The Human Fertilisation and Embryology Act 2008 (cases P, Q, R, S, T and U) (No 2)
| Jurisdiction | England & Wales |
| Judge | Sir James Munby |
| Judgment Date | 13 October 2017 |
| Neutral Citation | [2017] EWHC 2532 (Fam) |
| Court | Family Division |
| Date | 13 October 2017 |
| Docket Number | Case numbers omitted |
[2017] EWHC 2532 (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 (instructed by Goodman Ray) for the applicants
Ms Sarah Morgan QC and Ms Sharon Segal (instructed by DAC Beachcroft LLP) for Care Fertility Group Manchester
Ms Eleena Misra (instructed by Blake Morgan LLP) for the Human Fertilisation and Embryology Authority
Ms Fiona Paterson (instructed by Berryman Lace Mawer) for Dr X
Hearing date: 18 July 2017
Judgment Approved
This judgment was handed down in open court
Sir James Munby, President of the Family Division:
I gave judgment in these six cases, Cases P, Q, R, S, T and U, on 19 January 2017: Re Human Fertilisation and Embryology Act 2008 (Cases P, Q, R, S, T, U, W and X) [2017] EWHC 49 (Fam). In each of these six cases the treatment had been given by Care Fertility Group Manchester (the clinic). I recorded (judgment, para 6) that an additional point arose which did not bear on the primary relief being sought in any of these cases and which, it had been agreed, should be dealt with at a separate hearing. In the event, that hearing took place on 18 July 2017. I now (13 October 2017) hand down judgment.
The point, which is one of general public interest, arises in this way.
It will be recalled (see my judgment, handed down on 11 September 2015, in In re A and others (Legal Parenthood: Written Consents) [2015] EWHC 2602 (Fam), [2016] 1 WLR 1325, paras 4, 5) that, following the handing down by Cobb J on 24 May 2013 of his judgment in AB v CD and the Z Fertility Clinic [2013] EWHC 1418 (Fam), [2013] 2 FLR 1357, which had brought to public attention and, more particularly, to the attention of the Human Fertilisation and Embryology Authority (the HFEA) the lamentable shortcomings in a clinic which, in the judge's view, had fallen "far short" of its obligations and had failed to comply with the conditions of the licence granted to it by the HFEA, the HFEA, having undertaken various investigations, decided to require all 109 licensed clinics to carry out an audit of their records. For present purposes the relevant direction was in a letter from the Chief Executive of the HFEA dated 10 February 2014, requiring the audit to be completed within three months.
So far as concerns the clinic, the subsequent events, which are not in dispute, can be summarised as follows, for there is no need for me to go into the detail. The clinic's audit was initiated in March 2014 and completed the next month. The task was delegated to others by the clinic's "person responsible", at that time Dr X. Dr X did not undertake any personal checks. It is sadly all too apparent that the audit, which identified four cases in which there were anomalies, was undertaken without proper supervision and in an inadequately robust and probing manner. Thus, it is conceded by the clinic that the audit considered only whether the relevant forms were present or absent and did not consider the accuracy of, or whether there were any defects in, those forms which were present.
On 1 March 2016, the HFEA carried out a routine unannounced inspection of the clinic. A sample of 10 files were examined; anomalies were detected in two. This obviously raised concerns as to the robustness of the audit undertaken by the clinic in 2014. Following this, and before the HFEA's planned re-inspection on 16 March 2016, the clinic carried out its own audit, completed on 14 March 2016. This revealed a further 17 cases where anomalies were detected.
These events are obviously concerning, though they are not the focus of this judgment. Their significance for present purposes is what happened next.
On 15 March 2016, after the clinic had completed its audit and the day before the HFEA's re-inspection was due, Dr X drafted and arranged the sending to each of the affected couples of a letter which, he accepts, he prepared and sent out without consultation with colleagues and without having obtained specific legal advice as to the content. The letters took the following form:
"My reason for contacting you is that we have recently undertaken an audit of all consent forms undertaken in treatment such as yours and we have noted that the PP and WP forms necessary to confirm legal parenting are not dated on all of the pages. I enclose copies of the forms so that you can see this. Although this may seem to be a little 'nit-picking' and obviously the intent to being legal parents is there, I would be grateful if you could look through your records to see if you have an appropriately signed and dated copy of the PP and WP forms. If so I would be grateful if you could forward this to us in the stamped addressed envelope provided.
An alternative would be for you to sign the enclosed declarations, which confirm that you are aware of the implications of being legal parents.
Whilst I am sorry to bother you, these forms have been used in some legal cases in the past and therefore I think it very important that we get it right to avoid any ambiguity in this regard. Should you have any questions or queries please don't hesitate to let me know."
Enclosed with the letter was a declaration in the following terms:
"I [name] confirm that I completed and signed the Consent to Legal Parenthood form WP (copy attached) on [date]. The form was completed before sperm, egg or embryo transfer which took place on [date]. I confirm, before completing this form, I was provided with all the relevant information needed to make a full informed decision about my partner being the legal parent of any client born from my treatment including information about:
• The different options set out in the WP form
• The implications of me giving my consent
• The consequences of withdrawing this consent, and
• How I can make changes to, or withdraw, my consent
• I was also provided with the opportunity to have counselling.
I acknowledge in completing the WP form I have, in error, omitted to date any of the boxes on the consent form. I confirm that in signing this form on [date] it was my first intention to consent to my partner being the legal parent of any child born from my treatment."
Later the same day, 15 March 2016, senior management at the clinic discovered what had happened, but by then the letters had already been sent out. Subsequently, steps, which there is no need for me to describe in detail, were taken by the clinic, in consultation with the HFEA, to remedy matters. The clinic wrote again to all the affected couples on 29 March 2016. This letter included the following:
"In the time since we contacted you we have been speaking to our legal advisors. They have recommended that we should contact you again to explain in more detail the options that are open to you (including completing a declaration as you were advised in our original correspondence) but before we do that, we want to get their opinion on the specific anomalies that...
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Nf v R
...is no third “competing parent” - the sperm donor. 134. Sir James Munby P in In re P and others (Legal Parenthood: Written Consents) [2017] 4 WLR 183 poses the all important question of “Who is my parent? Is this my child?” in a surrogacy “14. I venture to repeat at this point what I said in......