England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Case numbers omitted Royal Courts of Justice Strand, London, WC2A 2LL
		13 July 2017

This judgment was handed down in open court

Sir James Munby, President of the Family Division :

1. I gave judgment in these five cases on 5 May 2017 following hearings on 31 March 2017: Re Human Fertilisation and Embryology Act 2008 (Cases AD, AE, AF, AG and AH) [2017] EWHC 1026 (Fam). The cases were unproblematic and in each case the answer was simple and clear. The very fact that this was so prompted Miss Elizabeth Isaacs QC and Mr Adem Muzaffer, who appeared for each of the applicants, to address me on certain matters of practice and procedure with a view to exploring whether the process in these sensitive and, for the parents, very stressful cases might be streamlined and speeded up. They invite me to give guidance to ensure that future applications can be resolved, as they put it, as quickly, efficiently and compassionately as possible so as to encourage applications to be made where necessary. In particular they invite me to consider what the approach ought to be in what they call the more straightforward and undisputed cases.
2. I have now given thirteen judgments, covering, in all, 34 of these cases. A chronological list is set out in Annex A. It is apparent from the more recent judgments that many of the points that are likely to arise in these cases have now been identified and resolved and that, in consequence, most of these cases present no difficulty in resolution once the relatively few key facts have been identified and correctly analysed. Case AD and Case AE (see Re Human Fertilisation and Embryology Act 2008 (Cases AD, AE, AF, AG and AH) [2017] EWHC 1026 (Fam), paras 10-13), which I take at random, illustrate this forensic reality. In principle, therefore, I am receptive to Miss Isaacs and Mr Muzaffer's plea.
3. Their helpful submissions begin with the law and practice in relation to the grant of declaratory relief. For present purposes the relevant authorities begin with Wallersteiner v Moir [1974] 1 WLR 991, but Miss Isaacs and Mr Muzaffer took me to a number of more recent authorities: Patten v Burke Publishing Co Ltd [1991] 1 WLR 541, Aitbelaid v Nima (1991) The Times 19 July 1991, Financial Services Authority v John Edward Rourke (trading as J E Rourke & Co) [2001] All ER (D) 266 (Oct), Laver Fabergé Ltd v Colgate-Palmolive Co [2005] EWHC 2655 (Pat), [2006] FSR 19, Animatrix Ltd and ors v O'Kelly [2008] EWCA Civ 1415, [2008] All ER (D) 161 (Dec), Hayim and ors v Couch [2009] EWHC 1040 (Ch), Re the Charity known as Shree Swaminarayan Satsang, Hirani and ors v Hirani and ors [2012] EWHC 1645 (Ch), Pavilion Property Trustees Ltd and anor v Permira Advisers LLP and anor [2014] EWHC 145 (Ch), and Singh v Singh and anor [2014] EWHC 2762 (Ch).
4. While I am grateful to Miss Isaacs and Mr Muzaffer for their industry and assistance I can take the matter quite shortly.
5. The fact that a claim has gone by concession or consent does not prevent the court granting a declaration. And in an appropriate case a declaration can be granted even though the case has proceeded to a conclusion without a full-blown trial and without the court hearing oral evidence.^[1]
6. But this does not mean that a declaration can be granted by consent or concession without more ado. As I said in In re A and others (Legal Parenthood: Written Consents) [2015] EWHC 2602 (Fam), [2016] 1 WLR 1325, para 12, referring to Wallersteiner v Moir [1974] 1 WLR 991:

"It is elementary that a declaration cannot be granted by consent or by default. There must be a proper examination by the court of the relevant 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."

Nothing in the authorities to which I have been taken persuades me that this is anything other than a perfectly accurate statement of the law and practice of the courts, the Family Division just as much as the Chancery Division. And to make an obvious point, the "proper examination by the court" to which I referred is particularly important where the declaration goes, as in all these cases under the Human Fertilisation and Embryology Act 2008, to a question of personal status.

