Re L (A Child) (Non-parentage)
| Jurisdiction | England & Wales |
| Judge | Sir James Munby |
| Judgment Date | 12 September 2016 |
| Neutral Citation | [2016] EWHC 2266 (Fam) |
| Date | 12 September 2016 |
| Court | Family Division |
| Docket Number | Case number omitted |
[2016] EWHC 2266 (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
Ms Deirdre Fottrell QC and Mr Thomas Wilson (instructed by Goodman Ray) for the applicant (X)
Ms Sarah Morgan QC and Ms Lucy Sprinz (instructed by Philcox Gray) for the first respondent (Y)
Mr Hassan Khan (instructed by Bevan Brittan LLP) for Barts Health NHS Trust
Mr Charles Geekie QC and Ms Sharon Segal (instructed by Russell-Cooke LLP) for the children's guardian
Hearing date: 20 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), and Re the Human Fertilisation and Embryology Act 2008 ( CaseM) [2016] EWHC 1572 (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) [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 twelve cases (Cases A, B, C, D, E, F, G, H, I, J, M and N). This is Case L. Case K, which was before me in July 2016, has been adjourned part heard for further argument. I have since heard argument and reserved judgment in another case (Case O). 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 (the 1990 Act) and the Human Fertilisation and Embryology Act 2008 (the 2008 Act) ( 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 until the events I describe below in a relationship with the first respondent, a woman who I will refer to as Y. Each wanted to bear a child, using the same sperm donor. Y gave birth to their first child, who I will refer to as C1. C1 had been conceived before the 2008 Act came into force, so X could not, as a matter of law, be C1's parent. Accordingly, Y alone was registered as C1's parent and Y's name alone appears on C1's birth certificate. 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 clinic which is and was regulated by the HFEA, X gave birth to their second child, who I will refer to as C2, a couple of years later. It will be appreciated that C1 and C2 are half-siblings. No issue arises in relation to C1; the issues (see below) arise in relation to C2. X seeks, together with other relief, a declaration pursuant to section 55A of the Family Law Act 1986 that Y is not the legal parent of C2. Y does not oppose 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 is set out in a witness statement by the individual who is the "person responsible" within the meaning of section 17(1) of the 1990 Act and in the position statement prepared by Ms Dorothea Gartland and adopted by Mr Hassan Khan who appeared before me on its behalf. Given the nature of one of the issues (see below) I decided that C2 needed to be joined and a guardian appointed. Where a child's parentage is challenged, the child must be joined as a party: see Re L (Family Proceedings Court) (Appeal: Jurisdiction) [2003] EWHC 1682 (Fam), [2005] 1 FLR 210. This important principle seems to have been overlooked in AB v CD and the Z Fertility Clinic [2013] EWHC 1418 (Fam), [2013] 2 FLR 1357, where a declaration of non-parentage was made although the child was neither joined as a party nor represented. 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 hearing took place on 20 July 2016. The guardian was represented by Mr Charles Geekie QC and Ms Sharon Segal. X was represented by Ms Deirdre Fottrell QC and Mr Thomas Wilson. Y was represented by Ms Sarah Morgan QC and Ms Lucy Sprinz. The clinic, as I have said, was represented by Mr Khan. I had written evidence from X and Y. 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, 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 C2 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 C2. 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 C2 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 C2 to be, showing both of them on the birth certificate as C2's parents, 1 as they believed themselves to be.
v) The first they knew that anything was or might be 'wrong' was when, some while later, they were contacted by the clinic.
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.
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.
Thus far the history is, in substance, much the same as in all the previous cases I have had to deal with. But at this stage in the narrative, two significant points of difference emerge.
The first relates to the fact that, by the time they were contacted by the clinic, X and Y's relationship was breaking down. They separated shortly afterwards. Y has subsequently married another woman and given birth to their child. That child has no biological relationship with C2 but is C1's half-sibling. Private law proceedings between X and Y were amicably settled, without any order of the court, when, following mediation, they agreed a parenting plan in respect of both C1 and C2. A pattern of shared care was agreed, which the guardian reports is, in general, working well. I do not propose to go into the details, except to note that the arrangements mean that C1 and C2 spend most of their time together being cared for by one or other of the adults. As the guardian puts it, effectively C1 and C2 have two homes. The sibling relationship is strong. The guardian reports C2 as being "confident and secure about … family relationships."
More importantly for present purposes, a key component of the parenting plan was that there should be equivalence between X and Y and C1 and C2 in relation to the children's legal status. Accordingly, X...
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