M, Re

A consent form may satisfy the statutory requirements for legal parenthood if, on its proper construction, it operates as the required parental and partner consent forms. The use of a different form does not invalidate consent which otherwise complies with the statutory conditions. Such consent may remain effective where it was given before the Human Fertilisation and Embryology Act 2008 came into force, even if it was originally intended to comply with the earlier statutory regime. The subsequent separation of the intended parents is legally irrelevant to the validity of the consent.

The applicant, X, sought a declaration under section 55 A of the Family Law Act 1986 that he was the legal father of the child born to Y following treatment at a regulated fertility clinic. X and Y had jointly undertaken the treatment and had both intended X to be the child’s legal parent. They had signed Form IC, but no Form PP or Form WP could be located. Form IC was signed in March 2009, before the Human Fertilisation and Embryology Act 2008 came into force on 6 April 2009. X and Y had subsequently separated, but Y supported the application.

The issues were whether Form IC satisfied sections 36 and 37 of the 2008 Act, whether it remained effective despite the change in statutory regime, and whether the parents’ separation affected the result.

1. Declaration granted. The court declared that X was the father of the child.
2. Following the reasoning in In re A [2015] EWHC 2602 (Fam), the Form IC was, as a matter of content and construction, apt to operate both as Form PP and as Form WP. It therefore complied with the requirements of section 37(1)(a) and section 37(1)(b) of the Human Fertilisation and Embryology Act 2008.
3. A properly completed Form IC which satisfies section 37 is not prevented by the statutory scheme from operating as consent for the purposes of section 37. The failure to use Form WP or Form PP does not invalidate consent which otherwise complies with the statutory requirements.
4. Following In re A and Re the Human Fertilisation and Embryology Act 2008 (Case I) [2016] EWHC 791 (Fam), the fact that Form IC was signed before the 2008 Act came into force did not prevent it from operating as valid and effective consent under section 37. It was immaterial that the form had originally been completed to comply with the regime under the Human Fertilisation and Embryology Act 1990.
5. The subsequent separation of X and Y was legally irrelevant, following In re A and Re the Human Fertilisation and Embryology Act 2008 (Case G) [2016] EWHC 729 (Fam).
6. Both parties had given the relevant consent. X was therefore entitled to the declaration sought.