B v B (Fertility Treatment: Paperwork Error) [2017] EWHC 599 (Fam)

[2017] EWHC 599 (Fam)Date 23 March 2017
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
THE HONOURABLE MR JUSTICE PETER JACKSON
Between
BApplicantBRespondentsLEEDS TEACHING HOSPITALS NHS TRUSTRespondent
Mr Karl Rowley QC (instructed by Harrison Drury & Co) appeared for ApplicantThe First Respondent attended in person for in personDavid Birch (Capsticks) appeared for Second Respondent
J U D G M E N T
[1]This is an application for a declaration of parentage under s.55A Family Law Act 1986. It is in effect made by a married couple, although he is formally the applicant and the other the first respondent, who seek an order regularising the legal position of the father in relation to a child born to a mother in 2012. The birth was the result of fertility treatment carried out at the Leeds Centre for Reproductive Medicine at Seacroft Hospital, part of the Leeds Teaching Hospitals NHS Trust.[2]The case is yet another where paperwork errors have had potentially serious legal consequences, another case where (to quote the President of the Family Division) medical brilliance has been allied with administrative incompetence. However, the couple has nothing but praise for the medical treatment they received, leading to the birth of a much-loved child. The Trust, for its part, has explained what went wrong, done everything it can to remedy matters for this family, taken steps to improve its procedures, offered an unreserved apology, and agreed to pay the legal costs.[3]The history, which I need only set out in outline, is set out in the applicant’s statement and the statement of Karen Thompson, the lead embryologist and the Trust’s ‘person responsible’ under the legislation.[4]In 2005, the couple (I will call him X and her Y), who were then engaged to be married, approached the Trust for fertility treatment. They underwent counselling and two unsuccessful treatment cycles in March and October 2006. Further treatment cycles (now with donor embryos) occurred in September 2009, March 2010, June 2010, November 2010 and September 2011, and the final one led to the child’s birth.[5]The birth was registered, with both parents being named on the birth certificate. Thereafter, in September 2012, the parents married.[6]Following decisions of Cobb J ([2013] EWHC 1418 (Fam))and Theis J ([2015] EWFC 13), the Human Fertilisation and Embryology Authority (HFEA) directed licensed clinics to audit their paperwork between 2009 and 2014. This clinic’s audit covered 36 cases of children born to couples who were not married or in a civil partnership. In two cases, of which this is one, there were no HFEA consent forms (Forms WP and PP), and in one case one form was incomplete.[7]In May 2014, the Trust, no doubt aware of its error, asked the couple to sign forms WP and PP, which they did. Even then, the forms are now missing from the Trust’s records. They could in any case have no independent effect as they date from after the treatment.[8]In February 2015, the Trust finally informed the couple of the problem, and in December 2016 these proceedings were issued.

The agreed fatherhood conditions

[9]The Human Fertilisation and Embryology Act 2008 came into effect on 5 April 2009. From that date the non-birth partner in a couple who were not married or in a civil partnership will only be recognised as the legal parent of a child born of licensed fertility treatment using donor gametes in the UK if the ‘agreed fatherhood conditions’ are fulfilled.[10]Y is in law the child’s mother: s.33 HFE Act 2008. Had the couple been married at the time of the treatment, X would automatically be the father: s.35.[11]As they were not married at the time of treatment, s.36 makes X (and no other person: s.38) the father if, but only if, the agreed fatherhood conditions in s.37 are satisfied at the time of the treatment.[12]Section 37 reads, so far as relevant: 37 The agreed fatherhood conditions(1) The agreed fatherhood conditions referred to in section 36(b) are met in relation to a man (“M”) in relation to treatment provided to W under a licence if, but only if,— (a) M has given the person responsible a notice stating that he consents to being treated as the father of any child resulting from treatment provided to W under the licence, (b) W has given the person responsible a notice stating that she consents to M being so treated, (c) neither M nor W has, since giving notice under paragraph (a) or (b), given the person responsible notice of the withdrawal of M's or W's consent to M being so treated, (d) … (e) …(2) A notice under subsection (1)(a), (b) or (c) must be in writing and must be signed by the person giving it.(3) …[13]Thus, to satisfy the agreed fatherhood conditions, what is required is that• X must have given notice• In advance• In writing and signed• Stating that he consented to being treated as the father of any child• Resulting from the treatment undergone by Y• Under the clinic’s licence• And Y must have given notice in the same manner.

