Case No. FD21F00068

40.In their written and oral submissions, Ms Fottrell and Ms Elsworth mapped out a number of ways they submit the court could make the Declaration of Parentage.41.First, they submit the court can read the IC Form as a whole in the context of the other documents. They rely on the terms of the IC Form that contains the joint agreement of the parties that they have both signed that they are co-parents, confirming that each consents to the father being the legal parent of any resulting child. This document can be read with the signed posthumous consent form (PBR) and the counselling notes.42.Second, to read the PBR form in such a way as having the notice which is otherwise found in the PP document. The primary purpose of the form was for the father to give notice that he agreed to be the legal parent of any child following his partner’s treatment. It must follow that he did not intend that he would only acquire legal parentage of a child born after his death. This form gives notice, it is completed before treatment and is signed. To go down this route would require the court to read it as applying to children born during the life of the husband as well as on his death.43.To go down this route they submit the court will need to look at the context of the other forms completed and the counselling undertaken by the father. The father understood that he was providing his consent to treatment and to acquiring legal parenthood. The Clinic understood the latter was not required. When read as a whole the forms and the counselling note make clear(1)The father understood he would be the legal parent and signed the PBR form intending that to be the case.(2)There was no PP form provided but all other forms were directed to ensuring consent to treatment and meeting the legal requirements to acquire parentage.(3)By the time of the counselling session that took place on 3 December 2020 the necessity of obtaining notice to legal parentage was known to the Clinic and the parties. That notice was specifically canvassed and obtained by the counsellor as recorded in the notes. All three individuals involved in that counselling session were left in no doubt that the parents consented to the father acquiring legal parentage.44. In these circumstances they submit it would be perverse to conclude the father had not met the fatherhood conditions.45.The third route they set out is that the IC Form can, in the circumstances of this case, be read to satisfy the requirements in s 37 HFEA 2008 in respect of both parties. They rely on the following matters:(1)It makes no sense for the father to agree to being treated as the child’s father on his death but not also during his life.(2)Both parents completed and co-signed a consent to treatment form selecting that they were progressing the treatment as co-parents.(3)The effect of the other forms and documents make clear the parents were embarking on this treatment together, intended to co-parent any resulting child which is supported by the welfare forms they completed and signed.(4)The forms were signed by both parents signalling their intention that the father would be a legal parent. They were often signed at the same time and they attended appointments jointly, when they were able to.(5)The counselling they both received prior to treatment was to discuss legal parentage and the implications for the father of this.46.As set out in the skeleton argument ‘Central to the court’s determination in this case is [X’s] fundamental right to have his identity secured and safeguarded. The use of s3 in this case in order to interpret s37 in light of the ECHR is entirely possible and proportionate, given the significant implications for [X’s] and the parents’ right to family life if a Declaration of Parentage is not made. There are no other orders which would be appropriate in the circumstances of this case in order to secure legal parentage for [the father].’