Re O (Human Fertilisation)
| Jurisdiction | England & Wales |
| Judge | Sir James Munby |
| Judgment Date | 13 September 2016 |
| Neutral Citation | [2016] EWHC 2273 (Fam) |
| Docket Number | Case number omitted |
| Court | Family Division |
| Date | 13 September 2016 |
[2016] EWHC 2273 (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
Mr James Turner QC (instructed by Osbornes Solicitors LLP) for theapplicant
Ms Dorothea Gartland (instructed by Bevan Brittan LLP) for Barts Health NHS Trust
Ms Deirdre Fottrell QC and Mr Thomas Wilson (instructed by Russell-Cooke LLP) for the child's guardian
Hearing date: 26 July 2016
Judgment Approved
Sir James Munby, President of the Family Division:
In In re A and others (Legal Parenthood: Written Consents) [2015] EWHC 2602 (Fam), [2016] 1 WLR 1325, in which I handed down judgment in September 2015, I had to consider a number of cases which raised issues very similar to those which confront me here. It will be recalled that these issues were first identified by Cobb J in his judgment in AB v CD and the Z Fertility Clinic [2013] EWHC 1418 (Fam), [2013] 2 FLR 1357, handed down in May 2013, and that the legally appropriate way forward was not well understood until, in February 2015, Theis J gave judgment in X v Y (St Bartholomew's Hospital Centre for Reproductive Medicine Intervening) [2015] EWFC 13, [2016] PTSR 1.
Since judgment in In re A, I have given judgments in a number of similar cases: see Re the Human Fertilisation and Embryology Act 2008 ( CaseG) [2016] EWHC 729 (Fam), Re the Human Fertilisation and Embryology Act 2008 ( CaseI) [2016] EWHC 791 (Fam), Re the Human Fertilisation and Embryology Act 2008 ( CaseN) [2016] EWHC 1329 (Fam), Re the Human Fertilisation and Embryology Act 2008 ( CaseJ) [2016] EWHC 1330 (Fam), Re the Human Fertilisation and Embryology Act 2008 ( CaseM) [2016] EWHC 1572 (Fam), and Re the Human Fertilisation and Embryology Act 2008 ( CaseL) [2016] EWHC 2266(Fam). Other judges have also dealt with similar cases: see the judgments of Pauffley J in F v M and the Herts and Essex Fertility Centre [2015] EWHC 3601 (Fam) and of Peter Jackson J in D v D (Fertility Treatment: Paperwork Error) [2016] EWHC 2112 (Fam).
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". I have now given final judgment in thirteen cases (Cases A, B, C, D, E, F, G, H, I, J, L, M and N). This is Case O. Case K, which was before me in July 2016, has been adjourned part heard for further argument. Six further cases (Cases P, Q, R, S, T and U) are currently awaiting final hearing. There is at least one other (Case V) pending. There are probably others, for the HFEA has identified no fewer than 90 cases where there are "anomalies".
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 it was challenged before me, or before Pauffley and Peter Jackson JJ, in any of the other cases. None of it has been challenged 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).
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 relationship with the first respondent, a woman who I will refer to as Y. They entered into a civil partnership in 2009, which was converted into a marriage in 2015. They had planned their family carefully. Each wanted to bear a child, using sperm provided by the same donor. Because X is somewhat older than Y, they decided that X should be the first to have treatment. Following IUI treatment provided by St Bartholomew's Hospital Centre for Reproductive Medicine, operated by Barts Health NHS Trust, which I shall refer to as Barts, a clinicwhich is and was regulated by the HFEA, X gave birth to their first child, who I will refer to as C1, in 2010. C1 had already been conceivedwhen X and Y entered into their civil partnership. Following further treatment at another clinic, Y gave birth to their second child, who I will refer to as C2, some years later. No issue arises in relation to C2; the issue (see below) arises in relation to C1. X seeks, together with other relief, a declaration pursuant to section 55A of the Family Law Act 1986 that Y is, in accordance with section 36 of the 2008 Act, the legal parent of C1. Y is wholeheartedly supportive of X's application.
The clinic, the HFEA, the Secretary of State for Health and the Attorney General have all been notified of the proceedings. With the exception of the clinic, which was represented, although not joined, none has sought either to be joined or to attend the hearing. The clinic's position, entirely supportive of X's application, is set out in various witness statements and in the position statement prepared by Ms Dorothea Gartland, who appeared before me on its behalf. Given the nature of one of the issues (see below), I decided that C1 needed to be joined and a guardian appointed. Happily, it was possible for the same guardian to act in this case as had acted in all the other cases before me where there was a guardian. The guardian was represented by Ms Deirdre Fottrell QC and Mr Thomas Wilson. X was represented by Mr James Turner QC.
I had written evidence from X and Y. They were present throughout the hearing, which took place on 26 July 2016. Neither was required, and neither asked, to give oral evidence.
Just as in each of the cases I had to consider in In re A and in CaseG, CaseI, CaseJ, CaseL, CaseM and CaseN so in this case, having regard to the evidence before me, I find as a fact that:
i) The treatment which led to the birth of C1 was embarked upon and carried through jointly and with full knowledge by both the woman (that is, X) and her partner (Y).
ii) From the outset of that treatment, it was the intention of both X and Y that Y would be a legal parent of C1. 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 Y was the other parent of the child. That remained their belief when C1 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 C1 to be, showing both of them on the birth certificate as C1's parents, as they believed themselves to be.
v) The first they knew that anything was or might be 'wrong' was when, some years later, they were contacted by the clinic.
vi) X's application to the court is, as I have said, wholeheartedly supported by Y.
I add that there can be 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.
Following the hearing I indicated that I would in principle, and subject to them being in appropriate form, make the orders sought. I now (13 September 2016) hand down judgment explaining my reasons for making those orders.
The issues – parentage
Adopting the terminology I have used in previous cases, the primary problem in the present case is very shortly stated. For reasons which cannot now be identified, although X signed, at the appropriate time, a Form WP in proper form, no Form PP signed by Y can be found in the Barts records relating to X's treatment. Nor is there any Form IC signed by Y. However, the Barts Treatment Checklist relating to X's treatment contains the following entry in relation to the Information Session, the date of which – the same date as on the Form WP– has been inserted in manuscript:
"[In print] Attended [added in manuscript v]
"[In print] Partner attended [added in manuscript v]
"[In print] Female Consent to Treatment [added in manuscript v]
"[In print] Male Consent to Treatment [amended in manuscript to read Female and added in manuscript v]"
Two other matters emerge from a close analysis of the relevant Barts file relating to X's treatment. First, it is quite clear from another note of the events which took place on the same day that the Barts Characteristics Sheet was "completed & submitted", but it cannot be found anywhere in the Barts records relating to X's treatment. Secondly, a search of the Barts records relating to X's treatment has revealed the existence of a document relating to a different patient's treatment. So we know that the file relating to X's treatment does not contain (as it should) a document which is known to have existedbut does contain (as it should not) a wholly irrelevant document relating to another patient. The grave deficiencies in the clinic's record-keeping are all too apparent.
In all the circumstances, and having regard to all the evidence I have heard, I am entitled to conclude, and I find as a fact, that the entry in the Treatment Checklist sufficiently evidences a Form PP, signed by X's (the mother's) partner Y at the appropriate time and in proper form. The Form PP, I find, has been lost or mislaid.
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