A v R & Anor (Declaration of Parentage)

A declaration of parentage may be granted where fertility-treatment paperwork contains a clinic error which prevents the intended parentage from taking legal effect. The court may recognise the parentage that the parents and clinic intended, where the evidence establishes that the applicant was intended to be the child’s legal parent. The remedy is available under section 55A of the Family Law Act 1986.

The applicant sought a declaration of parentage concerning a five-year-old child. The child was born to the first respondent following fertility treatment at a hospital operated by the second respondent. The parents had signed consent forms intended to establish the applicant as the child’s other legal parent, but both had signed the form intended for the non-birth parent and no birth-mother form could be found. The issue was whether the court should grant the declaration notwithstanding the clinic’s paperwork error.

1. The application was granted. The court made the declaration of parentage sought under section 55A of the Family Law Act 1986.

2. The evidence showed that the parents had undergone fertility treatment with the intention that the applicant should be recognised as the child’s other parent. The relevant forms had been signed as part of that process. The failure to achieve the intended legal consequence resulted from a paperwork error for which the clinic was responsible.

3. Mr Justice Peter Jackson found that the applicant and the first respondent were, in substance and intention, the child’s parents. The declaration was therefore appropriate so that their legal status reflected the parentage that had always been intended.

4. The case formed part of a series of applications arising from a nationwide audit which identified errors in fertility-clinic records. The court noted the distress caused to the family, including the delay before the problem was communicated and the child’s special circumstances.

5. The second respondent repeated its apology and agreed to reimburse any reasonable costs incurred in bringing the application. The proceedings were concluded with the declaration granted.