J, Re

Where a consent form is intended to record consent to legal parenthood, an obvious clerical error in completing the form may be corrected as a matter of construction where the intended meaning is plain. Rectification is unnecessary in such a case. The court may determine that the required consent was given by considering the form’s purpose, wording and surrounding circumstances. A substitute consent form signed after treatment cannot retrospectively cure an earlier defect. Clinics must check legal consent forms with the care and rigour required for important legal documents.

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 intended X to be the child’s legal parent.

X had signed Form PP. Y had signed Form WP, but had omitted to place a tick in section 3 opposite the statement consenting to her partner being the legal parent. The issue was whether Y had nevertheless given the consent required by 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. Y’s omission of the tick was an obvious mistake. Form WP was headed as a consent to the partner being the legal parent, and the purpose of completing and signing it was to give that consent. It was plain that Y intended, and believed, that she was giving the relevant consent.
3. Following the approach in Re the Human Fertilisation and Embryology Act 2008 (Case I) [2016] EWHC 791 (Fam), the defect could be corrected as a matter of construction without resort to equitable rectification. The court adopted and applied the statutory and legal analysis previously set out in In re A (Legal Parenthood: Written Consents) [2015] EWHC 2602 (Fam), [2016] 1 WLR 1325, as supplemented but not altered in Re the Human Fertilisation and Embryology Act 2008 (Case G) [2016] EWHC 729 (Fam).
4. The clinic’s later attempt to correct an allegedly defective earlier Form WP could not retrospectively cure the defect because the substitute form was signed after treatment. The error was also immaterial to the earlier form’s validity because the precise date was not material, provided the form was signed before treatment.
5. The clinic’s repeated failures to understand and meticulously check the legal consent forms revealed serious managerial and administrative shortcomings, apparently reflecting wider systemic failings in the sector.