This judgment was handed down in
open
court
Sir James Munby, President
of
the Family Division :
- In In
re
A and
others
(Human
Fertilisation
and
Embryology)
(Legal Parenthood: Written Consent) [2015] EWHC 2602 (Fam), [2016] 1 All ER 273, [2015] WLR(D) 387, and then again in
Re
the Human
Fertilisation
and
Embryology
Act 2008 (Case G) [2016] EWHC 729 (Fam), I have had to consider a number
of
cases which raised issues very similar to those which confront me here.
Background
- In my judgment in In
re
A, I set
out
(paras 6-8) the lamentable background to all this litigation. I
referred
to the significant number
of
cases in which the Human
Fertilisation
and
Embryology
Authority ("the HFEA") had identified "anomalies". I have now given final judgment in eight cases (Cases A, B, C, D, E, F, G and H). This is Case I. Six further cases (Cases J, K, L, M, N and
O)
are currently awaiting final hearing. For all I know there may be
others
pending.
- There is no need for me to
rehearse
again the statutory framework and the legal principles which I dealt with in my judgment in In
re
A. None
of
it was challenged before me in Case G. None
of
it has been challenged before me in this case. I shall therefore take as
read,
and apply here, my analyses
of
the statutory scheme under the Human
Fertilisation
and
Embryology
Act 1990 and the Human
Fertilisation
and
Embryology
Act 2008 (In
re
A, paras 14-25),
of
the various consent forms which are in use (In
re
A, paras 26-31),
of
the previous authorities (In
re
A, paras 32-43) and
of
the three general issues
of
principle which I addressed (In
re
A, paras 44-63).
- I set
out
(In
re
A, paras 47-48) my analysis
of
the potential applicability in these cases
of
the equitable doctrine
of
rectification
and
of
the principle that the court can, as a matter
of
construction, 'correct' a mistake if the mistake is
obvious
on
the face
of
the document and it is plain what was meant. This was a topic to which I
returned
in Case G (para 4), supplementing but not altering what I had said in In
re
A.
The facts
- For the
reasons
which I explained in In
re
A, para 66, I propose to be extremely sparing in what I say
of
the facts and the evidence in this case.
- The applicant, who I will
refer
to as X, is a man who was at all material times in a
relationship
with the first
respondent,
a woman who I will
refer
to as Y. Following IVF treatment provided by a clinic, CARE Sheffield,
operated
by the Care Fertility Group, which is and was
regulated
by the HFEA, Y gave birth to their child. X seeks a declaration pursuant to section 55A
of
the Family Law Act 1986 that he is, in accordance with section 36
of
the 2008 Act, the legal parent
of
the child. Y is wholeheartedly supportive
of
X's application. Since the birth
of
their child, X and Y have married. That does not, however affect, any
of
the questions which I have to determine.
- Neither the clinic nor the Secretary
of
State for Health is a party to the proceedings. Both have made clear, however, that they do not challenge the
relief
sought by X. The clinic's position is set
out
in a witness statement from the individual who is the "person
responsible"
within the meaning
of
section 17(1)
of
the 1990 Act. The Secretary
of
State's position is set
out
in a detailed letter from the Government Legal Department ("the GLD"). The
report
of
the child's guardian is very positive and entirely supportive
of
the application.
- I have been greatly assisted in my task by the submissions I have had, both written and
oral,
from Miss Deirdre Fottrell QC and Miss Marisa Allman for X and from Miss Sarah Morgan QC for the guardian.
- I had written evidence from X and Y. Both were present throughout the hearing, which took place
on
6 April 2016. Y gave
oral
evidence.
