X v Y St Bartholomew's Hospital Centre for Reproductive Medicine (CRM) (Intervener) Cafcass Legal (Advocate to the Court)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Theis |
| Judgment Date | 13 February 2015 |
| Neutral Citation | [2015] EWFC 13 |
| Court | Family Court |
| Docket Number | Case No: ZC14P00742 |
| Date | 13 February 2015 |
[2015] EWFC 13 (Fam)
IN THE FAMILY COURT
SITTING IN BRIGHTON
Mrs Justice Theis
Case No: ZC14P00742
and
and
Mr Gerald Wilson & Ms Laura Scott (instructed by Giles Wilson LLP Solicitors) for the Applicant and the Respondent
Ms Dorothea Gartland (instructed by Bevan Brittan LLP Solicitors) for the Intervener
Ms Marisa Allman (instructed by Cafcass Legal) as Advocate to the Court
Hearing date: 27th January 2015
Mrs Justice Theis DBE:
Introduction and summary
When the parties in this case, an unmarried couple in a secure long term relationship, sought assistance from a fertility clinic to conceive a much wanted child they could not have imagined they would end up in proceedings in the High Court. They, and their child, have been caught up in a situation over which they have had no real control as, not unreasonably, they relied on appropriate steps being taken by others; in particular the fertility clinic they sought advice and treatment from.
This case highlights the important responsibility imposed on licensed clinics that provide fertility treatment, to ensure they comply with all aspects of the relevant statutory provisions and guidance. The somewhat labyrinthine provisions of the relevant statutes, supporting guidance and code must be strictly adhered to by those implementing its provisions on the ground. Particular care is required, as this responsibility is often undertaken in the context of providing treatment to people who have been through a difficult emotional period in their lives; frequently following a number of failed attempts to conceive. Their focus, understandably, is often on the treatment rather than the precise legal formalities of what they are embarking on.
The section in the guidance from the Human Fertilisation and Embryology Authority (the Authority) dealing with Legal Parenthood states
'The centre should explain that there is a difference in law between the legal status of 'father' or 'parent' and having 'parental responsibility' for a child. In any case in which the people seeking treatment have doubts or concerns about legal parenthood or parental responsibility for a child born as a result of treatment services, the centre should advise them to seek their own legal advice.'(para 6.2)
'The centre should establish documented procedures to obtain written informed consent. The centre should retain the signed consent forms and ensure that a copy is available for those who have given consent.' (para 6.8)
The important message from this case is that any person considering fertility treatment should ensure they are, at the very least, familiar with what legal steps need to be taken prior to any such treatment, particularly concerning the issue of consent. This is because any failings by the clinic to follow the requisite procedures may have long term consequences for them, and any child born as a result of the treatment. The requirement in paragraph 6.8 of the guidance to 'ensure that a copy is available for those who have given consent' is somewhat vague. If those who have given consent were provided with a copy of the consent they signed it may have avoided the difficulties in this case.
The applicant in this case, X, seeks a declaration that he is the father of Z, who was born in August 2013. X and his partner, Y, sought assistance from St Bartholomew's Hospital Centre for Reproductive Medicine ('CRM') due to difficulties they had in conceiving a child. Following various tests Y became pregnant through the use of donor sperm and Z was born in August 2013. Both X and Y considered they were the parents of Z in every sense of the word; legally and psychologically.
The arrangements for conferring legal parenthood under the relevant provisions in the Human Fertilisation and Embryology Act 2008 (HFEA 2008) are dependent on mutual compliance by the parties and the relevant clinic with a range of legal duties and procedural requirements; these are underpinned by core regulatory principles applying to licensed centres carrying out activities under the HFEA 1990 and the HFEA 2008.
The difficulties that arose in the case I am concerned with followed an audit of fertility centres undertaken by the Authority as a result of the decision of Cobb J in AB v CD [2013] EWHC 1418. In that case a same sex female couple, AB and CD, had two children conceived through fertility treatment at a clinic. The couple separated, proceedings were issued by CD regarding the living arrangements for the children and an issue arose as to whether CD (who was not the birth mother) was a legal parent to the children. After a comprehensive review of the relevant provisions Cobb J decided the legal requirements under the HFEA 2008 had not been complied with by the clinic, with the result that CD was not the legal parent. This was due to the failure by the clinic to comply with the various requirements prior to treatment, in particular relating to consent, the provision of information and the opportunity for counselling.
