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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (High Court Judges) >> PQ v RS and others (Legal Parenthood: Written consent) [2019] EWFC 65 (15 October 2019) URL: https://www.bailii.org/ew/cases/EWFC/HCJ/2019/65.html Cite as: [2019] EWFC 65 |
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SITTING AT THE ROYAL COURTS OF JUSTICE
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
![]() | Applicant |
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- and - |
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![]() | 1 st Respondent |
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- and - |
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T & ![]() (by ![]() Jane Powell) |
2nd & 3rd Respondents |
____________________
Ms Ruth Kirby (instructed by Nockolds) for the Respondent
Mr Tom Wilson (instructed by Goodman Ray) for the 3rd & 4th Respondents
Mr Martin Kingerley (instructed by Mills & Reeve LLP) for Bourn Hall ('The Clinic')
Hearing date: 10th October 2019
____________________
VERSION
OF JUDGMENT APPROVED
Crown Copyright ©
MRS JUSTICE THEIS DBE:
Introduction
Relevant Legal
Framework
"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 – the issue which confronts me here – is dealt with in Part 2, sections 33-47, of the 2008 Act. It 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 andlegally,
than the answer to the question: Who is my parent? Is this my child?"
(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 heconsents
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 sheconsents
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'sconsent
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 sheconsents
to another man being treated as the father of any resulting child, or
(ii) a notice under section 44(1)(b) stating that sheconsents
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.
'In two cases (Cases B and D) the parties have separated since the birth of the child. Everyone is correctly agreed that this islegally
irrelevant to anything I have to decide, for in each case (as in all the other cases) the
legal
status of all the 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.'
(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])
Relevant Background
(1) BothPQ
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) BothPQ
and
RS
believed they had signed whatever was
legally
required, to ensure they both became parents, and
(3) BothPQ
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.
'From the welfare perspective of T andV,
if the
legal
and technical issues surrounding the forms and
consent
can be resolved, I have no hesitation in recommending that a Declaration of Parentage be made. This is a declaration that is important and necessary for the children for the rest of their lives, not just during their minorities. 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 their parents embarked on the fertility treatment.'
Submissions
Discussion and Decision
(1)PQ
must have given a notice (s 37 (1) (a)) stating that he
consents
to being treated as the father of any child resulting from treatment provided to
RS
(in this case Form PP 'Your
consent
to being the
legal
parent').
(2)RS
must have given a notice (s 37 (1) (b)) stating that she
consents
to
PQ
being so treated (in this case Form WP 'Your
consent
to your partner being the
legal
parent').
(3) The notices must be in writing and signed by the person giving it (s 37 (2)).
(4) The notices must have been signed before the treatment took place (s 36 (b)).