Case No. FD21F00068

(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 signature31.A number of cases have considered situations where the notice requirements under s37 have not been complied with (see X v Y (St Bartholomew’s Hospital Centre for Reproductive Medicine Intervening) [2015] EWFC 13) and In the matter of HFEA 2008 (Cases A,B,C,D,E,F,G and H Declaration of Parentage)[2015] EWHC 2602 (Fam)). In each case (save one which was adjourned) the court made Declarations of Parentage by finding either that a missing Form PP/WP had been completed/signed but later mislaid; rectifying or correcting mistakes within Forms PP/WP; different forms were capable of complying with the requirements of s37.32.Dealing with the requirements of any notice the former President stated In the matter of HFEA 2008 (ibid) the following:At paragraph 53 ‘…What ss 37(1)(b) and 44(1)(b) require is a 'notice in writing' by W, 'stating that she consents to [M or P as the case may be] being … treated [as 'the father' or 'a parent', as the case may be]'. That statutory language is tracked in the Form WP formula, 'I consent to my partner … being the legal parent'. These words do not appear anywhere in either the Barts Form IC or the MFS Form IC. But this, in my judgment, is not fatal. The Form IC is, as we have seen, a single composite document which has accordingly to be read and construed as a whole, the first section or sections providing for W's consent to the various stages of the IVF process and the final page providing for the signed consent of W's partner. If W is consenting to the treatment and, in the same document, W's partner is consenting to becoming the parent of the child resulting from that treatment, it seems to me to follow by necessary implication, even if not by express words, that W is consenting to her partner being the other parent….’At paragraph 57 ‘ Given the statutory framework, what it provides and, equally significant, what it does not provide, I do not see how a mere failure to comply with the HFEA's direction that Form WP and Form PP 'must' be used can, of itself, invalidate what would otherwise be a consent valid for the purposes of s 37 or s 44. These sections do not prescribe a specific form. What is required is a 'notice' and that is not defined, although I would agree with Miss Broadfoot that, given the context, what is required is a document of some formality. The argument must be that it is the combined operation of s 12(1)(d) of the 1990 Act, which in effect elevates this requirement into a condition of the licence, coupled with the words 'treatment provided … under the licence' in ss 37(1)(a) and 44(1)(a) (and the corresponding words 'being so treated' in ss 37(1)(b) and 44(1)(b)), that invalidates what would otherwise be a consent valid for the purposes of s 37 or s 44.’At paragraph 59 ‘There is one final consideration. What is meant by a direction saying that a clinic 'must' use the Form WP and the Form PP? Suppose that what are completed are copies of Form WP and Form PP which, in their operative parts, follow to the last dot and comma the text of the required forms, but which omit all the explanatory text which is included in those required forms. Can Parliament really have intended that to be fatal? Surely not. So, surely, what one is looking for is compliance with the substance, not slavish adherence to a form. Is parenthood to be denied by the triumph of form over substance? In my judgment, not.’And finally at paragraph 61 ‘In my judgment, failure to use a Form WP or a Form PP does not invalidate a consent which would otherwise comply with ss 37 and 44.’33.The content of IC forms were considered In the matter of the Human Fertilisation and Embryology Act 2008 Case I [2016] EWHC 791 and In the matter of the Human and Fertilisation and Embryology Act (Case M) [2016] EWHC 1572 (Fam). In the latter case, Sir James Munby set out at paragraph 14 ‘…I am satisfied that the Form IC signed by X and Y is, as a matter of content and construction, apt to operate both as a Form PP and as a Form WP, complying with the requirements of both section 37(1)(a) and section 37(1)(b). 15. The second issue: In In re A, paras 54, 61, I concluded that a properly completed Form IC which, as a matter of content and construction, is apt to operate both as a Form PP and as a Form WP and which complies with the requirements of sections 37(1)(a) and 37(1)(b), is not precluded by any of the provisions of the statutory scheme from operating as consent for the purposes of section 37 of the 2008 Act; and that failure to use a Form WP or a Form PP does not invalidate a consent which would otherwise comply with section 37.’34.In the matter of the Human Fertilisation and Embryology Act 2008 [2017] EWHC 784 Sir James Munby observed at paragraph 10 ‘….The document [Form IC] has to be read as a whole and, read as a whole, it is clear that both parties were signing a document which contemplated that X would be a parent. If X was not to be a parent….’ .35.Section 3 Human Rights Act 1998 provides as follows:(1)So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights. (2)This section— (a) applies to primary legislation and subordinate legislation whenever enacted; (b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and (c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility 36.Under s 3 HRA 1998 the Court is required ‘so far as it is possible to do so’ to read legislation to ‘give effect’ to it in the way that is compatible with the Convention. The leading authority is Ghaidan v Godin-Mendoza [2004] UKHL 30 which sets out the applicable principles confirming the s 3 exercise in these applications is driven by a purposive construction and the court should be willing to depart from a literalist interpretation of language. Lord Steyn observed at paragraph 41 that there should not be ‘an excessive concentration on the linguistic features of the particular statute’.37.The use of s 3 requires the court to consider what is the scope of the Convention right(s), is there an apparent incompatibility between the Convention and the legislative provision and can the court ‘read and give effect’ to the legislation in a Convention compliant way so far as it is possible to do so.38.As summarised in Ms Fottrell’s skeleton argument, in the present context article 8 includes(a) The right of a couple to conceive a child and to make use of medically assisted procreation for that purpose, as such a choice is a form of expression of private and family life (SH and Others v Austria (para.82); Knecht v Romania (para.54)). (b) Respect for private life requires that everyone should be able to establish details of their identity as individual human beings, which includes the legal parent-child relationship (Mennesson v France (para.96)). In Mennesson, the ECtHR stated that Article 8 protects children born via surrogacy outside of the member state in question, whose legal parents according to the foreign state could not register as such under domestic law. (c) The right to respect for family life of the family unit which includes legal protection and recognition of de facto ties. (d) The individual right to respect of the family and private life of each member of the unit. ( e) The child’s right to identity which includes proper and effective legal ties between him and his father [see Mikulic v Croatia [2006 CITE]39.There have been a number of cases that have deployed the purposive construction of legislation to assist in the interpretation of a statute. This has been particularly so in cases involving identity rights of children and the establishment of legal ties between parents and children. In A v P [2012] 2 FLR 145 this court read down the provisions of s 54 (4) and (5) HFEA 2008 to enable the court to make a parental order in circumstances where one of the intended parents had died after the application had been issued, but before an order could be made. That case emphasised the transformative effect of a parental order on the child. No other order could give recognition to the child’s status with the intended parents, it would protect and secure the child’s identity rights. In Re X (Parental Order: Death of Intended Parent Prior to Birth) [2020] 2 FLR 1326 the court was able to make a parental order where the intended father had died before the child was born. These decisions, along with that of the former President in Re X (Parental order: Time limit) [2015] 1 FLR 349, confirmed the positive obligation under article 8 to ensure that rights are accessibly promoted and for the protection of the rights to be ‘real and effective rather than theoretical and illusory’ (see Marckx v Belgium (1979 – 80) 2 EHRR 330 at paragraph 31). What these cases did was to permit the court to interpret legislation in a purposive way which maintained the objects and purpose of the legislation at the same time as giving effect to Convention rights.