D v D and Another
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Peter Jackson |
| Judgment Date | 05 July 2016 |
| Neutral Citation | [2016] EWHC 2112 (Fam) |
| Court | Family Division |
| Date | 05 July 2016 |
[2016] EWHC 2112 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
LIVERPOOL DISTRICT REGISTRY
Liverpool Civil and Family Court
35 Vernon Street
Liverpool
Merseyside
L2 2BX
The Honourable Mr Justice Peter Jackson
and
D V D (Fertility Treatment: Paperwork Error)
Mr Clive Baker appeared on behalf of the Applicant
The First Respondent attended in person
Ms Dorothea Gartland appeared on behalf of the Second Respondent
Judgment approved by the court
This is an application in effect by a married couple, although one is formally the applicant and the other the first respondent, for a declaration of parentage under section 55A of the Family Law Act 1986 in respect of a young child. The child was born as a result of successful fertility treatment which was undertaken with the assistance of donor gametes in respect of one of the couple.
It is one of a series of cases, to which I will refer in a little more detail in a moment, where an essentially trivial error in the paperwork surrounding the fertility treatment has led to serious legal consequences. However, before coming to those, I would want to record that the couple has nothing but praise for the clinical staff for the treatment they received and they, of course, consider themselves blessed to have increased their family in the way that they have done. Equally, the clinic, the Hewitt Fertility Centre, a subsidiary of the second respondent, the Liverpool Women's Hospital NHS Foundation Trust, has fully explained what went wrong, offered an unreserved apology to the couple for its mistake and has taken responsibility for the consequent legal costs.
Even so, the distress caused by an unnecessary mistake of this kind cannot be overstated. It has caused this couple, like others in their position, well over a year of anxiety and led them into completely needless legal proceedings. Accordingly, it is not only appropriate to set out what has taken place here in a way that is publicly available, but also to see whether anything can be learned from experience so that other families can avoid it.
This application takes place against the background of other cases concerning paperwork errors. Most recently, the President of the Family Division dealt with a sequence of cases under the reference A & Ors (Human Fertilisation and Embryology Act 2008) [2015] EWHC 2602 (Fam). That decision established that errors in consent forms can be overcome where it is obvious that they are mere errors against a background of clear consent of the kind required by the legislation. Subsequently, there have been other cases, in particular, In the Matter of the Human Fertilisation and Embryology Act 2008CaseJ [2016] EWHC 1330 (Fam), and, since then, CaseM and CaseN have followed, and there will be others.
All that need be said about the history here is that the couple were engaged with the clinic for quite a considerable period and that, some years ago, they completed the paperwork that lies behind the subsequent pregnancy and birth. They were not, at that time, married, although they have subsequently become so. The precise difficulty is identical to that encountered in CaseJ, the decision in which was given only three weeks ago.
Each adult was rightly called upon to fill in and sign a form relating to the legal parentage of the intended child. In the case of the female partner, this is Form WP, while the male partner signs Form PP. In this case, Form PP was fully completed. It is entitled, "Your consent to being the legal parent." The Form WP is entitled, "Your consent to your partner being the legal parent." It is a two-page form. When filled out, as it was in this case, by the female partner, it required her to give her name, her date of birth and NHS or passport number, the same information for her partner and, at the end, a declaration with a signature and a date. Above the declaration is a small paragraph at the top of the second page, reading as follows:
"(3) About your consent."
Below that:
"(3.1) Your consent to your partner being the legal parent."
Below that is a tick box with the words:
"I consent to my partner (named in section 2) being the legal parent of any child born from my treatment."
That declaration, which could equally have appeared as part of the declaration above the signature, has a tick box of no more than half a centimetre square. In this case, as in CaseJ, the female partner omitted to tick that box. That omission, which, for reasons I will explain, I would regard as fairly understandable, was not picked up by the...
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