Human Fertilisation And Embryology Act (Cases AD, AE, AF, AG and AH : No 2)

A declaration of status cannot be granted merely by consent or concession. The court must examine the relevant facts in the light of the applicable law, particularly where personal status is at issue. In suitable cases, an application may be determined without oral evidence or an oral final hearing. That course is most appropriate where the case turns entirely on clinic documents, the facts are covered by a previous judgment, there is no dispute or intervention, and both parties agree to proceed on paper. Either party remains entitled to an oral hearing. The judgment also endorses standard directions requiring notification of the clinic and relevant public authorities as an important safeguard.

The judgment followed five applications concerning declarations under the Human Fertilisation and Embryology Act 2008. The substantive cases had been resolved in an earlier judgment, Re Human Fertilisation and Embryology Act 2008 (Cases AD, AE, AF, AG and AH), [2017] EWHC 1026 (Fam). The applicants then invited the court to give practice guidance for making future applications more quickly and efficiently, especially where the cases were straightforward and undisputed.

The central issues were the circumstances in which declaratory relief could be granted by consent or concession, whether an oral final hearing could be dispensed with, and what procedural safeguards and standard orders should apply.

1. Declaratory relief. A claim proceeding by consent or concession does not prevent the court from granting a declaration, and a declaration may be granted without a full trial or oral evidence. However, a declaration cannot be granted by consent, concession or default without proper judicial examination of the relevant facts and applicable law. That requirement is especially important where the declaration concerns personal status. The court approved and applied the principle stated in In re A and others (Legal Parenthood: Written Consents) [2015] EWHC 2602 (Fam).
2. Determination on the papers. The judge did not provide an exhaustive test, but identified a class of cases in which an oral final hearing might be dispensed with. The application should turn entirely on written clinic documents; the factual circumstances should be precisely covered by an earlier judgment; there should be no dispute; there should have been no intervention by the Human Fertilisation and Embryology Authority, the Attorney General or the Secretary of State for Health; and both parties should wish to proceed without an oral hearing.
3. It could rarely be appropriate to dispense with an oral hearing where the claim depended on evidence about what had or had not happened, such as parol evidence establishing the existence of a missing document. Either party must be entitled to an oral final hearing if that is what they want. Any request to proceed on paper must be clearly stated, supported by reasons, and identify the relevant documents, the precise documentary problems and the authorities relied upon.
4. Procedural safeguards. The standard directions order should ordinarily require notification of the clinic, the Human Fertilisation and Embryology Authority, the Attorney General and the Secretary of State for Health. The possibility of intervention is an important safeguard even though intervention is uncommon. Initial directions may generally be made on paper, allowing the case to proceed directly to a final hearing where appropriate.
5. The court published revised standard forms of directions, declaration, transcript and costs orders for use in suitable cases, subject to approval by the judge in the individual case.

Not an appeal. The judgment provided practice guidance following the court’s earlier determination of five substantive applications.