B v B (Fertility Treatment: Paperwork Error)

For the agreed fatherhood conditions to be satisfied, the court must determine whether each partner gave informed, written and signed consent, before treatment, to the non-birth partner being treated as the legal parent of any resulting child.

The absence of the prescribed forms does not necessarily defeat parentage where the documentary evidence, viewed in substance and in its total effect, proves the required consent. A single consent may apply to a continuous course of treatment, including treatment carried out in stages. Whether that is so is a question of fact. Administrative failures by a clinic do not themselves prevent treatment from being licensed treatment for the purposes of the statutory scheme.

The applicant sought a declaration of parentage under section 55A of the Family Law Act 1986. He and the first respondent had undergone donor-embryo fertility treatment before their marriage. A child was born in 2012 and both were named on the birth certificate.

The clinic had failed to retain, and apparently had not obtained, the prescribed HFEA consent forms. The couple had nevertheless signed extensive consent documentation over several years, expressing their intention that the applicant should be the child’s legal father. The issue was whether those documents satisfied the agreed fatherhood conditions in section 37 of the Human Fertilisation and Embryology Act 2008.

1. Declaration granted. The court declared that the applicant was the child’s legal parent alongside the first respondent.
2. Under sections 36 and 37 of the Human Fertilisation and Embryology Act 2008, the applicant had to give the clinic advance written and signed notice consenting to being treated as the father of any child resulting from the relevant licensed treatment. The first respondent had to give corresponding consent.
3. The statutory conditions did not require a fresh consent before every treatment cycle where the facts showed a continuous course of treatment to which the earlier consent was intended to apply. The existence and scope of consent were questions of fact.
4. The court approved and applied the approach summarised by the President in In the matter of the Human Fertilisation and Embryology Act 2008 (Cases A, B, C, D, E, F, G and H) [2015] EWHC 2602 (Fam): missing forms could be established by evidence, and mistakes in forms could in appropriate circumstances be corrected by rectification or construction. Failure to keep proper records did not itself mean that the treatment ceased to be licensed treatment.
5. Although the clinic’s forms did not use the wording of Forms WP and PP, the substance and total effect of the signed documents clearly showed that both partners intended the applicant to be treated as the child’s legal parent. The conclusion was consistent with the legislation’s twin pillars of informed consent and child welfare.
6. The court directed that the Trust pay the costs and that the file should not be accessed without the permission of the President of the Family Division.