F v M (1st Respondent) The Herts and Essex Fertility Centre (2nd Respondent) C by his children's guardian, G
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Pauffley |
| Judgment Date | 10 December 2015 |
| Neutral Citation | [2015] EWHC 3601 (Fam) |
| Docket Number | Case No: ZW15P00214 |
| Court | Family Division |
| Date | 10 December 2015 |
[2015] EWHC 3601 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Pauffley
Case No: ZW15P00214
and
Deirdre Fottrell QC and Lucy Sprinz (instructed by Philcox Gray) for the Applicant
Martha Cover (instructed by Goodman Ray) for the First Respondent
Andrew Powell (instructed by Russell Cooke) for the Second Respondent
Jeremy Ford on behalf of Cafcass Legal for the Children's Guardian
Hearing dates: 24 and 25 November 2015
Approved Judgment
I direct that copies of this version as handed down may be treated as authentic.
This is my judgment in proceedings brought under s. 55A of the Family Law Act 1986 for a declaration of parentage in relation to a child born in 2013, C. It arises against a background of precisely the same kind of administrative incompetence by a fertility clinic as was described by the President in Re Human Embryology and Fertilisation Act 2008 ( CasesA, B, C, D, E, F, G and H) [2015] EWHC 2602 (Fam). But the surrounding circumstances of this case are very different to those litigated before the President earlier this year.
In this instance, there was a substantial dispute between the parents as to the appropriate Children Act orders which should be made in relation to the child. There had also been a live issue as to whether a declaration of parentage should be made in favour of or against the father, F. By her application the child's mother, M, sought a declaration that F is not the father of C. F applied for a declaration that he is.
Very shortly before the hearing began, Ms Cover on behalf of M, conceded that F should be declared as the father of the child. But that, very obviously, was not the end of the matter. As the President said in the Re HFEA Act 2008 judgment, "it is elementary that a declaration cannot be granted by consent or default. There must be a proper examination of the facts, assessed in the light of the applicable law, before a judge can be satisfied, as he must be if the relief sought is to be granted, that the claim for the declaration is indeed made out: see, for example, Wallersteiner v. Moir [1974] 3 All ER 217, [1974] 1 WLR 991.
In the course of my separate Children Act judgment delivered on 30 November, I said I would be able to find unequivocally that F is entitled to the declaration he seeks. He is the father of C. This judgment explains my reasons for that preliminary indication. It also comments upon the actions and omissions of the Herts and Essex Fertility Centre (HEFC) for identical reasons to those described by the President in his judgment. It is both alarming and shocking that, once more, a court is confronted with an instance of such striking ineptitude from an organisation which is subject to statutory regulation and monitored by a statutory regulator namely the Human Fertilisation and Embryology Authority (HFEA).
Like the President, I have considered the need or rather the absence of any requirement to outline the intensely private, mostly medical details arising from the written evidence filed by the parties. Just as in those cases decided by the President just a few months ago, anonymisation would be an insufficient response to what unquestionably are profoundly personal and intimate matters. It is sufficient to record that I have read and considered a volume of material – the written statements of M and F as well as those of the clinicians who treated the couple together with copies of those documents relevant to the parentage question.
I have also been immensely assisted by the summaries, chronologies, position statements, written and oral arguments of Ms Fottrell QC and Ms Sprinz on behalf of F, Ms Cover who represents M, Mr Powell on behalf of the Herts and Essex Clinic ('the Clinic') and Mr Ford for the Children's Guardian. In the circumstances of the mother's concession, it was unnecessary to hear detailed oral evidence as to the processes which the parents underwent at the Clinic. But it is necessary to identify the legal framework so as to decide whether on the facts the father's claim for declaratory relief is established.
Part 2 of the HFEA 2008 is entitled 'Parenthood cases involving assisted reproduction'. Section 36 of the HFEA 2008 ('Treatment applied to woman where agreed fatherhood conditions apply') provides:
If no man is treated by virtue of section 35 as the father of the child and no woman is treated by virtue of section 42 as a parent of the child but—
(a) the embryo or the sperm and eggs were placed in W, or W was artificially inseminated, in the course of treatment services provided in the United Kingdom by a person to whom a licence applies,
(b) at the time when the embryo or the sperm and eggs were placed in W, or W was artificially inseminated, the agreed fatherhood conditions (as set out in section 37) were satisfied in relation to a man, in relation to treatment provided to W under the licence,
(c) the man remained alive at that time, and
(d) the creation of the embryo carried by W was not brought about with the man's sperm,
then, subject to section 38(2) to (4), the man is to be treated as the father of the child.
Section 37 HFEA 2008 ('the agreed fatherhood conditions') provides:
(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 he consents 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 she consents 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's consent 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 she consents to another man being treated as the father of any resulting child, or
(ii) a notice under section 44(1)(b) stating that she consents 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.
(3) A notice under subsection (1)(a), (b) or (c) by a person ("S") who is unable to sign because of illness, injury or physical disability is to be taken to comply with the requirement of subsection (2) as to signature if it is signed at the direction of S, in the presence of S and in the presence of at least one witness who attests the signature.
Guidance is contained within paragraph 63 of the President's judgment in Re HFEA 2008 namely –
i) The court can act on parol evidence to establish that a Form WP or a Form PP (the consent forms required by the HFEA to be signed before the treatment both by the woman and her partner) which cannot be found was in fact properly completed and signed before the treatment began;
ii) The court can 'correct' mistakes in a Form WP or a Form PP either by rectification, where the requirements for that remedy are satisfied, or, where the mistake is obvious on the face of the document, by a process of construction without the need for rectification.
iii) A Form IC, (an internal consent form) …, will, if properly completed and signed before the treatment began, meet the statutory requirements without the need for a Form WP or a Form PP.
iv) It follows from this that the court has the same powers to 'correct' a Form IC as it would have to 'correct' a Form WP or a Form PP.
In this case, M's written...
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