7. As will be apparent from the judgments listed in Annex A, in many of these cases the applicants have been represented by Ms Deirdre Fottrell QC acting on the instruction of Goodman Ray. Over the course of time, they have evolved, with my approval and endorsement, standard forms of orders for use in those cases. At my suggestion, these standard forms have been reviewed, and adjustments proposed for my consideration, by Ms Fottrell and Ms Jemma Dally of Goodman Ray, and by Miss Isaacs and Mr Muzaffer and their instructing solicitor, Ms Natalie Gamble of Natalie Gamble Associates. I am grateful to all of them for their assistance. I now publish the latest versions of these standard forms of order so that they may be used, if desired, by the professions and, if approved in particular cases, by the judges.
8. It may be helpful to explain the thinking which underlies these drafts. I can summarise it as follows, starting with the standard directions order (Annex B):

i) The applicant is the non-birth mother/father. The respondent is the birth mother.

ii) The child is not required to be joined as a respondent (see the Table in FPR 8.20(1)), though under FPR 16.2 the child may be joined if the court considers it is in the best interests of the child to be made a party to the proceedings. In practice this no longer happens unless the application is for a declaration of non-parentage (see Re Human Fertilisation and Embryology Act 2008 (Case L) [2016] EWHC 2266 (Fam)) or the case raises some novel point the proper resolution of which requires the participation of the child or the assistance of a guardian.

iii) Before the application is issued, the applicant has usually already obtained copies of the relevant files from the clinic (standard directions order, para 8(iv)) and is thus able to formulate his/her case with precision.

iv) Given (a) the nature of the issues, (b) the fact that the court is being invited to make a declaration as to status, and (c) the fact that, almost invariably, these cases proceed with both parents in agreement (so that, typically, the respondent supports the making of the order sought by the applicant), it is appropriate, and settled practice, to require notification of the proceedings to (i) the clinic, (ii) the Human Fertilisation and Embryology Authority, (iii) the Attorney General and (iv) the Secretary of State for Health (standard directions order, para 5). This is to enable them, if they think it appropriate for whatever reason, to seek to intervene (standard directions order, para 7). In current practice, the latter three almost never do so, and the clinics not very often, but this process is, in my judgment, an important safeguard whose continuing utility is not be assessed by the frequency (or, rather, infrequency) of intervention but by the salutary effect on litigants of knowing that, to put it colloquially, public authorities may indeed intervene if they have reason to suspect that something 'fishy' is, or may be, going on.

v) Initial directions, in the form of the standard directions order are typically made on paper without the need for any directions hearing (standard directions order, para 4) – so the matter can proceed direct to a final hearing (standard directions order, paras 8-11).

9. One of the points raised by Miss Isaacs and Mr Muzaffer is the suggestion that there may be cases where an oral final hearing can properly be dispensed with, the judge making the order on the papers. I would not rule out the possibility of proceeding in this way in an appropriate case. What such a case might be, and whether it would be appropriate to proceed in this way in a particular case, must, in the final analysis, be a matter for the judge. It is not something in relation to which it would be appropriate for me to offer any specific guidance.
10. All I can properly say is this:

i) I have difficulty in seeing how it could ever be appropriate to dispense with an oral final hearing if the claim for relief is dependent on the parties' evidence of what did or did not happen (for example, where parol evidence is relied on to prove the existence of a document which cannot be found).

ii) The kind of case in which it might be appropriate to proceed without an oral final hearing is where (a) the application turns entirely on written documents from the clinic's file, (b) the factual circumstances are the subject of a previous judgment which is precisely in point, (c) there is no dispute between the parties, (d) there has been no intervention by the Human Fertilisation and Embryology Authority, the Attorney General or the Secretary of State for Health, and (e) the applicant and respondent both wish to proceed without an oral hearing. To accommodate the possibility of such a process, paras 12-13 are now added to the standard directions order.

11. In relation to this I add three points.
12. First, and however straight-forward the case may be, either the applicant or the respondent must be entitled to an oral final hearing if that is what they want, just as they must, as I have previously pointed out, be entitled to address the court, or give evidence (even if not strictly necessary to prove their case), if that is what they want: see, for example, Re Human Fertilisation and Embryology Act 2008 (Case V) [2016] EWHC 2356 (Fam), para 6.
13. Secondly, if it is desired to persuade the court to dispense with an oral final hearing that must be clearly stated, with the reasons set out, in the evidence or submissions filed in accordance with the standard directions order, para 12.
14. Thirdly, the evidence or submissions must (i) identify the relevant documents on which it is said the case turns, (ii) specify precisely the problem(s) which arise on the documents and (iii) identify precisely, with specific references, the authorities relied on in support of the contention that, despite the identified problem(s), the applicant is entitled to the declaration sought. This can all be done, and wherever possible should be done, shortly and succinctly: compare what I said, and how I set out the relevant analysis, in Case AD and Case AE: see Re Human Fertilisation and Embryology Act 2008 (Cases AD, AE, AF, AG and AH) [2017] EWHC 1026 (Fam), paras 10-13.
15. The three other standard form orders are those made at the conclusion of the final hearing. They are largely self-explanatory. The first (Annex C) is the declaration. Because this is a document which may have continuing importance down the years and decades, and may have to be shown to third parties, it contains only the declaration. The second order (Annex D) is designed to control access to the transcript of the hearing. The third (Annex E) covers all the other matters in relation to which an order is needed, typically in relation to the costs of the proceedings.