In this case the audit at the CRM revealed that the necessary consent by X relating to parenthood prior to treatment (as required by s. 37 HFEA 2008) was not on the file. X should have completed a PP form in circumstances such as this; an unmarried couple using donor sperm where they both wished X to be a legal parent of any child born as a result of the treatment. The PP form records the consent by him to be the legal parent of the child born as a result of any treatment to Y. The form must be signed prior to any treatment. Equally Y should have completed a WP form, which signifies her consent to her partner, X, being the legal parent. The absence of the PP form raised the question as to whether it had been completed at the relevant time, namely prior to treatment. If it hadn't X was arguably not the legal parent to Z, as both he and Y had clearly intended.
The first time X and Y became aware of this issue is when they were contacted, out of the blue, by the CRM and informed that the necessary consent may not have been completed. This was in February 2014, when Z was six months old.
The CRM have made it clear in their dealings with X and Y and their submissions to this court they accept full responsibility for what has occurred, have apologised unreservedly to X and Y and agreed to fund the costs of any application that needed to be made.
An application for a declaration of parentage (pursuant to section 55A Family Law Act 1986) was made by X on 13 September 2014; Y is the Respondent and supports the application. The CRM intervened to assist the court and Cafcass Legal agreed to act as Advocate to the Court. It was not considered necessary to join the child as no separate position on behalf of the child was required.
Within the court bundle I have statements from X and Y, M (the 'person responsible' at the CRM under the terms of the HFEA 2008) and N (the fertility nurse who saw X and Y in the period prior to their treatment). I heard oral evidence from both M and N. When the matter first came before me on 14 January 2015 I directed that the Authority be given notice of this application and state whether they wish to intervene. They did not wish to do so, and set out their position in a letter to the court.
I have had the benefit of detailed written and oral submissions and am enormously grateful for the industry of all advocates in making sure all the relevant information was before the court.
The issues can be summarised as follows:
(1) Did X sign the requisite consent (the 'PP form') at the appointment on 26 October 2012 so that it complied with s.37 (1) HFEA 2008?
(2) If X did, was the PP form subsequently mislaid by the CRM?
(3) Was the treatment 'provided under a licence' as required by section 37 (1) HFEA 2008?
(4) If the PP form was not signed can the court 'read down' s. 37 (1) HFEA 2008 to enable the court to make the declaration of parentage sought?
For reasons which I discuss more fully below, I have concluded, on the facts of this case, that it is more likely than not that X did sign the PP form on 26 October 2012, and it has subsequently been mislaid by the clinic. I have also concluded, in the circumstances of this case, the failure by the clinic to maintain records did not amount to a breach of the licence so as to invalidate it, so that the treatment was 'provided under a licence' as required by s. 37 (1).
Accordingly, I will make the declaration of parentage sought in favour of X. He is Z's
father.
Relevant Background
The parties have been in a relationship for many years. They have been trying to conceive a much wanted child since December 2006. During the last five years they have endured referrals, refusals, re-referrals, testing and form filling before being accepted for treatment at the CRM in early 2012. Initially it was intended by the parties and the CRM that the infertility treatment would proceed using the gametes of both parties. However, further tests on X resulted in a diagnosis of infertility. As a consequence there was a discussion in September 2012 regarding the options. The parties opted for donor sperm and were referred for donor-intrauterine insemination ('IUI-D') to the sperm donor co-ordinator and for counselling.
The parties attended counselling on 16 October 2012. Within the papers there is a note of the matters covered at that session.
On 26 October 2012 the parties attended a 'donor selection and IUI-D information session' with the fertility nurse, N. The file held by the CRM holds the following documentation completed on that day:
(1) Consent to donor insemination (IUD-D). This is a 3 page internal form used by the...
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