Re Human Fertilisation and Embryology Act 2008 (Case N)
| Jurisdiction | England & Wales |
| Judge | Sir James Munby |
| Judgment Date | 08 June 2016 |
| Neutral Citation | [2016] EWHC 1329 (Fam) |
| Docket Number | Case number omitted |
| Court | Family Division |
| Date | 08 June 2016 |
[2016] EWHC 1329 (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 (instructed by Child & Child) for the applicant
Hearing date: 27 May 2016
This judgment was delivered in open court
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, and then again in Re the Human Fertilisation and Embryology Act 2008 ( CaseG) [2016] EWHC 729 (Fam), and in Re the Human Fertilisation and Embryology Act 2008 ( CaseI) [2016] EWHC 791 (Fam), I have had to consider a number of cases which raised issues very similar to those which confront me here.
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 nine cases (Cases A, B, C, D, E, F, G, H and I). This is Case N. At the same time as I hand down judgment in this case I also hand down judgment in Case J, heard on the same day: Re the Human Fertilisation and Embryology Act 2008 ( CaseJ) [2016] EWHC 1330 (Fam). Four further cases (Cases K, L, M, and O) are currently awaiting final hearing. There are at least four others (Cases P, Q, R and S) pending. For all I know there may be others.
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 in CaseG or CaseI. 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).
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. This was a topic to which I returned in CaseG (para 4), supplementing but not altering what I had said in In re A.
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 man who was at all material times in a relationship with the first respondent, a woman who I will refer to as Y. Following IVF treatment provided by a clinic, the Complete Fertility Centre, Southampton, operated by Southampton University Hospitals NHS Trust, which is and was regulated by the HFEA, Y gave birth to their child. X seeks a declaration pursuant to section 55A of the Family Law Act 1986 that he is, in accordance with section 36 of the 2008 Act, the legal parent of the child. Y is wholeheartedly supportive of X's application. Following the treatment, and before the birth of their child, X and Y married. That, no doubt, gives rise to certain presumptions, but it does not affect any of the questions which I have to determine.
The clinic, the HFEA, the Secretary of State for Health and the Attorney General have all been notified of the proceedings. None has sought to be joined. The clinic's position is set out in a witness statement from the individual who is the "person responsible" within the meaning of section 17(1) of the 1990 Act. Although in all the previous cases I have dealt with there has been a report of the child's guardian, I decided that in this case, given the nature of the issues (see below) and given that the principles are now well established, there was no need either to join the child or to appoint a guardian.
As always, I have been greatly assisted in my task by the submissions I have had, both written and oral, from Miss Deirdre Fottrell QC, who appeared for X.
I had written evidence from X and Y. Both were present throughout the hearing, which took place on 27 May 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 and CaseI, 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 the child 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. 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. That remained their belief when the child 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 the child to be, showing both of them on the birth certificates as the child's parents, as they believed themselves to be.
v) The first they knew that anything was or might be 'wrong' was when, about a year 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 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 father of" the child. I now (8 June 2016) hand down judgment explaining my reasons for making that order.
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