SITTING IN BRIGHTON
B e f o r e :
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| - and -
| St BARTHOLOMEW'S HOSPITAL CENTRE
FOR REPRODUCTIVE MEDICINE (CRM)
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| CAFCASS LEGAL
||Advocate to the Court
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
Crown Copyright ©
Mrs Justice Theis DBE:
Introduction and summary
'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)
(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?
(1) Consent to donor insemination (IUD-D). This is a 3 page internal form used by the CRM. It was signed by both parties and the fertility nurse. The first page deals with Y's consent to the proposed treatment, which was signed by Y. The second page notes certain legal consequences, namely that the "donor will not be the legal father of any resulting child" but that, if the donor is foreign, "the law of other countries regarding parentage may not be the same as it is in the UK." It also notes that X and Y have been offered a suitable opportunity for counselling. Both X and Y signed that section.
The form them provides (emphasis added):
All the information listed in paragraph 4.2 of the Human Fertilisation and Embryology Authority's 8th Code of Practice has been given to the patient. The patient has been offered a suitable opportunity to take part in counselling about the implications of the proposed treatment. The patient has been provided with Barts CRM information regarding legal parenthood and HFEA PP and WP forms have been completed.
This section is confirmed by the signature of N (the fertility nurse).
X then completed a further "consent" on the final page of the form:
I am not married to/civil partners with [Y] but I acknowledge that we are being treated together, and provided that we complete HFEA PP and WP forms, I will be the legal father/second parent of any resulting child. I acknowledge receipt of [CRM] information regarding legal parenthood.
This is followed by X's signature.
(2) A WP Form signed by Y consenting to X being the legal parent of the child.
(3) A Characteristics Sheet, setting out the parties' respective physical characteristics for the purpose of choosing a matching donor. Although the form is undated, the medical note for 26.10.12 states "characteristic sheet done v".
The Legal Framework
'(1)...about the proper conduct of activities carried on in pursuance of a licence under this Act and the proper discharge of functions of the person responsible and other persons to whom the licence applies.
(2) The guidance given by the code shall include guidance for those providing treatment services about the account to be taken of the welfare of children who may be born as a result of treatment services...and of other children who may be affected by such births.'
(1) to maintain proper records in such form as the Authority may direct (s 12 (d));
(2) to record such information as the Authority may direct (s 13(2));
(3) such records to include any information recorded in pursuance to subsection (2) above and any consent of a person whose consent is required under Schedule 3 to this Act.
These statutory conditions are set out in the Code and many are replicated as Licence conditions (for example, Licence conditions T60 and T61 effectively re-produce the provisions in s. 13(6) and 13(6A). The 'T' refers to treatment as opposed to licence conditions with the prefix 'R', which refer to research).
If no man is treated by virtue of section 35 as the father of the child and no woman is treated by virtue of section 42 as a parent of the child but—
(a) the embryo or the sperm and eggs were placed in W, or W was artificially inseminated, in the course of treatment services provided in the United Kingdom by a person to whom a licence applies,
(b) at the time when the embryo or the sperm and eggs were placed in W, or W was artificially inseminated, the agreed fatherhood conditions (as set out in section 37) were satisfied in relation to a man, in relation to treatment provided to W under the licence,
(c) the man remained alive at that time, and
(d) the creation of the embryo carried by W was not brought about with the man's sperm,
then, subject to section 38(2) to (4), the man is to be treated as the father of the child.
(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)W has not, since the giving of the notice under paragraph (b), given the person responsible—(i) a further notice under that paragraph stating that she consents to another man being treated as the father of any resulting child, or(ii)a notice under section 44(1)(b) stating that she consents to a woman being treated as a parent of any resulting child, and(e)W and M are not within prohibited degrees of relationship in relation to each other.
(2)A notice under subsection (1)(a), (b) or (c) must be in writing and must be signed by the person giving it.
(3)A notice under subsection (1)(a), (b) or (c) by a person ("S") who is unable to sign because of illness, injury or physical disability is to be taken to comply with the requirement of subsection (2) as to signature if it is signed at the direction of S, in the presence of S and in the presence of at least one witness who attests the signature.
