The Human Fertilisation and Embryology Act 2008 (cases AD, AE, AF, AG and AH) (No 2)
| Jurisdiction | England & Wales |
| Judge | Sir James Munby,Family Division |
| Judgment Date | 13 July 2017 |
| Neutral Citation | [2017] EWHC 1782 (Fam) |
| Court | Family Division |
| Date | 13 July 2017 |
| Docket Number | Case numbers omitted |
[2017] EWHC 1782 (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
Miss Elizabeth Isaacs QC and Mr Adem Muzaffer (instructed by Natalie Gamble Associates) for the applicants
Hearing date: 31 March 2017
Judgment Approved
This judgment was handed down in open court
Sir James Munby, President of the Family Division:
I gave judgment in these five cases on 5 May 2017 following hearings on 31 March 2017: Re Human Fertilisation and Embryology Act 2008 (Cases AD, AE, AF, AG and AH) [2017] EWHC 1026 (Fam). The cases were unproblematic and in each case the answer was simple and clear. The very fact that this was so prompted Miss Elizabeth Isaacs QC and Mr Adem Muzaffer, who appeared for each of the applicants, to address me on certain matters of practice and procedure with a view to exploring whether the process in these sensitive and, for the parents, very stressful cases might be streamlined and speeded up. They invite me to give guidance to ensure that future applications can be resolved, as they put it, as quickly, efficiently and compassionately as possible so as to encourage applications to be made where necessary. In particular they invite me to consider what the approach ought to be in what they call the more straightforward and undisputed cases.
I have now given thirteen judgments, covering, in all, 34 of these cases. A chronological list is set out in Annex A. It is apparent from the more recent judgments that many of the points that are likely to arise in these cases have now been identified and resolved and that, in consequence, most of these cases present no difficulty in resolution once the relatively few key facts have been identified and correctly analysed. Case AD and Case AE (see Re Human Fertilisation and Embryology Act 2008 (Cases AD, AE, AF, AG and AH) [2017] EWHC 1026 (Fam), paras 10–13), which I take at random, illustrate this forensic reality. In principle, therefore, I am receptive to Miss Isaacs and Mr Muzaffer's plea.
Their helpful submissions begin with the law and practice in relation to the grant of declaratory relief. For present purposes the relevant authorities begin with Wallersteiner v Moir [1974] 1 WLR 991, but Miss Isaacs and Mr Muzaffer took me to a number of more recent authorities: Patten v Burke Publishing Co Ltd [1991] 1 WLR 541, Aitbelaid v Nima (1991) The Times 19 July 1991, Financial Services Authority v John Edward Rourke (trading as J E Rourke & Co) [2001] All ER (D) 266 (Oct), Laver Fabergé Ltd v Colgate-Palmolive Co [2005] EWHC 2655 (Pat), [2006] FSR 19, Animatrix Ltd and ors v O'Kelly [2008] EWCA Civ 1415, [2008] All ER (D) 161 (Dec), Hayim and ors v Couch [2009] EWHC 1040 (Ch), Re the Charity known as Shree Swaminarayan Satsang, Hirani and ors v Hirani and ors [2012] EWHC 1645 (Ch), Pavilion Property Trustees Ltd and anor v Permira Advisers LLP and anor [2014] EWHC 145 (Ch), and Singh v Singh and anor [2014] EWHC 2762 (Ch).
While I am grateful to Miss Isaacs and Mr Muzaffer for their industry and assistance I can take the matter quite shortly.
The fact that a claim has gone by concession or consent does not prevent the court granting a declaration. And in an appropriate case a declaration can be granted even though the case has proceeded to a conclusion without a full-blown trial and without the court hearing oral evidence. 1
But this does not mean that a declaration can be granted by consent or concession without more ado. As I said in In re A and others (Legal Parenthood: Written Consents) [2015] EWHC 2602 (Fam), [2016] 1 WLR 1325, para 12, referring to Wallersteiner v Moir [1974] 1 WLR 991:
"It is elementary that a declaration cannot be granted by consent or by default. There must be a proper examination by the court of the relevant facts, assessed in the light of the applicable law, before a judge can be satisfied, as he must be if the relief sought is to be granted, that the claim for the declaration is indeed made out."
