F v M & Ors

A declaration of parentage cannot be granted by consent or default. The court must examine the facts in light of the applicable law and be satisfied that the statutory conditions for declaratory relief are established.

Lost consent forms do not necessarily prevent a declaration of parentage following assisted reproduction. Parol evidence, clinic records and internal consent documentation may establish compliance with the Human Fertilisation and Embryology Act 2008.

F sought a declaration under section 55A of the Family Law Act 1986 that he was the father of C, born in 2013 following fertility treatment at the Herts and Essex Fertility Centre. M initially sought the opposite declaration but conceded shortly before the hearing that F should be declared the father.

The court nevertheless had to determine the issue independently. The central questions were whether the agreed fatherhood conditions under sections 36 and 37 of the Human Fertilisation and Embryology Act 2008 had been met, and whether that could be established when the relevant consent forms had been lost.

1. Declaration not granted by consent. M’s concession did not determine the issue. Under section 55A of the Family Law Act 1986, the court had to examine the facts and applicable law before granting declaratory relief. The principle was supported by Wallersteiner v Moir [1974] 3 All ER 217; [1974] 1 WLR 991.
2. Statutory framework. Section 36 of the Human Fertilisation and Embryology Act 2008 treats the relevant man as the father where the statutory conditions are met. Section 37 requires written and signed consents by the man and woman, subject to its specified qualifications.
3. Missing forms. Following the guidance in Re Human Embryology and Fertilisation Act 2008 (Cases A, B, C, D, E, F, G and H) [2015] EWHC 2602 (Fam), the court could rely on parol evidence to establish that missing forms had been completed and signed. Documentary mistakes could be corrected by rectification or, where obvious on the face of the document, by construction.
4. The clinic’s checklist, case notes and internal consent form established that M and F had signed the relevant WP and PP forms before treatment, received appropriate counselling and consented to F becoming the legal parent. The forms were later lost, but the clinic had acted within the terms of its licence. F was therefore C’s father.
5. The court strongly criticised the clinic’s administrative failures, disclosure conduct and failure to support or inform the parents. The clinic accepted the criticisms and undertook to pay the parties’ costs relating to the declaration proceedings.

First-instance judgment of the High Court (Family Division). No appeal is stated in the judgment.