England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		10/12/2015

Mrs Justice Pauffley :


 


1. This is my judgment in proceedings brought under s. 55A of the Family Law Act 1986 for a declaration of parentage in relation to a child born in 2013, C. It arises against a background of precisely the same kind of administrative incompetence by a fertility clinic as was described by the President in Re Human Embryology and Fertilisation Act 2008 (Cases A, B, C, D, E, F, G and H) [2015] EWHC 2602 (Fam). But the surrounding circumstances of this case are very different to those litigated before the President earlier this year.
2. In this instance, there was a substantial dispute between the parents as to the appropriate Children Act orders which should be made in relation to the child. There had also been a live issue as to whether a declaration of parentage should be made in favour of or against the father, F. By her application the child's mother, M, sought a declaration that F is not the father of C. F applied for a declaration that he is.
3. Very shortly before the hearing began, Ms Cover on behalf of M, conceded that F should be declared as the father of the child. But that, very obviously, was not the end of the matter. As the President said in the Re HFEA Act 2008 judgment, "it is elementary that a declaration cannot be granted by consent or default. There must be a proper examination of the facts, assessed in the light of the applicable law, before a judge can be satisfied, as he must be if the relief sought is to be granted, that the claim for the declaration is indeed made out: see, for example, Wallersteiner v. Moir [1974] 3 All ER 217, [1974] 1 WLR 991.
4. In the course of my separate Children Act judgment delivered on 30 November, I said I would be able to find unequivocally that F is entitled to the declaration he seeks. He is the father of C. This judgment explains my reasons for that preliminary indication. It also comments upon the actions and omissions of the Herts and Essex Fertility Centre (HEFC) for identical reasons to those described by the President in his judgment. It is both alarming and shocking that, once more, a court is confronted with an instance of such striking ineptitude from an organisation which is subject to statutory regulation and monitored by a statutory regulator namely the Human Fertilisation and Embryology Authority (HFEA).
5. Like the President, I have considered the need or rather the absence of any requirement to outline the intensely private, mostly medical details arising from the written evidence filed by the parties. Just as in those cases decided by the President just a few months ago, anonymisation would be an insufficient response to what unquestionably are profoundly personal and intimate matters. It is sufficient to record that I have read and considered a volume of material – the written statements of M and F as well as those of the clinicians who treated the couple together with copies of those documents relevant to the parentage question.
6. I have also been immensely assisted by the summaries, chronologies, position statements, written and oral arguments of Ms Fottrell QC and Ms Sprinz on behalf of F, Ms Cover who represents M, Mr Powell on behalf of the Herts and Essex Clinic ('the Clinic') and Mr Ford for the Children's Guardian. In the circumstances of the mother's concession, it was unnecessary to hear detailed oral evidence as to the processes which the parents underwent at the Clinic. But it is necessary to identify the legal framework so as to decide whether on the facts the father's claim for declaratory relief is established.
7. Part 2 of the HFEA 2008 is entitled 'Parenthood cases involving assisted reproduction'. Section 36 of the HFEA 2008 ('Treatment applied to woman where agreed fatherhood conditions apply') provides:

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.

8. Section 37 HFEA 2008 ('the agreed fatherhood conditions') provides:

(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.

9. Guidance is contained within paragraph 63 of the President's judgment in Re HFEA 2008 namely –

i) The court can act on parol evidence to establish that a Form WP or a Form PP (the consent forms required by the HFEA to be signed before the treatment both by the woman and her partner) 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, (an internal consent form) … , 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.

