N, Re

Where fertility treatment was undertaken jointly and both partners intended that the male partner should be a legal parent, the court may find that the woman gave the relevant consent despite an apparent defect in the prescribed consent documentation. The court applies the established statutory and interpretative principles to the evidence as a whole. A subsequent Form PP may resolve any issue arising from wording in an earlier Form IC. Fertility clinics must respond to affected parents with openness, prompt disclosure of relevant records and appropriate support. Unjustified delay or obstruction may have serious consequences, including an order for payment of the parents’ reasonable costs.

X sought a declaration under section 55A of the Family Law Act 1986 that he was the legal father of the child born to Y following IVF treatment. X and Y had jointly undertaken the treatment and both intended that X should be a legal parent. X signed a Form PP; Y did not sign a Form WP; and both signed a Form IC containing wording concerning X’s future action to become the legal father.

The clinic, the HFEA and other notified parties were not joined. The central issue was whether Y had consented to X becoming the child’s father under section 36 of the Human Fertilisation and Embryology Act 2008.

1. Declaration granted. The court declared that X was the father of the child.
2. The statutory framework and legal principles previously analysed in In re A [2015] EWHC 2602 (Fam), including the treatment of consent forms and the possible relevance of rectification and construction, were adopted and applied. The court also treated the approach in Re the Human Fertilisation and Embryology Act 2008 (Case G) [2016] EWHC 729 (Fam) and Re the Human Fertilisation and Embryology Act 2008 (Case I) [2016] EWHC 791 (Fam) as part of the established principles.
3. On the evidence, treatment was undertaken jointly and in full knowledge. X and Y intended from the outset that X should be a legal parent. Both believed that the necessary forms had been signed and that they had done what was required to secure their intended parenthood. There was no issue of uninformed consent or failure by the clinic to provide information or counselling.
4. The unusual wording in X’s Form IC created no difficulty because X subsequently signed Form PP. Applying the established principles, Y had given the relevant consent and X was entitled to the declaration under section 36 of the Human Fertilisation and Embryology Act 2008.
5. The court made strong guidance, in the nature of material obiter, about clinic conduct. Clinics should provide immediate, full and frank disclosure of relevant files when requested by parents, subject to legal professional privilege. They should support and assist parents, act openly and transparently, and avoid delay, prevarication or obstruction. The court approved the approach in F v M and the Herts and Essex Fertility Centre [2015] EWHC 3601 (Fam) and agreed with the criticism of the clinic’s conduct expressed there.
6. The clinic was ordered to pay X and Y’s reasonable costs in full, including the costs incurred in obtaining disclosure and pursuing the substantive claim.