K (Human Fertilisation And Embryology Act 2008)

Where assisted conception treatment was undertaken jointly by a woman and her male partner, and both intended him to be a legal parent, the statutory parenthood provisions may confer legal parentage despite the absence of the prescribed consent forms, where the relevant statutory conditions are otherwise satisfied.

A registrar’s refusal to record that parentage because administrative guidance required particular forms may constitute an error of law. Judicial review lies to quash a birth registration resulting from such an error. Permission to apply out of time may be granted where the state’s mistake has serious and lasting consequences for the family and justice requires an effective remedy.

X applied for a declaration under Family Law Act 1986, section 55A, that he was the legal parent of twins born to Y following treatment at a licensed fertility clinic. X and Y had jointly undertaken the treatment and intended X to be a legal parent, but the prescribed Form WP and Form PP were absent. Both had signed Form ICs.

A registrar refused to record X as the children’s father because the Registrar General’s Handbook required the prescribed written consents. X subsequently brought judicial review proceedings, seeking permission out of time, quashing of the registration, and fresh registration recording him as father. The local authority and Registrar General consented to the relief.

1. Parentage. On the evidence, treatment had been undertaken jointly, both parties intended X to be a legal parent, and both believed that they had completed everything legally required. Applying In re A [2015] EWHC 2602 (Fam), the absence of Forms WP and PP did not prevent X being entitled in principle to a declaration under sections 36 and 37 of the Human Fertilisation and Embryology Act 2008.
2. Registration error. The Handbook’s requirement for Forms WP and PP was itself legally erroneous. The registrar’s compliance with the prevailing administrative guidance did not cure the error. Judicial review lay to quash a birth registration where the registrar had made an error of law.
3. Alternative statutory correction. If correction were pursued under section 14A of the Births and Deaths Registration Act 1953, the re-issued certificate would disclose that it was issued pursuant to that provision and might reveal assisted conception. The consequences for the family’s privacy and for the parents’ ability to decide how to address the children’s origins were materially relevant.
4. Relief. Justice required permission to apply for judicial review out of time. The court therefore granted the declaration in the Family Division, quashed the registrations in the Administrative Court, and ordered arrangements for fresh registration recording X as father. Costs in the Family Division were payable by the clinic; judicial review costs were reserved for separate determination.