10. In this case, M's written evidence stated that she and F had not signed the relevant consent forms. However, the Person Responsible at HEFC provided evidence describing its operating policy and internal process which included "a checklist of all the requirements … checked and ticked; and the fertility nurse as well as the couple would sign to confirm that all relevant details and consent forms had been signed." Significantly, the checklist was available and confirms this occurred.
11. In addition, this couple's case notes held within HEFC's records "confirm that this checklist was signed by the embryologist" to verify that the WP and PP forms had been duly signed. There is also an internal consent form acknowledging that the couple were being treated together and that F would become the legal parent of any resulting child.
12. Without descending into more of the detail, I am entirely satisfied of the following – (1) that M and F did sign WP and PP forms prior to the commencement of treatment; (2) that the forms as well as the internal consent forms were signed at the treatment information appointment (as the checklist confirms); (3) that the WP and PP forms have subsequently been mislaid or lost; (4) that M and F received appropriate counselling prior to treatment in relation to the consequences of using donor sperm; (5) that notwithstanding the lost forms the clinic acted within the terms of its licence; and accordingly (6) F is C's father.
13. Turning from the specifics relating to parentage, there are a number of associated matters which require comment. The first is as to the bemusing and seemingly unsatisfactory response of HEFC to the Legal Parenthood Audit initiated at the request of the HFEA on 10 February 2014 following the judgment of Cobb J AB v CD and the Z Fertility Clinic [2013] EWHC 1418 (Fam).
14. On 1 September 2014, the HFEA wrote to all clinics to inform them of the outcome of the Audit – namely that "nearly half of all clinics that have responded reported anomalies with their legal parenthood consent." The letter expressly informed clinics – "if you have any doubt about the validity of legal parenthood you should seek your own legal advice. You should also inform the affected patients and their partners."
15. The underlying message was clear. Clinics should have been supporting and assisting parents. They have an obligation to be open and transparent – most particularly with those whose parenthood was potentially disturbed by administrative incompetence. The parents were (and are) the individuals in most need of advice and assistance; they are entitled to and should have been treated with respect and proper concern. In this instance, M and F were left completely on their own without assistance of any kind from HEFC.
16. The medical files for these parents should have been (but were not) included in the Legal Parenthood Audit which was to be completed over a period of three months. The omission has been reported to the HFEA. It is perplexing to say the least that this couple's files were missed when account is taken of the chronology of the mother's telephone calls (from late March / early April 2015) seeking information about the consent forms as well as initial 'phone calls followed then by a formal letter from M's then Solicitors requiring information.
17. At the instigation of the Chief Inspector of the HFEA an investigation is about to begin to discover the reasons for the error. There will be a 'Root Cause Analysis' undertaken by an independent consultancy for UK regulated organisations so as to identify what went wrong. The investigation will also seek to discover whether the HEFC complied with the HFEA's request to sample or review files. Importantly, it will examine how the WP and PP forms were mislaid or lost. It is said on behalf of HEFC that the investigation will be thorough and comprehensive.
18. The findings of the independent consultancy will be reported to the HFEA so that decisions may be made about what action should be taken. The medical director of HEFC assures the court that he is committed to "getting to the bottom of what happened, to taking all remedial action and to working with the HFEA to ensure that the circumstances which gave rise to this case can never happen again."
19. The HEFC has taken other steps including the installation of 'Meditex,' a new Fertility Database which will require the scanning in of Forms WP and PP enabling immediate retention and availability for inspection. The database is comprehensive, internationally recognised and used by other leading clinics across Europe.
20. The second noteworthy matter surrounds HEFC's litigation conduct which has been wholly extraordinary. Notwithstanding both parents' written authorisations and ready agreement to the disclosure of material from HEFC, the process has been fraught and, at best, piecemeal. There would seem to have been a fundamental misunderstanding of the purpose for which disclosure of records was sought.
21. In early May, only 20 or so pages of medical records were made available. Had there been full and proper disclosure at that stage, the eventual shape of the litigation could have been very different. Again and again, letters were written by M's and F's Solicitors. In late May, HEFC was strongly recommended to attend the first court hearing. In response, the Clinic's finance manager stated that it was not accepted that "HFEC had failed to comply with the necessary procedures;" and the suggestion of attending the hearing was declined.
