D v D (Fertility Treatment: Paperwork Error)

An incomplete fertility-treatment consent form does not necessarily defeat legal parentage where the evidence establishes that the statutory consent was in fact given and the omission was an understandable paperwork error. The court may rectify the legal consequence of an obvious form-filling mistake without requiring adoption proceedings. Clinics discovering such errors should inform affected families as soon as reasonably possible, give appropriate assurances about costs, and disclose an early explanatory statement. The judgment also identifies the risks created by unnecessary tick-box requirements in consent forms.

The application concerned a married couple and the legal parentage of their child, conceived through fertility treatment involving donor gametes. The female partner had completed the relevant Form WP but had not ticked a small box recording consent to her partner being the legal parent. The clinic failed to identify the omission and later advised the couple to pursue adoption. The applicant therefore sought a declaration under section 55A of the Family Law Act 1986. The central issue was whether the statutory consent requirement had been satisfied despite the incomplete form.

1. Declaration granted. The court declared that the applicant was the child’s legal parent alongside the first respondent. The clinic was to pay the legal costs by consent, and access to the file was restricted.
2. The court treated the case as on all fours with In the Matter of the Human Fertilisation and Embryology Act 2008 Case J [2016] EWHC 1330 (Fam). The couple had always consented to both adults becoming the child’s parents and had conducted the treatment and family life on that basis. The missing tick was an understandable error. The court therefore found that the consent required by the statute had been given, although the form was incompletely completed.
3. The approach was consistent with A & Ors (Human Fertilisation and Embryology Act 2008) [2015] EWHC 2602 (Fam), in which obvious consent-form errors could be overcome where they were mere errors against clear consent of the kind required by the legislation.
4. The judge invited the HFEA to review Forms WP and PP. A signature and declaration may make an additional small tick box unnecessary, and such a box may create a foreseeable trap.
5. The judge further stated that clinics should notify affected families at the earliest reasonably possible stage, even where the news is painful, and should file an early explanatory statement from the responsible embryologist. The delay in notifying the couple and the late filing of the statement were criticised, although the treatment itself had otherwise been professionally provided.

First-instance decision. No appellate history is stated in the judgment.