AD & Ors, Re Human Fertilisation and Embryology Act 2008

Where fertility-treatment consent documents contain clerical or paperwork errors, the statutory requirements must be assessed in substance and in the light of the documents as a whole. A missing signature or an omitted tick is not necessarily fatal where the relevant consent was clearly given and the statutory form was otherwise satisfied. A consent may also extend beyond a particular clinic where its wording is not clinic-specific. A lost form may be proved by reliable unchallenged evidence. A general acknowledgement of guidance does not, without more, satisfy the statutory requirements.

Five applications concerned women who sought declarations under section 55A of the Family Law Act 1986 that they were the legal parents of children born following assisted reproduction. The applications relied on sections 43 and 44 of the Human Fertilisation and Embryology Act 2008.

In each case the treatment had been undertaken jointly, both women intended that the applicant should be a legal parent, and both believed that the necessary consents had been completed. The cases concerned different defects, including an unsigned declaration, an unticked consent box, a missing page, an incorrect date, a lost form and reliance on a general information acknowledgement. The central issue was whether those defects prevented the statutory parental conditions from being met.

1. Declarations granted. In each of Cases AD, AE, AF, AG and AH the applicant was entitled to the declaration sought. The evidence showed informed consent, a shared intention of legal parenthood and good-faith conduct by both women.
2. In Case AD, the omission of the signature in section 5 of Form PP was immaterial. The consent box had been ticked and the applicant’s signature at the foot of the second page was sufficient to satisfy the statutory requirement. The same conclusion applied despite the error concerning section 5 or the loss of a page in Case AF.
3. In Case AE, the omission of the tick in the consent box on Form WP was not fatal. The completed form and surrounding documents established the necessary consent. The consent was expressed to cover treatment at the clinic or any subsequent licensed clinic and was therefore not clinic-specific. The earlier forms also covered the later child in Case AF.
4. In Case AG, inserting the mother’s date of birth instead of the date of signature was an obvious immaterial error. In Case AH, the missing Form WP was sufficiently proved by the joint, unchallenged evidence that it had been signed, supported by the clinic’s standard practice.
5. The alternative argument based solely on a Form IC failed in Cases AG and AH. An acknowledgement that the parties had been directed to HFEA guidance fell substantially short of the statutory requirements. By contrast, materially equivalent Form IC documents supported the declarations in the other cases, as explained in In re A and others (Legal Parenthood: Written Consents) [2015] EWHC 2602 (Fam).

The clinic agreed to pay each applicant’s reasonable costs.