22. On 29 May an order was made joining HEFC as a party and directing it to file any evidence upon which it intended to rely. Two months later, on 28 July, in the absence of any engagement by the Clinic, F's Solicitors wrote a lengthy and informative letter, drawing attention to the 7 cases being heard by the President, seeking agreement to fund the father's legal costs, reiterating the disclosure requests and giving information about the next court hearing.
23. On 10 August, the Clinic's finance manager emailed F's Solicitors saying, "to confirm, we will not intervene nor will we be attending the hearing."
24. On 14 August, I made an order directing HEFC to disclose all and any medical notes relating to M and F's treatment as well as all correspondence (including emails and other communications) with M and F. I also directed the Clinic to file and serve detailed statements from the Person Responsible and the Medical Director. The HEFC was directed to attend the next hearing on 22 October.
25. On 4 September two statements were provided, one from the Person Responsible, the other from the Medical Director. The covering email from the finance manager indicated that the Clinic would not be in attendance at the next hearing as "this is a Family Law matter."
26. I cannot begin to understand how such a misapprehension arose as to the proper role for the Clinic in these proceedings particularly given the unambiguous correspondence from the parties' Solicitors supported as it was by the text of several court orders.
27. On 20 October (about a month after F's Solicitors had drawn the Clinic's attention to the President's HFEA 2008 judgment), an email was sent to the Clinic's finance manager reminding her that HEFC was required to attend the hearing on 22 October. The response was that the Clinic would not be attending.
28. It was therefore necessary, on 22 October, to make an order with a penal notice attached so as to ensure the Clinic's compliance with directions. I also listed a hearing to determine the Clinic's liability for the parties' reasonable costs. Once again, an order was made that the Clinic should attend the next hearing.
29. On 4 November, Russell-Cooke LLP was instructed by the Clinic. Seemingly that was the point at which the Clinic appreciated the need for assistance from lawyers. As Mr Powell explained during his final submissions, the Clinic's first point of contact (when faced with requests for information) had been the insurers. Apparently, though this is difficult to understand given the explicit nature of incoming correspondence, the Clinic had not appreciated the gravity of the situation.
30. There was then inter-solicitor correspondence resulting in further disclosure on 10 November. For the first time, critically important laboratory records were revealed showing affirmative ticks by the WP and PP boxes on forms. Two further and important tranches of documents were disclosed on 19 and 20 November just a very few days before the final hearing listed on 24 November.
31. The detail of the Clinic's litigation conduct is both important and profoundly disappointing set against the framework of the dispute between these parents. The levels of conflict have remained at the highest level throughout. M and F are bitter, resentful and mistrustful of each other. M's position, in all probability, became ever more entrenched as the result of the Clinic's lack of engagement and failure to disclose early.
32. The Clinic's bewildering behaviour has undoubtedly added to a situation of enormous tension in circumstances which were already intensely fraught. It would have assisted greatly if the Clinic had responded to requests for information in a timely and cooperative fashion. Seldom is it necessary to make orders backed with a penal notice against organisations whose aims include a desire to serve the public and to a high standard. It was altogether necessary here.
33. It should also be observed that even by the very end of the hearing, there had been no attempt on the part of the Clinic to engage directly with either M or F. Beyond what had been said formally within the proceedings there has been no correspondence and no apology on the part of anyone at HEFC. That is quite obviously a profoundly shocking state of affairs. Neither parent has had any offer of help, support or explanation for the situation in which they have been entangled. They have been left completely on their own with no ability to understand the reasons for what went so badly wrong.
34. On behalf of the Clinic, Mr Powell accepts that no words would do justice to the emotional distress caused to M, F and their family members. He did not seek to defend the Clinic's actions; and accepts the criticisms levelled. The Medical Director's unreserved apology, said Mr Powell, although late is nonetheless candid. The Medical Director accepts that the Clinic's litigation conduct was wholly unsatisfactory and has prolonged the parents' distress. He intends to write directly to them apologising on behalf of HEFC and would welcome the opportunity to meet each parent to provide an apology in person and answer their questions.
35. Mr Powell indicates that lessons have been learned and contrition on behalf of the Clinic is genuine. It is a good indication of the HEFC's remorse that it has undertaken to pay the parties' costs as they relate to the declaration of parentage proceedings.