- Just as in each
of
the cases I had to consider in In
re
A and in Case G, so in this case, having
regard
to the evidence before me, both written and
oral,
I find as a fact that:
i) The treatment which led to the birth
of
the child was embarked upon and carried through jointly and with full knowledge by both the woman (that is, Y) and her partner (X).
ii) From the
outset
of
that treatment, it was the intention
of
both Y and X that X would be a legal parent
of
the child. Each was aware that this was a matter which, legally,
required
the signing by each
of
them
of
consent forms. Each
of
them believed that they had signed the
relevant
forms as legally
required
and, more generally, had done whatever was needed to ensure that they would both be parents.
iii) From the moment when the pregnancy was confirmed, both Y and X believed that X was the
other
parent
of
the child. That
remained
their belief when the child was born.
iv) Y and X, believing that they were entitled to, and acting in complete good faith,
registered
the birth
of
their child, as they believed the child to be, showing both
of
them
on
the birth certificates as the child's parents, as they believed themselves to be.
v) The first they knew that anything was
or
might be 'wrong' was when, some years later, they were contacted by the clinic.
vi) X's application to the court is, as I have said, wholeheartedly supported by Y.
- I add that there is no suggestion that any consent given was not fully informed consent. Nor is there any suggestion
of
any failure
or
omission
by the clinic in
relation
to the provision
of
information
or
counselling. This is a matter which the GLD helpfully suggested might benefit from further exploration. Having been guided through that process by Miss Fottrell I am entirely satisfied that the necessary counselling was provided by the clinic. I do not propose to go into the details. It suffices to
record
that my conclusion is based in part
on
the very clear evidence
of
X and Y and in part
on
what was
recorded
contemporaneously by the clinic in written documents.
- At the conclusion
of
the hearing I made an
order
declaring that X "is the father
of"
the child. I now (12 April 2016) hand down judgment explaining my
reasons
for making that
order.
The issues
- This case raises issues I have not previously had to consider. They arise from the fact that the
relevant
consents were provided by X and Y shortly before the 2008 Act came into force
on
6 April 2009, whereas the
relevant
treatment commenced,
on
6 April 2009, after the 2008 Act had come into force. Forms WP and PP were introduced with effect from 6 April 2009 as part
of
the new scheme introduced by the 2008 Act. Prior to that, the
relevant
form used for the purposes
of
the
original
scheme under the 1990 Act was what I have called a Form IC. The clinic's mistake was in failing to appreciate, despite all the guidance
on
the point previously circulated by the HFEA, that, because the treatment commenced
on
6 April 2009, it was necessary to comply with the
requirements
of
the 2008 Act. Apparently, staff at the clinic believed that the
requirements
of
the 2008 Act applied
only
to procedures carried
out
after 6 April 2009 and did not appreciate that they applied to procedures carried
out
on
and from 6 April 2009.
- In these circumstances, given the facts and my findings, taken in the context
of
the analysis in In
re
A, three issues arise. The first is whether the language
of
the Form IC, a document signed by X and Y
on
27 February 2009, is apt to satisfy the
requirements
of
sections 36 and 37
of
the 2008 Act. The second is whether, assuming it is, the Form IC has that effect notwithstanding the coming into force
of
the 2008 Act. The third arises because, as completed, the Form IC showed that what was going to be used was X's sperm whereas in fact what was used was the sperm
of
an anonymous donor.
- The first issue: I need not set
out
the contents
of
the Form IC in any detail. For present purposes, there are two things to be noted. The first (see section 37(1)(a)
of
the 2008 Act) is that X signed a declaration in the following terms:
"I am the male partner
of
[Y]. I acknowledge that she and I are being treated together … In consenting to the course
of
treatment
outlined
above, I understand that I will become the legal father
of
any
resulting
child(
ren)."
The
other
(see section 37(1)(b)
of
the 2008 Act) is that nowhere in the Form IC did Y state in terms that she consented to X being treated as the father
of
the child. I can take the matter very shortly. For the
reasons
I set
out
in In
re
A, paras 52-53, I am satisfied that the Form IC signed by X and Y is, as a matter
of
content and construction, apt to
operate
both as a Form PP and as a Form WP, complying with the
requirements
of
both section 37(1)(a) and section 37(1)(b).
- The second issue: In In
re
A, paras 54, 61, I concluded that a properly completed Form IC which, as a matter
of
content and construction, is apt to
operate
both as a Form PP and as a Form WP and which complies with the
requirements
of
sections 37(1)(a) and 37(1)(b), is not precluded by any
of
the provisions
of
the statutory scheme from
operating
as consent for the purposes
of
section 37
of
the 2008 Act; and that failure to use a Form WP
or
a Form PP does not invalidate a consent which would
otherwise
comply with section 37.
