Factual and Procedural Background
This opinion arises from a series of cases concerning legal parenthood and consent under the Human Fertilisation and Embryology Acts 1990 and 2008. The applicant, a woman referred to as Plaintiff, was in a relationship with another woman, Defendant, with whom she entered a civil partnership in 2009, later converted into marriage. They planned their family using sperm from the same donor, with Plaintiff undergoing fertility treatment first at a regulated clinic operated by Company A (Barts Health NHS Trust). Plaintiff gave birth to their first child, Child 1, in 2010, conceived before their civil partnership. Defendant later gave birth to Child 2 after further treatment at a different clinic. The legal issue concerns the parentage of Child 1.
Plaintiff seeks a declaration under section 55A of the Family Law Act 1986 that Defendant is the legal parent of Child 1 pursuant to section 36 of the 2008 Act. Defendant supports this application. The clinic, the regulatory authority, the Secretary of State for Health, and the Attorney General were notified; only the clinic participated, supporting the application. A guardian was appointed for Child 1, who was represented alongside Plaintiff and Defendant. The hearing took place with written evidence from both parties, who did not give oral evidence.
Legal Issues Presented
- Whether Defendant is legally a parent of Child 1 despite the absence of a signed consent form in the clinic’s records.
- Whether the adoption order made for Child 1, pursuant to Defendant’s adoption application, can be revoked given the mistaken legal status of Defendant as a parent at the time of adoption.
- The legal effect and procedure relating to the revocation of the adoption order and the restoration of Child 1’s original birth certificate.
Arguments of the Parties
Appellant's Arguments (Plaintiff and Defendant)
- Both Plaintiff and Defendant intended to be legal parents of Child 1 and believed all necessary consents were properly given.
- The absence of Defendant’s signed consent form is due to loss or misplacement; the clinic’s treatment checklist evidences Defendant’s consent.
- The adoption order was made under a fundamental legal mistake since Defendant was already the legal parent of Child 1, rendering adoption unnecessary and harmful.
- Revocation of the adoption order is necessary to restore legal and factual reality, remove stigma, and serve Child 1’s welfare interests.
- They seek a declaration of parentage under the relevant statutory provisions and revocation of the adoption order.
Respondent's Arguments (Clinic)
- The clinic acknowledges failings in record-keeping and expresses regret for the distress caused.
- The clinic supports the application for declaration of parentage and revocation of the adoption order.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| In re A and others (Legal Parenthood: Written Consents) [2015] EWHC 2602 (Fam) |
Framework for assessing consent and legal parenthood under the Human Fertilisation and Embryology Acts. |
Applied analyses of statutory scheme, consent forms, and principles to current case facts. |
| AB v CD and the Z Fertility Clinic [2013] EWHC 1418 (Fam) |
Identification of issues relating to consent and parenthood in fertility treatment cases. |
Provided foundational understanding of legal complexities later clarified by subsequent judgments. |
| X v Y (St Bartholomew's Hospital Centre for Reproductive Medicine Intervening) [2015] EWFC 13 |
Clarification of legally appropriate approach to parenthood and consent issues in fertility treatment. |
Guided court’s approach to evidentiary and legal standards in current case. |
| Re W (Inherent Jurisdiction: Permission Application: Revocation and Adoption Order) [2013] EWHC 1957 (Fam) |
High Court’s inherent jurisdiction to revoke adoption orders in appropriate cases. |
Supported court’s jurisdiction to revoke adoption order here. |
| PK v Mr and Mrs K [2015] EWHC 2316 (Fam) |
Application of inherent jurisdiction to revoke adoption orders and public policy considerations. |
Preferred view supporting revocation in exceptional circumstances. |
| Re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239 |
Limits on setting aside adoption orders; finality of adoption; mistake of fact versus law. |
Distinguished present case as involving a fundamental mistake of law, permitting revocation. |
| Webster v Norfolk County Council and the Children (by their Children's Guardian) [2009] EWCA Civ 59 |
High threshold for setting aside adoption orders; miscarriage of justice does not suffice. |
Acknowledged high bar but recognized present case as exceptional and distinct. |
| G v G (Parental Order: Revocation) [2012] EWHC 1979 (Fam) |
Revocation of parental orders under the 2008 Act; procedural and substantive considerations. |
Provided relevant authority on revocation jurisdiction supporting current case. |
Court's Reasoning and Analysis
The court began by referencing prior authoritative judgments that clarified the legal framework governing parenthood arising from fertility treatment, particularly under the Human Fertilisation and Embryology Acts. It accepted as fact that both Plaintiff and Defendant intended Defendant to be a legal parent of Child 1 and that both believed they had properly consented to the treatment. Despite the absence of a signed consent form by Defendant in the clinic’s records, the court found the treatment checklist entry sufficient evidence that Defendant’s consent was given but lost or mislaid.
The court then addressed the adoption order made for Child 1, acknowledging that it was entered under a fundamental legal mistake: Defendant was already the legal parent at the time. This mistake was of law, not fact, and went to the root of the adoption process. The court noted the distress and stigma caused by the adoption, as documented by the guardian and the parties, and found that revocation of the adoption order would restore the status quo ante without uprooting the child from her parents.
Drawing on established case law, the court recognized the inherent jurisdiction to revoke adoption orders in exceptional cases and noted the high threshold for such revocation. However, it concluded that the present case was unprecedented and highly exceptional, justifying revocation to serve the child’s welfare and justice for the parties. The court found no public policy reasons to oppose the order and instead found public policy aligned with justice and the child’s best interests.
Regarding the birth certificate, the court explained the statutory process by which the annotation "Adopted" would be removed upon revocation of the adoption order and confirmed the original birth certificate would be returned to the parties, recognizing its significant personal and emotional importance.
Holding and Implications
The court ordered the revocation ("quashing") of the adoption order concerning Child 1 and granted a declaration of parentage confirming Defendant as the legal parent of Child 1.
The immediate effect is to restore the legal status of the parties as Child 1’s parents from birth, removing the stigma and legal fiction created by the adoption. The original birth certificate will be returned, and future birth certificates will not bear any adoption marking. The court’s decision does not set new precedent beyond confirming the application of existing principles in an unprecedented factual context. It provides a remedial pathway for similar cases involving lost consents and mistaken adoption orders, emphasizing the primacy of child welfare and justice over procedural formality.