Re G
| Jurisdiction | England & Wales |
| Judge | Sir James Munby |
| Judgment Date | 06 April 2016 |
| Neutral Citation | [2016] EWHC 729 (Fam) |
| Docket Number | Case number omitted |
| Court | Family Division |
| Date | 06 April 2016 |
[2016] EWHC 729 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir James Munby PRESIDENT OF THE FAMILY DIVISION
Case number omitted
Miss Deirdre Fottrell QC and Miss Lucy Sprinz (instructed by Goodman Ray) for the applicant
Miss Janet Bazley QC and Miss Sharon Segal (instructed by Russell-Cooke LLP) for the children's guardian
Miss Samantha Broadfoot (instructed by the Government Legal Department) for the Secretary of State for Health
Miss Eleanor Grey QC (instructed by Hempsons) for IVF Hammersmith Limited
Hearing date: 23 February 2016
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] x WLR xxx, [2016] 1 All ER 273, I had to consider a number of cases which raised issues very similar to those which confront me here. The present case was in fact briefly referred to in In re A (see para 9). This is my judgment following the final hearing which took place on 23 February 2016.
The 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". Seven further cases (Cases I, 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 which has been the subject of challenge 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 add only one thing. 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. During the hearing in this case I was referred to a number of authorities on these two points. Since, in my judgment, none of them casts the slightest doubt on what I said in In re A, I need not further refer to them. In relation to the second, I merely quote what Lord Neuberger of Abbotsbury MR said in Pink Floyd Music Ltd and another v EMI Records Ltd [2010] EWCA Civ 1429, [2011] 1 WLR 770, para 21:
"… before the court can be satisfied that something has gone wrong, the court has to be satisfied both that there has been "a clear mistake" and that it is clear "what correction ought to be made."
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 woman who was at all material times in a same-sex relationship with the first respondent, who I will refer to as Y. X is the biological mother, and Y is the gestational mother, of twins, born as a result of IVF treatment provided by a clinic, IVF Hammersmith Limited, which is and was regulated by the HFEA. As their gestational mother, Y is the twins' legal parent. X seeks a declaration pursuant to section 55A of the Family Law Act 1986 that she is, in accordance with section 43 of the 2008 Act, the legal parent of the twins.
Y was at all material times in a civil partnership with, though separated from, another woman, not a party to the proceedings, who I will refer to as CP. Very shortly before the hearing of the application, X and Y separated. (For the reasons I explained in In re A, para 65, this is legally irrelevant to anything I have to decide.) Both remain deeply committed to the twins and heavily involved in their care. Despite their separation, Y continues "wholeheartedly" to support X's application, saying that the declaration X is seeking "is of fundamental importance to X but also to the children."
I should add that the relief sought by X is not challenged by the children's guardian, by IVF Hammersmith Limited or by the Secretary of State for Health.
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 Lucy Sprinz for X, from Miss Janet Bazley QC and Miss Sharon Segal for the children's guardian, from Miss Eleanor Grey QC for IVF Hammersmith Limited, and from Miss Samantha Broadfoot for the Secretary of State for Health. All, with the exception of Miss Grey, had previously appeared before me in In re A.
I had written evidence from X, Y and CP and, on behalf of IVF Hammersmith Limited, from its senior infertility counsellor, who had been involved with X and Y's treatment, from its quality manager, who was not involved with their treatment but is familiar with the procedures and forms used at that time, and from the consultant gynaecologist who is the director of, and the statutory person responsible for, the clinic. Both X and Y gave oral evidence.
I also have the report of the children's guardian, which refers back to the 'generic' report she had prepared for the hearing in In re A. It is very positive and entirely supportive of the application. The guardian's view did not change when X and Y separated.
Just as in each of the cases I had to consider in In re A, 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 children 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 (in the event, the children). 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(ren). That remained their belief when the children were born.
iv) Y and X, believing that they were entitled to, and acting in complete good faith, registered the birth of their children, as they believed the children to be, showing both of them on the birth certificates as the children's parents, as they believed themselves to be.
v) The first they knew that anything was or might be 'wrong' was when they were subsequently contacted by the clinic.
vi) X's application to the court is, as I have said, wholeheartedly supported by Y.
vii) X and Y do not see adoption as being a remotely acceptable remedy. Nor, I should say, do I.
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.
At the conclusion of the hearing I made an order declaring that X "is the parent of" the twins. I now hand down judgment explaining my reasons for making that order.
The issues
Given the facts and my findings, taken in the context of the analysis in In re A, two issues arise. The first relates to the nature of the clinic's error, which differed from those which I had to consider in In re A. The second arises out of the fact that Y is and was at all material times in a civil partnership with CP.
Issue (1): the clinic's error
As will be appreciated from the analysis in In re A, Y, as the gestational mother, should have signed Form WP, and X, as her partner, should have signed Form PP. In fact, and as a result of what is accepted to have been errors by the clinic, Y completed and signed a Form PP and X completed and signed a Form WP. A similar mistake was made in relation to the Form IC signed by both Y and X. These mistakes seem to have arisen, although nothing turns on the point, because of confusion on the part of the clinic resulting from the fact that X was not merely Y's partner but also the child(ren)'s biological mother.
In these circumstances, and in the light of my findings of fact as set out in paragraph 12 above, it is common ground, and I agree, that, applying the principles laid down in In re A, X is entitled to the relief she seeks. That, in my judgment, is quite clear. What is not so clear, and has been the subject of interesting argument, is whether that is a conclusion I can properly come to simply by a process of construction or whether the proper form of order is a decree of rectification. Miss Fottrell and Miss Sprinz submit that they can succeed on construction, without having recourse to rectification, though acknowledging that rectification is an appropriate remedy. Miss Grey is agnostic, though accepting that rectification is a remedy available to the applicant. Miss Broadfoot and Miss Bazley and Miss Segal point to rectification alone as being the appropriate remedy.
Central to that debate is the decision of the Supreme Court in Marley v Rawlings and another [2014] UKSC 2, [2015] AC 129, a case where a solicitor drafted wills in mirror form for a husband and a wife, each of whom, as a result of a mistake by the...
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