Case No. FD21F00068

1.This matter concerns an application for a Declaration of Parentage pursuant to s 55A Family Law Act 1986 relating to X, now aged 3 months. The applicant is Y, and the respondent Z, X’s mother. Y’s application is supported by Z. Y and Z will respectively be referred to as the ‘father’ and ‘mother’.2.X was born following IVF treatment undertaken at the CARE Fertility Clinic (hereafter referred to as ‘the Clinic’).3.The orders sought are supported by the Clinic who attended this hearing and sought to assist in any way they could. They filed a detailed statement by Dr Gadd, the person responsible to the Human Fertilisation and Embryology Authority (HFEA). The HFEA, Attorney General and the Secretary of State for Health were each given notice of this application and stated they did not wish to intervene.4.The circumstances of this application are similar to those considered by the former President, Sir James Munby, in A and others v HFEA [2015] EWHC 2606 (Fam) and the cases that followed. They all involved situations where the status of the legal parent was in doubt due to administrative errors made by clinic staff during fertility treatment. In each case, the court took a purposive and constructive interpretation of the Human Fertilisation and Embryology Act 2008 (HFEA 2008) to ensure the children and parents involved in these cases obtained orders that gave them the legal status that had been intended.5.The situation in this case is not one that has arisen before. For reasons which will be set out below, neither the father or mother completed the PP or WP forms, which are the prescribed forms that secure the legal parent status relating to children born following fertility treatment. There is an internal consent (IC) form that has been signed by both parents, but unlike the IC forms in the other cases this form does not contain a parenthood notice. The issue that I have to consider is whether the written documents that were signed meet the requirements for the parenthood conditions under the HFEA 2008.6.The court has had the enormous benefit of a detailed skeleton argument on behalf of the father prepared by Ms Fottrell QC and Ms Elsworth, both specialists in this area, supported by their instructing solicitor, Ms Dally, who is equally expert in this field. Having heard oral submissions on 27 January 2022 the court announced its decision to make the declaration sought. This judgment sets out the reasons for that order.7.Bearing in mind the intolerable stress and anxieties these cases cause consideration may need be given to restoring the declaration that had previously been in IC Forms. I take on board the points made by Mr Burrows, on behalf of the Clinic, including that the intention behind removing the declaration from the IC Form was to encourage compliance with signing the PP and WP Forms. However, it may still be sensible to consider the declaration being restored to these forms as a safety net, to deal with situations such as arose in this case caused by human error, which remains a risk however robust the system may be. Mr Burrows outlined the constructive and positive steps the Clinic has taken since this incident, including a flagging system when a change is noted on the system, which triggers a full check and the revised guidance the Clinic now operates under. In this case, if the revised system was in place, the change in marital status would have highlighted the forms WP and PP needed to be completed. In addition, at paragraph 20 below the applicant’s skeleton argument outlines how some of the wording in the PBR form could be improved to make the position clearer.