Case V (Human Fertilisation And Embryology Act 2008)

Where intended legal parenthood depends on statutory consent forms, the court may infer that a required form was signed from the contemporaneous clinical records and surrounding evidence, even though the original document cannot be found. An acknowledgement signed by a female partner may provide a separate basis for legal parenthood where it records that the partner will become the legal parent of any resulting child. In applications under Family Law Act 1986, section 55A, the court should determine parentage by applying the statutory requirements to the evidence as a whole.

X and Y were partners who jointly undertook IVF treatment at Homerton Fertility Centre. Y gave birth to Z. X applied for a declaration under section 55A of the Family Law Act 1986 that she was Z’s legal parent under sections 43 and 44 of the Human Fertilisation and Embryology Act 2008.

X’s Form PP was available, but Y’s Form WP could not be found. The clinic records indicated that the relevant consents had been discussed and completed. Both partners had intended X to be a legal parent. The issue was whether the evidence established the required consent and whether a separate acknowledgement form supported X’s claim.

1. Declaration granted. The court declared that X was the legal parent of Z.
2. The evidence established that X and Y had jointly undertaken the treatment, intending from the outset that X would be a legal parent. Although Y’s Form WP was missing, the contemporaneous records showed that the consent forms had been reviewed, discussed and completed. The pre-treatment checklist recorded consent to the partner being the legal parent, and the nurse’s notes recorded that the forms had been completed and signed. The court therefore inferred that Y had signed the Form WP in proper form and that it had subsequently been lost or mislaid.
3. The circumstances were materially indistinguishable from those in Case A and Case F. Applying the principles identified in In re A [2015] EWHC 2602 (Fam), the statutory consent requirements were satisfied.
4. There was also an independent basis for relief. X had signed a Form IC acknowledging that she and Y were being treated together and that X would become the legal parent of any resulting child. Applying the principle identified in In re A, that acknowledgement entitled X, in principle, to the declaration.
5. The court criticised delay in disclosure of the clinic records and difficulties in arranging payment of the applicants’ costs. Clinics and their advisers should deal with these cases promptly, disclose relevant files immediately and avoid adding procedural delay to the distress caused by uncertainty about parentage. The clinic was directed to pay the agreed outstanding costs within 21 days.

Not stated in the judgment.