the Human Rights Act 1998

  65. Section 6(1) of the Human Rights Act 1998 (‘the 1998 Act’) makes it unlawful for a public authority to act in a way which is incompatible with a Convention right. Section 6(6)(a) provides that ‘an act’ includes a failure to act but does not include a failure to introduce in, or lay before, Parliament a proposal for legislation.
  66. In the event, there is no dispute about the effect of Section 6 in this case. The position is that Section 6(6)(a) prevents the Claimants from complaining of any failure to enact primary legislation or of any failure to make regulations under Section 31(4)(a) of the 1990 Act (extent of information to be provided by H.F.E.A. to an applicant). Any regulations under this subsection require the positive approval of both Houses of Parliament. (see Section 45(4)). On the other hand, the Claimants are not debarred from claiming the Secretary of State has acted unlawfully in failing to make regulations under Section 8(d) of the 1990 Act (regulations prescribing additional functions of H.F.E.A.), because such regulations would fall within the negative resolution procedure (see Section 45(5) of the 1990 Act).
  67. The parties do not dispute therefore that any failure to make regulations under Section 8(d) of the 1990 Act is amenable to a claim that the Secretary of State has breached a positive obligation under the 1998 Act. Where the primary legislation provides that a statutory instrument shall be subject to annulment by resolution of either house, but after being made, it would not be a proposal for legislation for the purposes of Section 6(6)(a) of the 1998 Act. Contrast the position where the primary legislation provides that a statutory instrument may not be made unless authorised by affirmative resolution. There, the instrument would be ‘a proposal for legislation’ for the purposes of Section 6(6)(a) of the 1998 Act. I am indebted to a joint note written at the request of the Court of Appeal by Mr Robin Allen Q.C. and Mr Philip Sales in another case (see Public law [2000] P.L. 361) which all parties agree accurately states the law on this point. As the authors observe, the distinction reflects the general concern in the 1998 Act to preserve and protect parliamentary sovereignty; parliamentary sovereignty is more closely engaged where subordinate legislation cannot be made without direct approval by Parliament.
  68. Justification for a declaration of incompatibility

  69. The question is whether if the Claimants’ arguments succeed they would be capable of justifying a declaration of incompatibility under Section 4 of the 1998 Act. Ms Carss-Frisk poses the question in this way. Suppose a breach of Article 8 is established and suppose that breach cannot be cured under the present legislative scheme (the 1990 Act) or any regulations made thereunder, to what relief are the Claimants entitled? The answer, she submits, is a declaration of incompatibility under Section 4 of the 1998 Act. She says the declaration should set out the relevant positive duty or duties of the state and the failure of the 1990 Act to enable them to be carried out.
  70. The Defendants’ response, (and the case is primarily advanced by the Secretary of State) is that the Claimants are not entitled to a declaration of incompatibility, or indeed any relief, because they cannot identify any particular provision that is incompatible with Convention rights.
  71. There are two reasons why, in my judgment it is premature to rule on this issue now. First, it is unclear in what precise circumstances the issue might arise and second the law is not presently clear and it is possible that it will be clarified by higher courts before the final conclusion of this case.
  72. How might the issue arise? The Claimants contend that there is power under Section 23 of the 1990 Act to give directions to clinics that have never been licensed. H.F.E.A. say there is no such power, a view supported by the Secretary of State.
  73. The Claimants argue that if the ambit of Section 23 is not sufficiently wide then the Secretary of State can remedy this by enhancing H.F.E.A’s powers (see Sections 8 and 45(1)). The Secretary of State’s response is that he cannot enhance H.F.E.A’s powers in this way, to which the Claimants say that if there really is no power in principle to achieve these positive steps required to meet their Article 8 obligations the scheme of the Act is incompatible with the Convention. The 1990 Act sets up a scheme, the purpose of which is to regulate. If it does not achieve, by one means or another, that which Article 8 requires to be achieved then the scheme (as opposed to any particular provision within it) is incompatible with the Convention.
  74. I was referred to ReS;ReW [2002] UKHL 10 where Lord Nicholls of Birkenhead considered whether the existence of possible infringements meant that the Children Act 1989 was incompatible with Article 6 of the Convention. He said:
  75. “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.

  76. Ms Carss-Frisk submits that the present case presents precisely the inconsistency envisaged by Lord Nicholls in para 87. It is far more than a mere lacuna in the 1990 Act. The 1990 Act is a legislative scheme which, if her other arguments fail, is incompatible with the Convention and she is entitled to a Section 4 declaration.
  77. Mr Giffin, on the other hand, submits that the 1998 Act contemplates that any declaration can only be attached to specific legislative provisions. Force for this submission is to be found in the wording of Section 4 itself. Section 4(1), (2)(3) and (4) all refer to a provision of primary legislation in the singular. Further, Section 4(6) refers to the validity of the provision in respect of which the declaration is given. My attention was drawn to Section 10(2) which empowers a Minister of the Crown to make amendments to the legislation to remove the incompatibility. This, submits Mr Giffin, is to be distinguished from a power to make entirely new legislation, to add something that Parliament failed to include when it passed the legislation in question. Parliamentary sovereignty is such that the power remains fairly and squarely with Parliament itself. There is a dividing line between failure to legislate to incorporate an obligation to comply with a Convention right on the one hand, and enacting legislation that conflicts with such a right on the other.
  78. The literal construction of Section 4 attracted itself to Elias J in R (J) v Enfield Borough Council [2002] EWHC 432 although he did not have to decide the point. He referred to the court being required by Section 4(2) to be satisfied that a particular statutory provision is incompatible with a Convention right (para 67). He referred to the difficulty where the complaint was, as here, of a failure to take positive steps. How can the court properly conclude that a series of provisions is incompatible with a Convention right when only one of them – or indeed some entirely different statute – needs to be amended or fresh legislation needs to be passed to resolve the incompatibility (para 71)? He said (para 69) he did not find it particularly helpful, as had been argued in that case, to try and decide which statutory provision was most closely causatively related to a statutory omission. He regarded this as an unrealistic and somewhat arbitrary task. He went on:
  79. “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.”
  80. I can see the attraction of such a course in some cases, but Ms Carss-Frisk persuasively points out that there is no question of any Act other than the 1990 Act being the legislation that is at fault. The 1990 Act is a clear and self contained statutory scheme and if it does not do what Article 8 requires it to do fast track remedial action should be available through a declaration of incompatibility. She relied on International Transport Roth Gmbh and others v Secretary of State for the Home Department EWCA CIV 158 where a declaration granted by the Court of Appeal was that the penalty scheme to deter those intentionally or negligently allowing clandestine entry into the United Kingdom was incompatible with Article 6 and Article 1 of the first protocol of ECHR.
  81. Conclusion

    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.

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