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England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> AI and AJ, Re Human Fertilisation And Embryology Act 2008  EWHC 3351 (Fam) (20 December 2017)
Cite as:  EWHC 3351 (Fam)
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Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
|In the Matter of the Human Fertilisation and Embryology Act 2008|
|(Cases AI and AJ)|
Ms Dorothea Gartland (instructed by Bevan Brittan LLP) for Central Manchester University Hospitals NHS Foundation Trust in Case AI
Hearing date: 15 December 2017
Crown Copyright ©
Sir James Munby, President of the Family Division :
i) The treatment which led to the birth of the child, C, 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 X and Y that X would be a legal parent of C. 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 X and Y believed that X was the other parent of the child. That remained their belief when C was born.
iv) X and Y, believing that they were entitled to, and acting in complete good faith, registered the birth of their child, as they believed C to be, showing both of them on the birth certificate as C's parents, as they believed themselves to be.
v) The first they knew that anything was or might be 'wrong' was when they were contacted by the clinic.
"That there has been a mistake in this case in the completion of the Form WP is obvious, for the very purpose of completing the form is to give the consent indicated by the placing of a v in the relevant box. And it is plain what was meant. After all, Form WP is headed "Your consent to your partner being the legal parent." What did Y think she was doing when she completed and signed the Form WP, if not to give her "consent to [her] partner being the legal parent"? The answer is obvious: by signing the Form WP she intended to and believed she was giving that consent. The only defect in the completed document is … a simple undetected clerical error. In the present case … this obvious mistake can, in my judgment, be 'corrected' as a matter of construction, and without the need for rectification."
"The mother signed, at the appropriate time, a Form WP in proper form. Her partner signed a Form PP, at the appropriate time and in the proper form, except that she dated sections 4 and 5 with her date of birth rather than the date on which she signed it. That this was a mistake is obvious, as is the 'correction' required to remedy the mistake, for the correct date, established by the evidence, is that on which both the Form WP and the Form IC were signed. (I note in passing that the precise date is not material; what is vital is that the form was signed, as I am satisfied it was, before the treatment.)"
"Both the Form PP and the Form WP were properly completed, with the sole exception that in section 4 on page 2 of the Form WP, Y filled in her date of birth where she should have inserted the date on which the document was being signed. That this obvious error is immaterial appears from Case D."
"Section 42 of the 2008 Act creates a rebuttable presumption that consent exists in cases of marriage or civil partnership. The presumption can be rebutted by evidence which shows that consent has not been given."