The form of consent

[14]The HFEA is the body responsible for granting licences for treatment. Licences are subject to a range of mandatory conditions, including the obligation to keep proper records: Human Fertilisation and Embryology Act 1990 s.12(1)(d). In April 2009, the HFEA used its statutory powers to give a direction that the consents required under s.37 must be recorded in a specified form: respectively, Form WP ("Your consent to your partner being the legal parent") and Form PP ("Your consent to being the legal parent").[15]The HFEA direction to use the specific forms WP and PP is a condition of the clinic’s licence. However, a failure to keep proper records does not of itself invalidate the licence conditions so that treatment ceases to be licensed treatment to which s.37(1) applies. This issue, which arose before Cobb J and Theis J, was resolved by the President in In the matter of the Human Fertilisation and Embryology Act 2008 (Cases A, B, C, D, E, F, G and H) [2015] EWHC 2602 (Fam). I respectfully agree with his conclusions, summarised at paragraph 63: 63. I conclude, therefore, that, in principle: i) The court can act on parol evidence to establish that a Form WP or a Form PP which cannot be found was in fact properly completed and signed before the treatment began; ii) The court can 'correct' mistakes in a Form WP or a Form PP either by rectification, where the requirements for that remedy are satisfied, or, where the mistake is obvious on the face of the document, by a process of construction without the need for rectification. iii) A Form IC, if it is in the form of the Barts Form IC or the MFS Form IC as I have described them above, will, if properly completed and signed before the treatment began, meet the statutory requirements without the need for a Form WP or a Form PP. iv) It follows from this that the court has the same powers to 'correct' a Form IC as it would have to 'correct' a Form WP or a Form PP. By way of footnote, the President added:
“I express no views in relation to similar forms used by these or other clinics. I also make clear that nothing I have said should be treated as any encouragement to anyone not to use Form WP and Form PP.”
[16]The result was that the President found that the internal consent (IC) forms used in those cases were sufficient to satisfy s.37 in Case C (where no WP/PP forms were signed), and that they would have been sufficient in Case E and in Case F (where WP/PP forms had been lost). In addition to these three cases, the later decision of the President in Case M [2016] EWHC 1572 (Fam), in which signed IC forms were found to amount to valid consents, is also in point, as are the similar Cases P, Q, R, T, U, W and X: [2017] EWHC 49 (Fam).[17]To take an example, the father in Case M stated that:
"I am not married to [Y], but acknowledge that she and I are being treated together, and that I will become the legal father of any resulting child."
Y, however did not make a similar declaration in the same form. The IC forms in the three other cases (Cases C, E and F – see paragraphs 29-31 of the judgment in Cases A etc.) were in somewhat similar terms to Case M, referring to becoming ‘legally responsible’, or to becoming ‘the father’, or ‘the legal father’.[18]The question, not answered in the above cases, is whether in very similar overall circumstances, but with different IC forms, the same conclusion should be reached in the present case.

What is being consented to

[19]The statute requires consent to a man being treated as the father of any child resulting from the relevant licensed treatment. In the nature of things, treatment may be provided in cycles, as happened here. However, this does not mean that consent has in every case to be renewed before each individual treatment cycle, if the reality is that the couple are engaged in a continuous series of treatments to which their earlier consent is intended to apply. This point was considered and explained by the President in Case U: see paragraph 19 of the judgment. This is not to discourage renewal of consent, but what matters is that valid informed consent can be seen to apply to the treatment that is being provided. So, on the facts, a single consent may well apply to a series of treatment cycles. The existence of consent is a question of fact and it will all depend on the facts of the individual case.