Nothing in the authorities to which I have been taken persuades me that this is anything other than a perfectly accurate statement of the law and practice of the courts, the Family Division just as much as the Chancery Division. And to make an obvious point, the "proper examination by the court" to which I referred is particularly important where the declaration goes, as in all these cases under the Human Fertilisation and Embryology Act 2008, to a question of personal status.
As will be apparent from the judgments listed in Annex A, in many of these cases the applicants have been represented by Ms Deirdre Fottrell QC acting on the instruction of Goodman Ray. Over the course of time, they have evolved, with my approval and endorsement, standard forms of orders for use in those cases. At my suggestion, these standard forms have been reviewed, and adjustments proposed for my consideration, by Ms Fottrell and Ms Jemma Dally of Goodman Ray, and by Miss Isaacs and Mr Muzaffer and their instructing solicitor, Ms Natalie Gamble of Natalie Gamble Associates. I am grateful to all of them for their assistance. I now publish the latest
versions of these standard forms of order so that they may be used, if desired, by the professions and, if approved in particular cases, by the judges.It may be helpful to explain the thinking which underlies these drafts. I can summarise it as follows, starting with the standard directions order (Annex B):
i) The applicant is the non-birth mother/father. The respondent is the birth mother.
ii) The child is not required to be joined as a respondent (see the Table in FPR 8.20(1)), though under FPR 16.2 the child may be joined if the court considers it is in the best interests of the child to be made a party to the proceedings. In practice this no longer happens unless the application is for a declaration of non-parentage (see Re Human Fertilisation and Embryology Act 2008 (Case L) [2016] EWHC 2266 (Fam)) or the case raises some novel point the proper resolution of which requires the participation of the child or the assistance of a guardian.
iii) Before the application is issued, the applicant has usually already obtained copies of the relevant files from the clinic (standard directions order, para 8(iv)) and is thus able to formulate his/her case with precision.
iv) Given (a) the nature of the issues, (b) the fact that the court is being invited to make a declaration as to status, and (c) the fact that, almost invariably, these cases proceed with both parents in agreement (so that, typically, the respondent supports the making of the order sought by the applicant), it is appropriate, and settled practice, to require notification of the proceedings to (i) the clinic, (ii) the Human Fertilisation and Embryology Authority, (iii) the Attorney General and (the Secretary of State for Health (standard directions order, para 5). This is to enable them, if they think it appropriate for whatever reason, to seek to intervene (standard directions order, para 7). In current practice, the latter three almost never do so, and the clinics not very often, but this process is, in my judgment, an important safeguard whose continuing utility is not be assessed by the frequency (or, rather, infrequency) of intervention but by the salutary effect on litigants of knowing that, to put it colloquially, public authorities may indeed intervene if they have reason to suspect that something 'fishy' is, or may be, going on.
v) Initial directions, in the form of the standard directions order are typically made on paper without the need for any directions hearing (standard directions order, para 4) – so the matter can proceed direct to a final hearing (standard directions order, paras 8–11).
One of the points raised by Miss Isaacs and Mr Muzaffer is the suggestion that there may be cases where an oral final hearing can properly be dispensed with, the judge making the order on the papers. I would not rule out the possibility of proceeding in this way in an appropriate case. What such a case might be, and whether it would be appropriate to proceed in this way in a particular case, must, in the final analysis, be a matter for the judge. It is not something in relation to which it would be appropriate for me to offer any specific guidance.
All I can properly say is this:
i) I have difficulty in seeing how it could ever be appropriate to dispense with an oral final hearing if the claim for relief is dependent on the parties' evidence of what did or did not happen (for example, where parol evidence is relied on to prove the existence of a document which cannot be found).
ii) The kind of case in which it might be appropriate to proceed without an oral final hearing is where (a) the application turns entirely on written documents from the clinic's file, (b) the factual circumstances are the subject of a previous judgment which is precisely in point, (c) there is no dispute between the parties, (d) there has been no intervention by the Human Fertilisation and Embryology Authority, the Attorney General or the Secretary of State for Health, and (e) the applicant and respondent both wish to proceed without an oral hearing. To accommodate the possibility of such a process, paras 12–13 are now added to the standard directions order.
In relation to this I add three points.
First, and however straight-forward the case may be, either the applicant or the respondent must be entitled to an oral final...
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