(Family Division, Sir James Munby P, 11 September 2015)
Private law children – Declarations of parentage, s 55A, Family Law Act 1986 – Errors in consent forms held by fertility clinics – Whether it was possible to find consent had been lawfully granted prior to treatment
The President granted declarations of parentage pursuant to s 55A of the Family Law Act 1986.
In seven cases where the applicants had received treatment at HFEA clinics which resulted in successful births, there were defects in the consents to treatment provided prior to treatment being carried out. The case of AB v CD and the Z Fertility Clinic  EWHC 1418 (Fam),  2 FLR 1357 prompted the HFEA to direct an audit of licenced fertility clinics in regard to their record keeping and a number of deficiencies were identified which had serious repercussions on the legal parentage of some of the children that had been conceived. 46% of the clinics had anomalies in their record keeping such as absent WP or PP consent forms, forms that had been incorrectly completed, or an absence of evidence of counselling prior to treatment.
The court was concerned with eight cases in particular where valid consent was in issue. One case was adjourned and the remaining seven concerned parents in heterosexual or same-sex relationships who had received treatment at various clinics. They now applied for declarations of parentage pursuant to s 55A of the Family Law Act 1986.
It fell to be determined whether it was permissable to prove by parol evidence that a consent form which could not be found was executed in a manner complying with Part 2 of the 2008 Act and if that finding was made the fact that the form could not be found prevented it from being a valid consent as involving a breach of the clinic's record keeping obligations. It also fell to be determined whether errors in a completed consent form could be corrected either as a matter of construction of rectification. In addition, the court was asked to decide whether a properly completed IC form could amount to consent as opposed to a WP or PP form.
In light of the decision in X v Y (St Bartholomew's Hospital Centre for Reproductive Medicine Intervening)  EWFC 13 the only question in cases involving the first issue for consideration was a question of fact: Allowing for the fat that a form could no longer be found, was it established on the evidence that there was a Form WP or Form PP, as the case may be, which was properly completed and signed before the treatment began?
As a general principle, there was no reason why a consent form could not be rectified. There was nothing in the statute ruling out rectification and in a number of other areas of law rectification of documents which were required to be in a particular form was permissable such as trust documents under the Law of Property Act 1925. Furthermore, the equitable doctrine of rectification permitted the court to correct a mistake if the error was obvious and it was plain what it meant.
The President found that Form IC as a matter of content and construction, was Apt to operate both as a Form WP and a Form PP and complied with the requirements of both sections 37(1)(a) and 44(1)(a) and sections 37(1)(b) and 44(1)(b). Failure to use a Form PP and a Form WP did not invalidate a consent which would otherwise comply with sections 37 and 44. That approach accorded with the general thrust, if not with the specific detail, of Theis J's analysis in X v Y.
On the facts of each of the seven cases being considered it was appropriate to grant the declarations sought. In each case the declarations did no violence to the HFEA Acts and involved no reading down of any of the statutory provisions. Neutral Citation Number:  EWHC 2602 (Fam) Case numbers omitted
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 11 September 2015
SIR JAMES MUNBY PRESIDENT OF THE FAMILY DIVISION
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In the matter of the Human Fertilisation and Embryology Act 2008
(Cases A, B, C, D, E, F, G and H)
Miss Deirdre Fottrell QC and Miss Lucy Sprinz (instructed by Goodman Ray) for the applicants in Cases A, B, C, D, E and G
Mr James Turner QC and Miss Helen Williams (instructed by Osbornes Solicitors LLP) for the applicant in Case F and (instructed by Hughmans) for the applicants in Case H
Miss Janet Bazley QC and Miss Sharon Segal (instructed by Russell-Cooke LLP) for the children’s guardian
Miss Samantha Broadfoot (instructed by the Government Legal Department) for the Secretary of State for Health
Miss Dorothea Gartland (instructed by Bevan Brittan) for Barts Health NHS Trust in Cases A, F and H
Mr Martin Kingerley (instructed by Mills & Reeve LLP) for Bourn Hall Clinic in Case B
Mr Andrew Powell (instructed by Myerson) for Manchester Fertility Services Limited in Cases C, D and E
Miss Sarah Tyler (instructed by Hempsons) for IVF Hammersmith Limited in Case G
Hearing dates: 13-17, 20-21 July 2015
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I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.