Discussion and Decision
(1) On the particular facts of this case the court can draw the necessary inferences and find, on the balance of probabilities, that the PP form was signed by X on 26 October 2012. Therefore, it was in place prior to the treatment on 30 November 2012 and it is more likely than not subsequently mislaid by the clinic.
(2) Treatment 'under a licence' in s. 37 does not create an additional test that the clinic must be operating in compliance with directions given by the Authority. The Advocate to the Court only accepted this proposition is respect of record keeping.
(1) The parties would not have the form of family that they intended from the outset.
(2) The nature of X's status in relation to Z would be different; he could only acquire the status of legal parent by adoption at a later date.
(3) There would be a fundamental interference with Z's identity as X's daughter.
(4) Adoption of Z by X would mark a difference in his status compared to that of Y. It is recognised the lack of a genetic relationship between X and Z is already a point of difference, but the parties' original decision reflected an intention to override this.
(5) The parties' sense of security in their status as a family has already been shaken by the issue that has been raised over X's status; this insecurity would be entrenched.
(6) If the parties choose to have another child with the donor's sperm, the parties will have the opportunity to ensure that the correct procedures are followed and X is that child's legal parent ab initio. Z would then have a different status to her full sibling, as an adopted child, to the detriment of both children.
(1) The CRM complied with other requirements, such as to offer counselling for X and Y.
(2) The documents that were signed on 26 October are more consistent with the PP form also being signed at the same time. At that appointment Y signed the WP form; X signed an internal CRM form stating that he understood he would become the legal parent upon completion of the signed WP and PP forms; N stated her standard practice for heterosexual couples was to get both forms signed; N signed a declaration that the WP and PP forms have been completed by X and Y.
(3) N in her statement and oral evidence acknowledged the importance of these forms being completed prior to treatment.
(4) I accept N's evidence about how the consent forms were kept on the file; slipped into the open top envelope pocket at the back of the file. The forms were not secured and there was, as N accepted, a risk when putting them into the file in this way that they could slide down behind the file.
(5) There was a wider concern expressed by X and Y about previous records the CRM had lost. Whilst it was not necessary, for the purposes of this hearing, to investigate those other matters it does raise a concern about the robustness of record keeping at the CRM generally.
'..failure to ensure that either a PP form is completed or that a copy of a completed PP form is retained in a patient's records is not a breach of the Act which amounts to a criminal offence. It is instead considered a failure to do something which the clinic was licensed to do to the standard or in the manner required, rather than something which could never be done lawfully in 'pursuance of' its licence.
In addition, the Act gives the Authority the power to impose a very limited range of regulatory sanctions including the addition of conditions, suspension or revocation of the licences where circumstances warrant such action. If it were the case that a clinic's failure to comply with directions or licence conditions rendered its licence invalid or affected the subsistence of the licence, there would be no licence against which the Authority could impose a sanction.'
The letter went on to express the view, although acknowledging it was a matter for the court, that the treatment in this case had been provided lawfully and within the terms of the clinic's licence as the necessary consents were in place at the time of treatment.
(1) It is agreed that the notice required under s 37 (1) (a) in PP form needs to be completed prior to treatment provided to Y.
(2) It follows that if that requirement is complied with (along with other requirements such as completion WP form, counselling etc) then at the time of the birth of the child X is treated as the legal father of the child (by operation of s. 36 HFEA 2008).
(3) If that is the case it would be wholly inconsistent with that provision, and the underlying intention to provide certainty, if that status could then be removed from the father and the child in the event of the clinic mislaying the consent in PP form, possibly many years later.
(4) The requirement to keep records concerning consent is provided by way of a direction pursuant to s. 23 whose requirements shall be complied with. I agree with the analysis in the letter from the Authority that any non-compliance in these circumstances is dealt with through the regulatory powers given to the Authority. As they state in that letter the CRM had co-operated with the Authority about the findings identified by their audit and 'no sanctions were imposed against the clinic and the clinic's licence remains in force'.
(5) There is no evidence in the enacting history of s.37 to suggest any intention to create an additional test of compliance by the clinic with directives given pursuant to s.23 and the acquisition of paternity.