Annex A: chronological list of judgments

11.9.2015 In re A and others (Legal Parenthood: Written Consents) [2015] EWHC 2602 (Fam), [2016] 1 WLR 1325

6.4.2016 Re HFEA 2008 (Case G) [2016] EWHC 729 (Fam)

12.4.2016 Re HFEA 2008 (Case I) [2016] EWHC 791 (Fam)

8.6.2016 Re HFEA 2008 (Case N) [2016] EWHC 1329 (Fam)

8.6.2016 Re HFEA 2008 (Case J) [2016] EWHC 1330 (Fam)

30.6.2016 Re HFEA 2008 (Case M) [2016] EWHC 1572 (Fam)

12.9.2016 Re HFEA 2008 (Case L) [2016] EWHC 2266 (Fam)

13.9.2016 Re HFEA 2008 (Case O) [2016] EWHC 2273 (Fam)

30.9.2016 Re HFEA 2008 (Case V) [2016] EWHC 2356 (Fam)

19.1.2017 Re HFEA 2008 (Cases P, Q, R, S, T, U, W and X) [2017] EWHC 49 (Fam)

19.1.2017 Re HFEA 2008 (Case K) [2017] EWHC 50 (Fam)

12.4.2017 Re HFEA 2008 (Cases Y, Z, AA, AB and AC) [2017] EWHC 784 (Fam)

5.5.2017 Re HFEA 2008 (Cases AD, AE, AF, AG and AH) [2017] EWHC 1026 (Fam)

Annex B: standard directions order

In the High Court of Justice

Family Division

In the matter of (i) the Family Law Act 1986; and (ii) the Human Fertilisation and Embryology Act 2008

Between:

[Non-birth mother/father]

Applicant

and

[Birth mother]

Respondent

THE SUBJECT CHILD

[details of name gender and dob]

DIRECTIONS

Before: [name of judge], sitting at [the Royal Courts of Justice], on [date] and determining this application on paper without a hearing.

1. THE PARTIES

The Applicant is [name of non-birth mother/father]

The Respondent is [name of birth mother]

Neither the names of the parties nor the names of the child (all set out above) are to be disclosed in public without the permission of the court.

2. REPRESENTATION

The parties did not appear before the court but were represented as follows:

[names and contact details of counsel and solicitors]

3. THE APPLICATIONS

The Applicant has applied by a notice in Form C63 for a declaration under section 55A of the Family Law Act 1986 that he/she has parental status in respect of the subject child.

4. THE HEARING

The order was made without the attendance of the parties or counsel and upon the court reading the papers in the case and the case summary provided by the Applicant's legal representatives.

THE COURT ORDERS AND DIRECTS THAT:

5. A copy of this order, together with the overview/summary of the case prepared on behalf of the Applicant is to be served on the following:

a. the [name of clinic], which was the clinic which provided the treatment that resulted in the birth of the subject child (together with a request for any information which that clinic may have that is relevant to the present application);

b. the Human Fertilisation and Embryology Authority;

c. the Attorney General; and

d. the Secretary of State for Health.

6. Any Position Statements/Skeleton Arguments that may in the future be filed with the court in respect of the proceedings in the present case shall at the same time be served forthwith on each of:

a. the clinic which provided the treatment that resulted in the birth of the subject child; and

b. the Human Fertilisation and Embryology Authority.

7. Permission is granted to the each of the entities referred to in paragraphs 5 and 6 above to apply to be joined as a party in this matter, and any such application must, in the first instance, be made in writing to [name] and served on the existing parties in the proceedings (namely, the Applicant and the Respondent). The application must be made within [number] days of the making of this order and in any event not later than [date].