- Can it make any difference that the Form IC was completed and signed before the 2008 Act came into effect,
or
that the
objective
at the time it was signed was to comply with the
requirements
of
the
regime
under the 1990 Act, rather than the new
regime
under the 2008 Act? Surely not. The
only
question, in my judgment, is whether the document being
relied
upon – in the present case the Form IC – is, as a matter
of
content and construction, apt to satisfy the
requirements
of
both section 37(1)(a) and section 37(1)(b). If it is, then the statutory
requirements
are satisfied; if it is not, then the statutory
requirements
are not satisfied. The point, in the final analysis, is as short and simple as that.
- Miss Fottrell makes the very powerful argument that, if the treatment in this case had taken place
on
or
after 27 February 2009 but before 6 April 2009, the Form IC completed and signed
on
27 February 2009 would have sufficed to establish X's legal parenthood in accordance with the
regime
under the 1990 Act, just as, if the Form IC had been signed
on
6 April 2009 immediately before the treatment was begun, that would have sufficed, in accordance with the analysis in In
re
A, to establish X's legal parenthood in accordance with the new
regime
under the 2008 Act. It would, she submits, be wholly artificial to treat the Form IC as somehow becoming invalid
or
of
no effect with the coming into force
of
the 2008 Act
on
6 April 2009. After all, as Miss Morgan points
out,
neither X
or
Y ever withdrew their consents. When the treatment began
on
6 April 2009, everyone – X, Y and the clinic – was proceeding
on
the basis
of
and
relying
upon the consents given
on
27 February 2009. I agree with Miss Fottrell and Miss Morgan.
- Miss Fottrell goes further, submitting that it would be perverse to treat the Form IC as having become invalid in
respect
of
those parts
of
it
relating
to consent to legal parenthood given that it plainly
remained
operative
in
respect
of
those parts
of
it
relating
to consent to medical treatment. Miss Morgan makes the same submission. I agree.
- It follows, in my judgment, that the Form IC completed and signed
on
27 February 2009 continued to
operate
as valid and effective consents for the purpose
of
section 37
of
the 2008 Act, notwithstanding the change in the statutory
regime
which
occurred
on
6 April 2009.
- The third issue: It was clear to everyone from the
outset
– X, Y and the clinic – that there was no question
of
X's sperm being used and that the treatment would involve use
of
the sperm
of
an anonymous donor. It had, for example, been the subject
of
counselling involving both X and Y in September 2008. It is, accordingly, clear beyond sensible argument that there is an error in the Form IC as completed and signed, inasmuch as it
recorded
that what was going to be used was X's sperm. Equally plainly, what was meant was that what was going to be used was the sperm
of
an anonymous donor. The mistake was, in
reality,
as simple as this, that a ... was inserted in the wrong place and, as it were, against the wrong piece
of
text. It was, as Miss Morgan submits, a simple undetected clerical error. In the circumstances, this
obvious
mistake can, in my judgment, be 'corrected' as a matter
of
construction, and without the need for
rectification
(see paragraph 4 above).
- It follows from all this that X is entitled to the declaration
of
parentage which he seeks.
Adoption
- In a letter from the clinic dated 26 June 2014 to X and Y describing the clinic's understanding
of
the legal position, the following
remedies
were identified as being possible: a parental
responsibility
order
(not in fact feasible because X's name was already
on
the birth certificate);
or
a step-parent adoption. There was no suggestion that a parental
order
might be possible. My impression is that the view
of
the clinic in this case, shared at the time both by the HFEA and by the
other
clinics whose actions I have had to consider, was based
on
assumptions, derived from Cobb J's judgment in AB v CD and the Z Fertility Clinic [2013] EWHC 1418 (Fam), [2013] 2 FLR 1357, which were widespread until, in February 2015, Theis J gave judgment in X v Y (St Bartholomew's Hospital Centre for
Reproductive
Medicine Intervening) [2015] EWFC 13, [2016] PTSR 1.
