Case No. FD21F00068

47.This case is a timely reminder of the critical importance for Clinics that undertake fertility treatment to ensure their records relating to those who seek treatment are accurately recorded, particularly the status of any relationship of those seeking treatment together, and that there are adequate and robust systems in place to check the position effectively at important stages of the process. 48.In this case there appears to have been human error at critical stages of the process with incorrect recordings as to the parents’ marital status, which meant the correct forms to secure legal parentage, as was clearly intended, were not completed. 49.The critical stages were the incorrect entry in the records stating that the parents were married when the mother made the initial contact. This resulted in the erroneous issue of the PBR form, only required if they were married, which was checked and signed off. The pre-treatment checklist marked that the WP/PP forms were not required. The Clinic in Dr Gadd’s statement fully accept that the parents intended the father to be a legal parent. This was discussed at the counselling session on 3 December 2020, as recorded in the notes.50.To their credit the Clinic have accepted complete responsibility for this situation and have fully supported the steps taken by the parents to seek orders securing what had been intended, namely that the father is a legal parent of X. They have attended this hearing and sought to assist where they could. The parents, to their credit, accept this situation has been caused by human error.51.What is clear from the evidence is the distress and anxiety caused to the parents when they were informed by the Clinic of the error. As they describe in their statements, it came as an enormous shock to them both to learn of this just prior to X’s birth. It caused uncertainty when his birth was registered and impacted on them in a fundamental way. The powerful evidence in their statements describe how the uncertainty regarding the parental status of the father affected them, in particular the father’s health. The extent of the anxiety they outline underscores the importance of identity and the consequences if that is thrown into doubt, not only on the parents but also the wider family.52.Having considered the routes set out with admirable clarity by Ms Fottrell and Ms Elsworth, I am satisfied the court can follow the first route outlined by them.53.I agree the IC Form signed by both parents on 5 and 6 January 2021 contains the joint agreement of the parties that they are ‘co-parents’. The cases make clear that the notice under s 37 does not have to be in any particular form providing it is in writing, and conveys the necessary consent as required in s 37. In my judgment the IC form in this case does that.54.The content of the IC form is entirely consistent with all the other information available to the court, including the PBR form and the record of the counselling. As Ms Fottrell submits, it makes no sense to sign a form agreeing to be treated as the legal parent of a child born after your death if you did not intend to be the child’s parent during your life. The PBR form specifically sets out who should complete the form which includes stating ‘you wish to be registered as the legal parents to any child born if you die before embryos (that were created before your death) are transferred to your partner’. The counselling notes are clear in that they tick all the boxes that relate to the implications post the HFEA 2008, recording that those issues were discussed. This supports the IC Form signed subsequently, where the parents tick the part that records them progressing to treatment as a couple or as co-parents.55.Having accepted those submissions, it is not necessary to consider the other grounds advocated on behalf of the father.