P & Ors (Human Fertilisation And Embryology Act 2008)

In determining legal parenthood under the Human Fertilisation and Embryology Act 2008, defects in prescribed consent forms do not necessarily invalidate consent. A missing or incorrect date, an unticked consent box, or an unsigned declaration may be immaterial where the statutory consent is otherwise established. Rectification is available where a document contains a mistake, the parties’ intentions are clear, and the correction required is clear. A broadly expressed consent to any child resulting from treatment continues to operate for later treatment unless withdrawn. A qualifying Form IC may also support a declaration where the relevant form was signed before commencement of the 2008 Act but treatment occurred afterwards.

Eight applications concerned declarations of legal parenthood following assisted reproduction: Cases P, Q, R, S, T, U, W and X. The applicants and respondents had intended that the applicants would be legal parents, but the clinics’ records disclosed defects or omissions in Forms WP, PP and IC. The cases involved missing or inaccurate dates, an unticked consent box, an incomplete Form PP, wrongly assembled forms, mistaken signatures, a missing Form WP, and a Form IC signed before the commencement of the 2008 Act.

The applicants sought declarations under section 55 A of the Family Law Act 1986, relying on sections 36 and 37 or sections 43 and 44 of the Human Fertilisation and Embryology Act 2008. The central questions were whether the defects invalidated consent, whether defective forms could be rectified, whether an earlier Form PP continued to cover later treatment, and whether a pre-commencement Form IC could be relied upon.

1. Declarations granted. The court made the declarations sought in all eight cases. The evidence established that treatment was undertaken jointly, that both parties intended the applicant to be a legal parent, and that both acted in good faith.
2. In Cases P, Q and R, defects in Forms WP and PP did not invalidate consent. A missing date was immaterial where the form was proved to have been signed before treatment. An unticked consent box was not fatal. Where sections 1, 2 and 3 of Form PP had been completed and the second page had been signed, completion of section 5 on the third page was not a prerequisite to validity.
3. In Cases S and T, rectification was both available and appropriate. There was a mistake, the parties’ intentions when signing were clear, and the correction required to make the documents accord with those intentions was clear. The court therefore granted decrees of rectification as well as declarations.
4. In Case U, the Form PP completed before the first treatment cycle continued to operate for a later cycle. The reference in section 44(1)(a) of the Human Fertilisation and Embryology Act 2008 to consent relating to any child resulting from treatment imposed no temporal limitation, provided consent had not been withdrawn.
5. In Cases W and X, the Form IC was sufficient on the facts to support the declarations despite the absence of a Form WP or PP. In Case W, the Form IC had been signed before 6 April 2009, but the treatment occurred after the 2008 Act came into force; that timing did not prevent reliance on the form.
6. The court also had jurisdiction under section 55 A(2)(a) of the Family Law Act 1986, since the parties had not acquired a domicile of choice in Scotland and had not lost their domicile of origin in England and Wales. The clinics agreed to pay the applicants’ reasonable costs.