- With heavy hearts, and I can understand
only
too well why they should have thought adoption an utterly inappropriate
remedy
(see In
re
A, para 71), X and Y decided to proceed by way
of
adoption. As X said, "It was an extremely difficult decision for us to make … It was against all that we had hoped when we started the process." Y's statement says it all: "My thought
on
adoption was
one
of
devastation for [X]. The
realization
that he may have to adopt … his
own
son … was tremendous … It was an extremely difficult decision for us to make to initiate adoption proceedings." However, in March 2015 X applied to the family court for an adoption
order.
- Happily, the District Judge to whom the case was allocated spotted the potential significance
of
Theis J's judgment. When the matter came
on
for directions before the Circuit Judge, counsel then instructed by X submitted that there was a very
real
possibility that X was already the legal father; that it appeared that the adoption application was misconceived; that the appropriate
remedy
was an application to the High Court for a declaration
of
parentage; and that the adoption application should be stayed. In her very helpful note for the court, counsel
observed
that "it would appear that the couple have been ill advised by the clinic and put to the great distress
of
making this application which is likely to be proven unnecessary."[1] The Circuit Judge made an
order
staying the adoption proceedings. In subsequent
orders
the same Circuit Judge extended the stay, most
recently
until 30 April 2016. In a
recent
order
I directed that the adoption proceedings were to be allocated to me.
- Given my decision in
relation
to X's application for a declaration
of
parentage, any need to pursue the adoption application falls away. Miss Fottrell submitted that I should give her client leave to withdraw the adoption application. That must be right. Accordingly, and sitting for this purpose in the family court, I made an
order
giving X leave to withdraw the adoption application.
A final matter
- I have drawn attention in my previous judgments to the devastating impact
on
parents
of
being told by their clinic that something has gone 'wrong' in
relation
to the necessary consents (see In
re
A, para 69, and Case G, para 31). I commented (Case G, para 32) that these were situations calling for "empathy, understanding, humanity, compassion and, dare
one
say it, common decency, never mind sincere and unqualified apology." In Case G, I was very critical
of
that clinic's behaviour in this
respect.
- In the present case, X and Y were similarly affected. Y, who
received
the initial telephone call from the clinic, says she was "beside myself" and felt "physically sick." X, when he got the news from Y, felt "total devastation." "I was totally numb and shocked."
- Unhappily, they did not
receive
from the clinic the support they were entitled to look for. In the very first telephone call, Y
recalls
being told that X's name should not have been put
on
the birth certificate and that the certificate should have
recorded
the father as being unknown. X and Y are critical
of
the clinic's handling
of
the problem which, after all, it had created. In her
report,
the guardian, who has been involved in all nine cases to date,
observed
that the subsequent actions
of
the clinic "do not compare favourably to those
of
the
other
clinics" and that the clinic has appeared "defensive and insensitive." She described the comment about the birth certificate as being "not
only
factually incorrect but most terribly hurtful."
- The letter dated 26 June 2014 to which I have already
referred
contained not a single word
of
apology
or
regret.
A subsequent letter dated 15 April 2015 contained an
offer
to pay the
reasonable
costs
of
the parenthood application "without cap" and an
offer
of
£1,000 each to X and Y "by way
of
ex gratia payment in
recognition
of
the anxiety they have suffered, in full and final settlement
of
all causes
of
action." As in the case
of
the earlier letter, it contained not a single word
of
apology. In January 2016 the clinic filed the witness statement to which I have already
referred.
It contained this anaemic sentence: "I would like to take this
opportunity
to express my sincerest apologies
on
behalf
of
CARE Sheffield and CARE Fertility Group for the distress that this matter has caused [X], [Y] and the [child]." This, I was told, was the first apology either X
or
Y had had from the clinic.
- The clinic's behaviour is by no means the worst I have seen in the course
of
considering all these cases, but it was, nonetheless, seriously deficient and, in my judgment, deserving
of
the criticisms voiced by X, by Y and by the guardian.