Re E & F (assisted Reproduction: Parent)
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Cobb |
| Judgment Date | 24 May 2013 |
| Neutral Citation | [2013] EWHC 1418 (Fam) |
| Docket Number | Case No: LE12P00342 |
| Court | Family Division |
| Date | 24 May 2013 |
[2013] EWHC 1418 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Cobb
Case No: LE12P00342
and
Mr Martin Kingerley (instructed by Smith Partnership) for the Applicant [AB]
Miss Marisa Allman (instructed by Simpson Millar LLP) for the Respondent [CD]
Miss Ashley Thain (instructed by Mills & Reeve LLP) for the Intervener [Z Fertility Clinic]
Hearing dates: 7, 8, 9 May 2013
This judgment is being handed down in private on 24 th May 2013 It consists of 26 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported, in the anonymised form.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
Introduction and summary :
Law and society have always attached a special significance to a person's status, and 'parentage' confers status — on both the adult and on the child (see for instance Lord Wilberforce's speech in The Ampthill Peerage [1977] AC 547, at 568G—H).
The legal status of 'parent' carries with it implications for:
i) the law relating to contact & residence ( section 10(4)(a) Children Act 1989);
ii) child maintenance ( schedule 1, para.4 and 10 Children Act 1989 as amended by schedule 6 HFEA 2008);
iii) inheritance ( section 48(5) HFEA 2008);
iv) " bring(ing) and defend(ing) proceedings about the child" (Baroness Hale in Re G [2006] UKHL 43 [2006] 2 FLR 629 @ §32);
and importantly:
v) " mak(ing) the child a member of that person's family" ( Re G ibid.)
The conferring of the legal status of 'parent' on a person who is not genetically related to a child is therefore a serious matter (see Re R (IVF: Paternity of Child) [2005] UKHL 33 [2005] 2 FLR 843, §39) [2005] 2 FLR 84 The creation of such a relationship affects not only the mutual connection of parent and child, but also the associations between the child and the whole of that parent's family.
Divesting a person of the legal status of 'parent' is plainly no less serious; it is this difficult issue which I am required to determine at this interlocutory stage of these private law proceedings.
The important context in which the key events with which I am concerned occurred was the implementation of the Human Fertilisation and Embryology Act 2008 (" HFEA 2008"); this introduced significant amendments to the Human Fertilisation and Embryology Act 1990 (" HFEA 1990") providing, for the first time, the facility for a woman ("a second woman") in a same-sex relationship who was not in a civil partnership nonetheless to become a 'parent' of a child or children born to her partner where both parties agreed.
The arrangements for conferring legal parenthood under the HFEA 2008 depend upon mutual compliance by the parties and the relevant clinic with a range of legal duties and procedural requirements; these are underpinned by core regulatory principles applying to licensed centres carrying out activities under the HFEA 1990 and the HFEA 2008. One of the more important duties on a licensed clinic is to ensure that patients are given sufficient, accessible and up-to-date information to enable them to make informed decisions about the significant steps as to treatment and parentage which they take. The licensed clinic is required further to ensure that all patients have provided all relevant consents before carrying out any licensed activity. Unsurprisingly there was, and is, a complementary obligation on the clinics to maintain accurate records and information.
This judgment discusses the serious implications for the patients, and the children born to those patients, when the legal duties, procedural requirements and regulatory principles are not observed rigorously. Had they been so applied, when the parties to this case had purported to achieve the grant of 'parental' status to the 'second woman', a great deal of distress, and this part of this litigation, would almost certainly have been avoided.
The Applicant is AB, a lesbian woman aged 37, who makes an application for contact to twin boys, E and F, now aged 3. In making that application, she describes herself as the boys' 'parent'; she is indeed so defined on the boys' birth certificates. For the first 17 months of their lives, she fulfilled a parental role, as an integral part of the boys' family with her then partner, and the mother of the boys, CD.
CD opposes the contact application. In responding to the application, she disputes that AB is the boys' 'parent'. She invites me to make a declaration, in line with her contention that AB is not a parent, under section 55A of the Family Law Act 1986. That is the preliminary issue (namely whether AB is properly to be regarded as a legal 'parent' to the boys) to which this judgment is addressed.
CD further contends that it would not be in the children's best interests for AB now to have contact with the boys.
In addressing the issues in this case, I have been required to consider with care whether the steps taken by the parties, AB and CD, and by the licensed fertility clinic which was responsible for assisting the reproduction, were effective to grant AB status as legal 'Parent'. In doing so, I have focused on the following issues:
i) Whether the 'consent' forms purporting to vest 'parental' status in AB were completed and submitted to the licensed clinic in accordance with the requirements of the HFEA 2008, and supporting guidance. This gives rise to questions of:
(a) The timing of completion, and submission to the 'person responsible' at the licensed clinic overseeing the assisted reproduction, of the relevant forms;
(b) Whether the consent to parental status evidenced by those forms was truly 'informed' consent.
ii) Whether at the time the treatment was given to AB and CD, the fertility clinic had complied with its licence requirements under the HFEA 1990. In particular:
(a) Had the clinic provided sufficient information to both parties to enable them to make informed decisions about parentage issues?
(b) Had the clinic provided the parties with an opportunity to receive proper counselling about the step proposed?
If not
(c) Does the non-compliance with the licence requirements vitiate the consent of the parties?
iii) Generally, I have been asked to consider what significance should be attached to the intention of the parties on the question of grant of parentage, if the legal, procedural and regulatory principles have not been strictly observed.
iv) If I determine that the requirements for establishing 'parentage' were not complied with in the instant case, whether I should reject the application for a declaration as to (non-)parentage, on public policy grounds (i.e. on the basis that the court should be slow to deprive AB of the status of 'parent' and potentially other 'parents' in her situation who have failed to acquire the relevant status by reason of what has been described as a 'technical' non-compliance with the statutory requirements).
In determining this application I have received oral and written evidence from AB and CD. I have also received oral and written evidence from the licensed clinic (hereafter referred to as 'The Z Fertility Clinic'), which, for the reasons set out below, has been joined as an intervener in these private law proceedings.
I have faithfully applied the evidence in this case to the law, underpinned as it is by codes of practice and guidance, and for the reasons which I discuss more fully below, I have been constrained to find that the legal requirements under the HFEA 2008 for AB to become a parent were not satisfied.
I conclude that it is in the interests of E and F that I should make the relevant declaration under section S55A of the Family Law Act 1986 so that there is certainty about the decision which I have reached.
I wish to emphasise at this early stage of the judgment that the withdrawal of legal parental status, devastating though that is likely to be to AB, is not the end of the story. A parental relationship can take many forms, not just dependent upon biological or legal links; psychological and social parenthood is, or can be, meaningful for children. I accept Baroness Hale's description of this important category of 'parent' in Re G (Children) [2006] UKHL 43 @ §35 (a case with some common themes) as being:
" the relationship which develops through the child demanding and the parent providing for the child's needs, initially at the most basic level of feeding, nurturing, comforting and loving, and later at the more sophisticated level of guiding, socialising, educating and protecting."
It may be that AB has a true parental role to play for E and F in the future as she has in the past; I am not in a position to assess that at this stage. From the submissions of counsel I have been led to understand that there will not be any, or any meaningful, opposition from CD to the grant of leave to AB to pursue her contact application. That application for leave, and if granted, the application for contact, will now be determined at a hearing which I shall set up without any further delay.
Essential background facts
AB and CD formed a relationship in 1997, and moved in to live together in the following year. They separated after some 13 years, in June 2011. Both now have new partners.
For some years, it appears that they discussed having a family. In 2008 they took steps...
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