What occurred in this case

[20]I find as facts that (as in Case M and the other similar cases):(1) The treatment which led to the birth of the child was embarked upon and carried through jointly and with full knowledge by both X and Y.(2) It was a single course of treatment, albeit that it took place in stages. If I am wrong about that (and it makes no difference to the outcome) the treatment that led to the child’s birth was a single course of treatment beginning in 2009.(3) From the outset and throughout, it was the couple’s joint intention, and that of the clinic, that X would be a legal parent of the child. Each parent 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.(4) From the moment when the pregnancy was confirmed, both X and Y believed that X was the other parent of the child. That remained their belief when the child was born.(5) X and Y, 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.(6) The first they knew that anything might be 'wrong' was when, some years later, they were contacted by the clinic.(7) X's application to the court is wholeheartedly supported by Y.[21]I further find that as part of the paperwork surrounding their treatment, this couple participated in numerous significant steps:(1) In December 2005, Y signed HFEA form [007], consenting to being treated together with X: that being the criterion under the 1990 legislation.(2) In January 2006, X and Y jointly attended counselling to explore the implications of undergoing fertility for themselves and the resulting child.(3) In December 2005 and June 2006, they jointly signed the Trust’s IC form entitled ‘Consents For Treatment’. This form states that it covers ‘all aspects of treatment’. It ran to 26 pages and has a strong appearance of formality. In its preamble it refers to the need to ‘identify individuals who will have the parental responsibility and which person/s will be responsible for the raising of the child or children that may be born as a result of treatment.’ By signing the form X and Y specifically acknowledged that they would be responsible for the ‘maternal nurturing’ and ‘paternal nurturing’ of the child.(4) On both dates, X (in Y’s presence) signed the IC form consenting to the treatment and stating that: “I am the husband/partner of [Y] and I consent to the course of treatment outlined above. I understand that I will become the legal father of any resulting child.”(5) On both dates, they jointly signed the IC form stating that they understood that the donor had consented to his not becoming the legal father of the child.(6) On both dates, they jointly consented to embryo transfer, and to a number of other procedures regarding genetic material.(7) In November 2006, they again signed an IC form to the same effect as that at (3-6) above.(8) In 2007, they were seen at the clinic in relation to treatment that did not then take place as a donor pulled out.(9) On 2 April 2009, they were seen by the embryologist who was then the Trust’s responsible person to discuss further treatment with a donor embryo. It was this form of treatment that continued until the successful conception. The very imminent change in the law does not appear to have been discussed.(10) In April 2009 and November 2009, they again jointly signed an IC form to the same broad effect as at (3-6) above.(11) There is a note on the IC form just mentioned, written by the member of staff who witnessed the signatures in September and November 2009. It states: ‘HFEA form signed’. What this means is unfortunately not known.(12) In March, June and November 2010, the couple again jointly signed an IC form equivalent to those referred to at (3-6) above, though the form is not now to hand.(13) In June 2011, they again jointly completed an IC form. This form, which differs from the earlier forms, includes a checklist which itself includes reference to ‘The Legalities of Embryo Donation’, including ‘HFEA’, ‘Current Law’ and ‘Birth Certificate’. On this occasion, X and Y both signed a declaration that they understood that donors who had given effective consent would not be the legal parents of any resulting child, and acknowledged that they had been given information about the legalities of embryo donation.[22]Administratively, this is an unhappy picture. It can be seen that the couple signed a mass of consent paperwork in the reasonable belief that the Trust was ensuring that the legal position of themselves and any child born to them was being secured. However, the question is not what they were entitled to expect, but what the legal effect of their actions was.

Argument

[23]On behalf of the applicant, Mr Rowley QC submits that there is sufficient material for the Court to be able to conclude that the provisions of s.37 are satisfied. In 2005 and 2006 X explicitly confirmed in Y’s presence, as witnessed by a member of the clinic’s staff, that he would become the legal father. There is then joint confirmation on no fewer than ten occasions between 2005 and 2011 (six of which related to the treatment with donor embryos after September 2009) that• they would be the persons responsible for any child• they were to be responsible for nurturing any child• the donors would not be the legal parents of any child What, asks Mr Rowley, would have been the purpose of their acknowledging responsibility for the child to the exclusion of the donors unless they knew and intended to convey that they would be the child’s legal parents?[24]Mr Rowley fairly draws attention to the fact that the IC form in this case is not the same as that in Case M, or the IC forms in the three other cases (Cases C, E and F – see paragraphs 29-31 of the judgment in Case A etc.) which referred to the partner becoming ‘legally responsible’, or to becoming ‘the father’, or ‘the legal father’.[25]Finally, Mr Rowley urges that any other reading of the documents in this case would leave this family in a deeply unsatisfactory position. The only other way of X becoming the child’s legal parent would be by adoption, which is seen as utterly inappropriate as a remedy in cases like this: see Case A, paragraph 71(vii) and Case I, paragraph 24 at [2016] EWHC 791 (Fam).

Conclusion

[26]I stand back and consider whether, as the statute requires, X gave written notice that he consented to being treated as the father of any resulting child and whether Y gave notice that she too consented to that. Having done so, my conclusion is that these conditions are satisfied in this case. Whether the treatment is considered to have begun in 2006 or 2009, the whole tone was set by the consents signed by X in the presence of Y and the clinic in 2005 and 2006 to his becoming the legal father of any resulting child. Thereafter, at each stage of the treatment, the couple gave signed, written notice to the clinic evidencing their consent to X becoming the child’s father. The fact that the forms do not contain the wording that is to be found in in Forms WP and PP is no more than a reflection of administrative incompetence on the part of the Trust. What matters is the substance and total effect of the documents, which clearly express the intention of the couple to be treated as full and equal legal parents. Had they been asked at the time what they were doing in signing these documents, they would have said that they were doing what was necessary to achieve this parenthood. Had the clinic been asked what the couple was doing in signing these documents, it would have agreed. The difficulty here only arose because the clinic failed to give the couple the recommended tools for the job, but I find that the couple still managed to get the job done with the tools that they were given.[27]I recognise that this conclusion is based on somewhat different IC forms than those considered in other cases, but nevertheless find that the agreed fatherhood condition in s.37 is satisfied in this case. It is an outcome that conforms with the twin pillars of the legislation – informed consent and child welfare.[28]There will accordingly be a declaration that X is as in law (as he is in life) the child’s legal parent, alongside Y. I will make a separate order in relation to the costs that are to be paid by the Trust, and will direct that the file is not to be accessed by anyone without the permission of the President of the Family Division for the time being. ____________________

Cited in 1 later judgment