The Human Fertilisation and Embryology Act 2008 (Case I)
| Jurisdiction | England & Wales |
| Judge | Sir James Munby |
| Judgment Date | 12 April 2016 |
| Neutral Citation | [2016] EWHC 791 (Fam) |
| Court | Family Division |
| Date | 12 April 2016 |
| Docket Number | Case number omitted |
[2016] EWHC 791 (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 Marisa Allman (instructed by Graysons) for the applicant
Miss Sarah Morgan QC (instructed by Goodman Ray) for the child's guardian
Hearing date: 6 April 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, and then again in Re the Human Fertilisation and Embryology Act 2008 ( CaseG) [2016] EWHC 729 (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 eight cases (Cases A, B, C, D, E, F, G and H). This is Case I. Six further cases (Cases 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 it was challenged before me in CaseG. 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, CARE Sheffield, operated by the Care Fertility Group, 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. Since the birth of their child, X and Y have married. That does not, however affect, any of the questions which I have to determine.
Neither the clinic nor the Secretary of State for Health is a party to the proceedings. Both have made clear, however, that they do not challenge the relief sought by X. 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. The Secretary of State's position is set out in a detailed letter from the Government Legal Department ("the GLD"). The report of the child's guardian is very positive and entirely supportive of the application.
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 Marisa Allman for X and from Miss Sarah Morgan QC for the guardian.
I had written evidence from X and Y. Both were present throughout the hearing, which took place on 6 April 2016. Y gave oral evidence.
Just as in each of the cases I had to consider in In re A and in CaseG, 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 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) Y and X, 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, 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 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. This is a matter which the GLD helpfully suggested might benefit from further exploration. Having been guided through that process by Miss Fottrell I am entirely satisfied that the necessary counselling was provided by the clinic. I do not propose to go into the details. It suffices to record that my conclusion is based in part on the very clear evidence of X and Y and in part on what was recorded contemporaneously by the clinic in written documents.
At the conclusion of the hearing I made an order declaring that X "is the father of" the child. I now (12 April 2016) hand down judgment explaining my reasons for making that order.
The issues
This case raises issues I have not previously had to consider. They arise from the fact that the relevant consents were provided by X and Y shortly before the 2008 Act came into force on 6 April 2009, whereas the relevant treatment commenced, on 6 April 2009, after the 2008 Act had come into force. Forms WP and PP were introduced with effect from 6 April 2009 as part of the new scheme introduced by the 2008 Act. Prior to that, the relevant form used for the purposes of the original scheme under the 1990 Act was what I have called a Form IC. The clinic's mistake was in failing to appreciate, despite all the guidance on the point previously circulated by the HFEA, that, because the treatment commenced on 6 April 2009, it was necessary to comply with the requirements of the 2008 Act. Apparently, staff at the clinic believed that the requirements of the 2008 Act applied only to procedures carried out after 6 April 2009 and did not appreciate that they applied to procedures carried out on and from 6 April 2009.
In these circumstances, given the facts and my findings, taken in the context of the analysis in In re A, three issues arise. The first is whether the language of the Form IC, a document signed by X and Y on 27 February 2009, is apt to satisfy the requirements of sections 36 and 37 of the 2008 Act. The second is whether, assuming it is, the Form IC has that effect notwithstanding the coming into force of the 2008 Act. The third arises because, as completed, the Form IC showed that what was going to be used was X's sperm whereas in fact what was used was the sperm of an anonymous donor.
The first issue: I need not set out the contents of the Form IC in any detail. For present purposes, there are two things to be noted. The first (see section 37(1)(a) of the 2008 Act) is that X signed a declaration in the following terms:
"I am the male partner of [Y]. I acknowledge that she and I are being treated together … In consenting to the course of treatment outlined above, I understand that I will become the legal father of any resulting child(ren)."
The other (see section 37(1)(b) of the 2008 Act) is that nowhere in...
To continue reading
Request your trial
-
Re L (A Child) (Non-parentage)
...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 ......
-
Re O (Human Fertilisation)
...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 ......
-
The Human Fertilisation and Embryology Act 2008 (cases AD, AE, AF, AG and AH) (No 2)
...[2015] EWHC 2602 (Fam), [2016] 1 WLR 1325 6.4.2016 Re HFEA 2008 (Case G) [2016] EWHC 729 (Fam) 12.4.2016 Re HFEA 2008 (Case I) [2016] EWHC 791 (Fam) 8.6.2016 Re HFEA 2008 (Case N) [2016] EWHC 1329 (Fam) 8.6.2016 Re HFEA 2008 (Case J) [2016] EWHC 1330 (Fam) 30.6.2016 Re HFEA 2008 (Case M) [......
-
Re Human Fertilisation and Embryology Act 2008 (Case N)
...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 2 In my judgment in In re......