AI and AJ, Re Human Fertilisation And Embryology Act 2008

In applications concerning legal parenthood following assisted reproduction, an obvious clerical error in a consent form may be corrected as a matter of construction where the evidence shows that the required consent was intended and given. Rectification is unnecessary where the form, read in context, sufficiently establishes that intention. An incorrect date, including a party’s date of birth instead of the signing date, may be immaterial where the form was signed before treatment. Where the mother was married, the statutory presumption that her husband is the father was rebutted by evidence that he did not consent to the embryo being placed.

Two applications were heard together. In each, a man sought a declaration under Family Law Act 1986, section 55, that he was the legal parent under sections 36 and 37 of the Human Fertilisation and Embryology Act 2008.

In Case AJ, the mother had signed Form WP but had failed to tick the consent box. In Case AI, she had entered her date of birth rather than the date of signing in the declaration. She was married to another man, who had neither known of nor consented to the treatment. The central issues were whether the errors invalidated the consent documents and, in Case AI, whether the statutory presumption in favour of the husband had been rebutted.

1. Declarations granted. In both cases the court declared that the applicant was the legal parent. The clinics agreed to pay the applicant’s reasonable costs.
2. In Case AJ, the omission of the tick in section 3.1 of Form WP was an obvious clerical mistake. The form was headed as a consent to the partner being the legal parent, and the surrounding evidence established that the mother intended and believed that she was giving that consent. Following the analysis in Re the Human Fertilisation and Embryology Act 2008 (Case J) [2016] EWHC 1330 (Fam), the error could be corrected by construction without rectification.
3. In Case AI, the incorrect date in the Form WP declaration was immaterial. The evidence established that the form was signed before treatment, and the correct date was apparent. The court applied the reasoning in In re A and others (Legal Parenthood: Written Consents) [2015] EWHC 2602 (Fam), [2016] 1 WLR 1325, and confirmed that the same approach applied to Form WP as to Form PP, following Re the Human Fertilisation and Embryology Act 2008 (Cases AD, AE, AF, AG and AH) [2017] EWHC 1026 (Fam).
4. Because the mother was married, section 35(1) of the 2008 Act treated the husband as the father unless it was shown that he had not consented to the embryo being placed. The evidence showed that the husband was unaware of the treatment and had not consented. The presumption was therefore rebutted. The court applied the equivalent reasoning concerning civil partnership in Re the Human Fertilisation and Embryology Act 2008 (Case G) [2016] EWHC 729 (Fam).

First-instance applications. The judgment describes a continuing line of earlier applications concerning written consents, including In re A and others (Legal Parenthood: Written Consents) [2015] EWHC 2602 (Fam), but no appeal from the present applications.