C (Declaration of Parentage Written Consent), Re

Factual and Procedural Background

The court considered an application for a declaration of parentage under section 55A of the Family Law Act 1986 concerning a child ("C"). There was an existing child-arrangements order regulating time spent with the Applicant ("M") and the first Respondent ("W"), who held parental responsibility. C was conceived through IVF treatment at a licensed clinic ("the Clinic") using donor sperm, with embryo transfer occurring after the Human Fertilisation and Embryology Act 2008 ("HFEA 2008") came into effect. M and W were in a same-sex relationship during treatment but later separated.

The application arose due to an administrative error by the Clinic: neither M nor W signed the prescribed HFEA forms (Forms WP and PP), but an Internal Consent form signed in March 2008 might satisfy the statutory notice requirements under sections 43 and 44 HFEA 2008. The issue was whether the court could declare W as C's legal parent based on a form signed before the HFEA 2008 changes that legally recognized W as a parent from birth.

W and the Clinic were neutral on the application; the Children's Guardian supported it. The Secretary of State for Health ("SSH") intervened, deferring factual matters to the court but opining that consent under section 44 HFEA 2008 did not require a form signed after the Act's commencement. The Human Fertilisation and Embryology Authority ("HFEA") was notified but did not participate.

Since M and W's separation, issues about C's legal parentage had arisen in multiple proceedings including maintenance assessments and child arrangements orders. The Child Support Appeal First Tier Tribunal adjourned an appeal pending this determination.

The court considered extensive written evidence, including statements from M, W, Clinic personnel, and medical records. The Clinic accepted responsibility for the administrative error, funded legal costs, and apologized.

At hearing commencement, parties agreed that both M and W believed they had consented to W becoming C's parent, believed they had signed all required documents, and maintained this belief until attempts to register W as a parent failed.

Legal Issues Presented

1. Whether the court can make a declaration of parentage that W is a legal parent of C based on an Internal Consent form signed before the commencement of the HFEA 2008, despite the absence of the prescribed Forms WP and PP.
2. Whether the Internal Consent form satisfies the written consent and notice requirements under sections 43 and 44 of the HFEA 2008.
3. Whether the timing of the consent (pre-HFEA 2008) affects its validity under the statutory scheme.
4. Whether the court may rectify or interpret erroneous wording in the consent forms (e.g., "father" instead of "parent").
5. What the implications are for parental responsibility following a declaration of parentage under section 43 HFEA 2008.

Arguments of the Parties

Appellant's Arguments (Applicant "M")

• M and W embarked on fertility treatment jointly intending to both be legal parents of any resulting child.
• The Clinic treated them as a couple throughout, offering counselling and joint appointments.
• Both signed Internal Consent forms in March 2008 stating W would become the legal father of any resulting child, though unaware at the time that W could not legally be a parent without additional forms.
• Had they been asked to sign Forms WP and PP after the HFEA 2008 came into force, they would have done so.
• They attempted to register W as a parent on C's birth certificate based on their understanding that all necessary steps had been taken.
• The Clinic acknowledged that their Internal Consent forms covered the consent required for legal parenthood and that the failure to complete WP and PP forms was an administrative oversight.
• The wording "legal father" in the Internal Consent forms should be rectified to "parent" under established legal principles.
• There is no statutory requirement that consent must be given after HFEA 2008 commenced; the timing of the consent before treatment suffices.
• The court should take a purposive approach, focusing on the intentions and the statutory scheme rather than procedural errors by the Clinic.
• Without a declaration, C's rights under Article 8 of the UN Convention on the Rights of the Child would be infringed, denying him legal recognition of his relationship with W.

Intervener's Arguments (Secretary of State for Health)

• The court should apply the analysis from Munby P in Re A and Others, confirming that the written notices signed before treatment satisfy the statutory requirements.
• The difference in treatment of male and female consents before HFEA 2008 is based solely on gender but does not invalidate the consent itself.
• The issue of parentage should be resolved promptly to provide legal certainty for the child and parents.

Other Parties

The Clinic and W remained neutral on the application. The Children's Guardian supported the application emphasizing the child's need for legal certainty and security in parentage.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by recognizing the fundamental importance of a child's identity, including legal parentage, and the impact on rights and obligations. The court considered the statutory framework of sections 43 and 44 HFEA 2008, which require written, signed consent by both parties prior to treatment, but do not mandate a specific form or that consent post-date the Act's commencement.

The court found that the Internal Consent forms signed by M and W in March 2008 met the statutory requirements of written notice and consent, despite being signed before the HFEA 2008 came into force. The forms explicitly stated W's consent to be treated as the legal father (to be read as "parent") of any resulting child. The court applied principles from Re A and Others allowing rectification of erroneous wording, replacing "father" with "parent".

The court rejected any argument that the timing of consent invalidated it, noting that the legislation emphasizes consent before treatment, not after commencement of the Act. The court also placed weight on the parties' shared intention and belief that W was a legal parent, the Clinic's treatment of them as a couple, and the Clinic's acceptance of responsibility for administrative errors.

The court acknowledged the importance of resolving legal parentage to secure the child's rights under the UN Convention on the Rights of the Child and ECHR Articles 8 and 14, avoiding discriminatory outcomes between same-sex and opposite-sex couples. The court emphasized that procedural errors by the Clinic should not prejudice the child's legal status.

Finally, the court noted the importance of resolving such issues promptly to provide lifelong legal certainty and security for the child and parents.

Holding and Implications

The court granted the declaration of parentage sought, declaring W to be a legal parent of C.

Additionally, the court ordered that W shall have parental responsibility for C pursuant to section 4ZA(1)(a) of the Children Act 1989, following the declaration under section 43 HFEA 2008.

The direct effect of this decision is to provide C with legal recognition of both parents, securing his rights and removing ongoing uncertainty. No new precedent was established beyond applying existing principles to the particular facts concerning pre-commencement consent forms and administrative error by the Clinic.