R (A Child), Re

Under section 28(3) of the Human Fertilisation and Embryology Act 1990, an unmarried, non-genetic partner is treated as a child's father only if the embryo resulting in the child's birth was placed in the woman while treatment services were being provided for them together. Paternity is determined at the time of placement, not by reference to an earlier course of treatment.

Consent and acknowledgement forms may be strong evidence that joint treatment continued, and may place an evidential burden on a person asserting otherwise. They do not create or preserve legal paternity where clear evidence shows that the couple had separated and joint treatment had ended.

A mother appealed against Hedley J's declaration that her former partner was the legal father of a child under section 28(3) of the Human Fertilisation and Embryology Act 1990. The couple had undertaken donor insemination and IVF together, but separated after an unsuccessful embryo placement. A further frozen embryo was placed in the mother after their relationship had ended, without the former partner's knowledge.

The judge held that the original course of treatment continued until a party or the clinic expressly withdrew from the understanding that treatment was being provided jointly. The central issue was whether treatment services were still being provided for the mother and former partner together when the embryo resulting in the child's birth was placed in her.

1. Appeal allowed. Lady Justice Hale delivered the judgment of the court. The declaration of paternity was set aside. Section 28(3) of the Human Fertilisation and Embryology Act 1990 conferred parenthood on people related neither by blood nor marriage. It therefore applied only where the circumstances clearly fell within the statutory language.

2. The relevant time was when the embryo which resulted in the child's birth was placed in the woman. The natural meaning of “in the course of” was “during” or “at a time when”. The question was consequently whether treatment services were then being provided for the woman and the man together. The expression was not limited to a treatment cycle or an earlier, continuing course of treatment.

3. The former partner had ceased to be the mother's partner before the successful embryo placement. Treatment services were therefore no longer being provided for them together. It made no difference that the embryos had been created and stored while they were a couple, or that the clinic had not been informed of their separation.

4. Consent was neither mentioned nor required by section 28(3). Earlier consent and acknowledgement forms were evidence of joint treatment, rather than a legal mechanism preserving that status. Such forms might be decisive where they were the only evidence and might create an evidential burden, but the evidence here clearly established that joint treatment had ended.

5. The construction adopted supported the regulatory purposes of the Act. A material change in the prospective parents' circumstances required reassessment and fresh counselling before further implantation. Although a legal father may benefit a child, the Act expressly contemplated circumstances in which a child would have none.

6. No family life protected by article 8.1 of the European Convention on Human Rights existed between the child and the former partner. There was neither a genetic link nor a personal relationship of a family nature.

7. A declaration under section 55A of the Family Law Act 1986 should generally be used where parentage raises a difficult issue of law or public policy, or re-registration is desirable without a substantive child order. The existing indirect-contact order remained effective because jurisdiction to make it did not depend on legal fatherhood. It could, however, be reconsidered by Hedley J.

1. Court of Appeal (Civil Division): By [2003] EWCA Civ 182, allowed the mother's appeal and set aside Hedley J's declaration of paternity. The existing indirect-contact order remained in force.

2. High Court (Family Division): On 27 March 2002, Hedley J granted the former partner a declaration of paternity under section 28(3) of the Human Fertilisation and Embryology Act 1990.

3. Earlier Court of Appeal proceedings: Permission to appeal against the earlier contact decision was refused in Re D (Parental Responsibility: IVF baby) [2001] 1 FLR 972, although the court expressed concern that legal fatherhood had been conceded without adequate factual investigation.