8. Permission to [name of clinic], the clinic at which the Applicant and Respondent were treated, to file and serve the following documents not later than [date]:

i. a statement from the Person Responsible or the Medical Director setting out an account of the clinic's treatment of the Applicant which should in particular set out the procedure for taking consent to parenthood and any practice in respect of inspection of consent forms by clinic staff before treatment;

ii. the internal policy of the clinic at the time of the treatment in [date] as to the taking of legal consent to parenthood;

iii. all counselling notes (subject to the Applicant and Respondent providing their written consent);

iv. the Court noting that the full medical records and clinic file has been provided to the parties, any additional material relevant to the Applicant and Respondent which has not as yet been provided by the clinic; and

v. any other evidence which the clinic considers relevant.

9. Liberty to the Clinic to apply to vary or discharge the directions set out in paragraph 8 above on 7 days' notice in writing to the Applicant's solicitors [name].

10. The Applicant and Respondent may file with the court by 4pm on [date], any written evidence upon which they will seek to rely at the final hearing of this matter.

11. The substantive hearing of the application made is reserved to [name of judge] and shall be fixed by counsel's clerk in conjunction with the Clerk to [name of judge] on a convenient date on or after [date] with a time estimate of [number] hours.

12. The judge before whom the application is listed shall consider the evidence filed and any submissions made in writing by [date] and consider whether the orders sought can be made without the need for a hearing. If so, [name of judge] will notify the parties that the hearing has been vacated and the Applicant's solicitor will submit the standard final orders to the Court.

13. In the event that this matter is determined on the papers without the need for a hearing in accordance with paragraph 12 above, the [name of clinic] is to pay the reasonable costs of this application within 28 days of the making of the declaration of parentage order. Liberty to the clinic to apply to vary or discharge this order with 7 days' notice in writing to the Applicant's solicitor, [name].

Dated: [date]

Annex C: declaration order

[Heading as in standard directions order]

Before: [name of judge], sitting in private at [the Royal Courts of Justice, the Strand, London], on [date of hearing].

1. THE PARTIES

[as in standard directions order]

[The Applicant and Respondent were present in Court]

Neither the names of the parties nor the name of the child (all set out above) are to be disclosed in public without the permission of the court.

2. REPRESENTATION AT THIS HEARING

The parties appeared before the court as follows:

[names of counsel and solicitors]

3. RECITALS

Upon the Court having read the evidence filed in the proceedings and heard submissions from [name of the Applicant's counsel/solicitor] for the Applicant

THE COURT ORDERS THAT:

4. It is declared that [name of applicant] is the parent of [name of child] (d.o.b. [date]).

Dated: [date]

Annex D: order in relation to transcript

[Heading as in declaration order]

Before: [name of judge], sitting in private at [the Royal Courts of Justice, the Strand, London], on [date of hearing]

1. [as in declaration order]

2. [as in declaration order]

3. [as in declaration order]

THE COURT ORDERS THAT:

4. No transcript of the hearing on [date of hearing] shall be obtained without the permission of the Court. Any application for a transcript of the hearing is reserved to [name of the judge].

Dated: [date]

Annex E: order in relation to costs etc

[Heading as in declaration order]

Before: [name of judge], sitting in private at [the Royal Courts of Justice, the Strand, London], on [date of hearing]

1. [as in declaration order]

2. [as in declaration order]

3. RECITALS

Upon the Court having read the evidence filed in the proceedings and heard submissions from [name of the Applicant's counsel/solicitor] for the Applicant

And upon the court having made in a separate order a declaration pursuant to a.55A of the Family Law Act 1986 that the Applicant [name] is the parent of [name of child]

And upon agreement that the reasonable costs of the Applicant and Respondent relating to the application for a declaration of parentage dated [date of application] are to be paid by [name of clinic]

THE COURT ORDERS THAT:

4. [Name of clinic] is to pay the reasonable legal costs of the Applicant and Respondent in respect of the application for a declaration of parentage (to be assessed on the standard basis if not agreed).

5. The costs are to be paid in full not later than [date].

Dated: [date]

Note 1    Examination of the judgments listed in Annex A will show many examples of cases where I have been content to grant declarations without hearing oral evidence.     [Back]