P & Ors (Human Fertilisation And Embryology Act 2008) (No 2)

Intention to become a legal parent is insufficient where the statutory scheme requires written consent given before treatment. The decisive question is whether the prescribed written consent was given in the required form and at the required time. Informal declarations or private arrangements cannot safely resolve uncertainty about legal parenthood. Where statutory consent defects create uncertainty, an application for a declaration from the High Court provides a secure legal footing and protects the lifelong legal relationship between parent and child.

The judgment concerned six cases involving treatment at a fertility clinic. The court had previously determined the primary relief and adjourned a wider issue concerning the clinic’s response to defects and anomalies in consent forms. Following audits and inspections, the clinic sent affected couples letters inviting them to provide declarations recording their earlier intentions to become legal parents.

The court considered whether such declarations could appropriately resolve or mitigate uncertainty about legal parenthood, and addressed the importance of obtaining a court declaration where the statutory consent requirements may not have been satisfied.

1. Written consent was determinative. The court emphasised that intention to become a legal parent was necessary but not sufficient. Under sections 44(1)(a) and 44(2) of the Human Fertilisation and Embryology Act 2008, the decisive issue was whether the required notice in writing, signed by the relevant person, had been given before the treatment.
2. Clinic declarations could not safely cure the problem. The letters sent by the clinic wrongly focused on clarifying the parents’ intention. A later declaration recording intention could not provide legal certainty where the statutory written-consent requirements were absent or defective. The court described the view that such problems could appropriately be resolved without an order of the court as highly problematic and dangerous.
3. Court declarations served an important protective function. Although a declaration of status was declaratory rather than transformative, it placed the child’s legal relationship with the parent on a secure footing. It provided lifelong security and placed the relationship beyond future dispute by public bodies or private individuals. Potential future issues included family proceedings, nationality and succession.
4. The court expressed concern that the Human Fertilisation and Embryology Authority had not questioned more closely the advice apparently being given to clinics after the judgment in In re A and others (Legal Parenthood: Written Consents) [2015] EWHC 2602 (Fam).

First-instance judgment. The issue arose in six cases following the court’s earlier judgment in Re Human Fertilisation and Embryology Act 2008 (Cases P, Q, R, S, T, U, W and X) [2017] EWHC 49 (Fam).