C (Declaration of Parentage Written Consent), Re

For the purposes of ss 43 and 44 of the Human Fertilisation and Embryology Act 2008, the decisive requirement is written consent, signed before the relevant treatment. The legislation does not require a prescribed form or that consent post-date commencement of the Act. An internal consent form may satisfy the statutory notice requirements if its wording shows an intention to establish legal parenthood. Obvious erroneous terminology may be corrected by construction or rectification. The court may consider the statutory purpose and Convention rights when construing the provisions, particularly where treating male and female partners differently would produce a potentially discriminatory result.

M applied for a declaration that W was the legal parent of C under s 55A of the Family Law Act 1986. C was conceived through donor-assisted IVF treatment at a licensed clinic. M and W, who were then same-sex partners, had signed internal consent forms before the Human Fertilisation and Embryology Act 2008 came into force. The forms stated that W would become the legal father of any resulting child, but the prescribed WP and PP forms could not be found.

The clinic accepted that administrative error had caused the uncertainty. The central issue was whether the pre-commencement written consents satisfied the agreed female parenthood conditions in ss 43 and 44 of the 2008 Act.

1. The application for a declaration of parentage was granted. W was declared to be C’s legal parent, and an order was made under s 4ZA(1)(a) of the Children Act 1989 that W should have parental responsibility.

2. The requirements in ss 43 and 44 of the Human Fertilisation and Embryology Act 2008 were satisfied. M and W had given written, signed consents before the relevant treatment. The Act required no more. It imposed no requirement that consent should be given after the Act came into force and prescribed no particular form.

3. The reference in the internal consent forms to W becoming the legal father was an obvious error. In context, including the deletion of references to a husband and male partner, the forms should be read as referring to W becoming the legal parent. This was consistent with the approach in Re A and Others.

4. The court treated written consent as ultimately determinative, while considering the surrounding circumstances, including the parties’ joint treatment, their shared intention, their understanding that they had completed the necessary paperwork, and the clinic’s administrative failure. The purpose of the 2008 reforms was to enable a wider range of persons in stable relationships to be recognised as parents following assisted reproduction. A construction that treated equivalent prior consent differently according to whether the partner was male or female would be potentially discriminatory under Articles 8 and 14 of the European Convention on Human Rights.

5. The court also emphasised that questions of legal parentage should be brought before the court as soon as reasonably practicable, since a declaration provides lifelong security for the child and parent.