The Human Fertilisation and Embryology Act 2008 (Case K)
| Jurisdiction | England & Wales |
| Judge | Sir James Munby, |
| Judgment Date | 19 January 2017 |
| Neutral Citation | [2017] EWHC 50 (Fam) |
| Court | Family Division |
| Docket Number | Case numbers omitted |
| Date | 19 January 2017 |
[2017] EWHC 50 (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 numbers omitted
Ms Deirdre Fottrell QC and Mr Thomas Wilson (instructed by Goodman Ray Solicitors LLP) for the applicant
Mr Leon Glenister (instructed by the Government Legal Department) for the Registrar General on 18 July 2016
Ms Katherine Olley (instructed by the local authority) for the local authority on 13 October 2016
Hearing dates: 18 July 2016, 13 October 2016
Judgment Approved This judgment was handed down in open court
Sir James Munby, President of the Family Division:
Since I handed down judgment in In re A and others (Legal Parenthood: Written Consents) [2015] EWHC 2602 (Fam), [2016] 1 WLR 1325, I have had to consider a number of cases raising issues very similar to those which confront me here. The most recent judgment was in Re the Human Fertilisation and Embryology Act 2008 ( CasesP, Q, R, S, T, U, W and X) [2017] EWHC 49 (Fam). They were the sixteenth to twenty-third of the cases in which I have given a final judgment. This judgment relates to the twenty-fourth case. A further five cases have recently been issued. I am told that at least another two cases are in the pipeline and likely to be issued in the near future.
For the purposes of this judgment I shall take as read the analysis in In re A and the summary of the background to all this litigation which appears in Re the Human Fertilisation and Embryology Act 2008 ( CaseO) [2016] EWHC 2273 (Fam).
The facts
For reasons which will by now be familiar, I propose to be extremely sparing in what I say of the facts and the evidence in these cases.
This case relates to treatment provided by CARE Nottingham, a clinic which is and was regulated by the Human Fertilisation and Embryology Authority. I shall refer to the applicant as X, the respondent as Y and their twin children as C1 and C2. X seeks, together with other relief (see below) a declaration pursuant to section 55A of the Family Law Act 1986 that he is, in accordance with sections 36 and 37 of the Human Fertilisation and Embryology Act 2008, the legal parent of C1 and C2. 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. None has sought either to be joined or to attend the hearing. Given the nature of the issues (see below) I decided that there was no need for C1 and C2 to have a guardian appointed.
The final hearing had been fixed for 18 July 2016 but in the circumstances I refer to below had to be adjourned part heard. The final hearing took place on 13 October 2016. X was represented throughout by Ms Deirdre Fottrell QC and Mr Thomas Wilson. At the hearing on 18 July 2016 the Registrar General was represented by Mr Leon Glenister. At the hearing on 13 October 2016 the relevant local authority (see below) was represented by Ms Katherine Olley. At the end of the hearing on 13 October 2016 I indicated that I was making the orders sought. I now (19 January 2017) hand down judgment explaining my reasons.
Although I am acutely conscious of the stress, worry and anxiety burdening the parents in these cases, and of the powerful human emotions that are inevitably engaged, this case is fundamentally, in terms of the applicable legal analysis, straight-forward and simple. The evidence, which there is no need for me to rehearse in detail, is compelling. The answer in relation to the primary point is clear.
Just as in each of the other cases I have had to consider, 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 and C2 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 X and Y that X would be a legal parent of any child born. 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 X was the other parent of the children. That remained their belief when C1 and C2 were born.
The first X and Y knew that anything was or might be 'wrong' was when, shortly after their birth, they attempted to register C1's and C2's births. The registrar refused to register X as their father.
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
X is a man. He is not married to the respondent mother. Adopting the terminology I have used in previous cases, the problem in this case is very shortly stated. There was neither a Form WP nor a Form PP. However, both X and Y signed a Form IC which, in all material respects, was in the same form as the Forms IC I have considered in previous cases. I need not go into the details.
In the circumstances, X is, in principle, entitled to the declaration he seeks: see In re A, para 63(iii).
Registration of the children's births
Uniquely amongst the twenty-four of these cases that I have now had to consider, in this case the registrar refused to register X as the children's parent – their father. In accordance with directions I had given, I had witness statements on this point from X and Y, from the "person responsible" at the clinic, from the relevant Superintendent Registrar, and from the head of civil registration policy at the General Register Office (GRO) on behalf of the Registrar General. Because of the course events have taken, I can take the evidence quite shortly.
Instructions and guidance to registration officers and GRO staff is issued by the Registrar General in the form of a Handbook for Registration Officers. Chapter B2a in the Handbook covers the registration of births following assisted conception. For present purposes the relevant paragraphs are B2A.1(iii), 2 and 3:
"1 The Human Fertilisation and Embryology Act 2008 provides the following parenthood definitions regarding who is the father or second female parent (i.e. the mother's female partner) of a child born to a woman as a result of the placing in her of an embryo or of sperm and eggs or her artificial insemination:-
Opposite-sex couples
…
(iii) where a woman received fertility treatment from a licensed person in the United Kingdom and no husband is to be regarded as the father … or no spouse or civil partner is to be regarded as the second female parent …, the man with whom the mother has a parenthood agreement (see B2a.2) is regarded as the father;
…
2 Parenthood agreement means where the mother has given to the clinic written notice stating that she consents to her male partner being regarded as the father and the partner has given written notice consenting to being regarded as the father, or where the mother has given to the clinic written notice stating that she consents to her female partner being regarded as the second female parent and the partner has given written notice consenting to being regarded as the second female parent, and that such consent has not been withdrawn.
3 It is not necessary routinely to see copies of the consent notices in order to confirm that the necessary consent had been given and/or that treatment was carried out by a licensed person in the United Kingdom. However, if there is doubt as to the accuracy of information given by an informant in these respects or there is any conflict between the parents as to the facts, copies of their consent notices should be requested in order to establish the correct parenthood before registering. Copies of consent notices should be readily available from informants if needed as UK clinics automatically give copies to their patients at the time of giving consent."
It is conceded that the Handbook had not been up-dated following my judgment in In re A.
The evidence filed on behalf of the Registrar General refers to the fact that paragraph B2a.2 does not specify any more than "written notice", but acknowledges that:
"in the context of parenthood agreement [this] means the WP … and PP … forms."
That reading of the Handbook, I might add, is borne out by the use of the phrase "consent notices" (plural) in paragraph B2a.3.
X and Y attended twice before a registrar, on the second occasion accompanied by someone...
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