R (A Child), Re

This is a mother's appeal from the order of Hedley J made on 27 March 2002 in the Family Division of the High Court, when he granted the respondent's application for a declaration of paternity pursuant to section 28(3) of the Human Fertilisation and Embryology Act 1990. That subsection provides that a man who is neither the genetic father of a child nor married to the mother is nevertheless to be treated in law as the father in certain circumstances. It reads:

"If no man is treated, by virtue of subsection (2) above, as the father of the child but - (a) the embryo or sperm and eggs were placed in the woman, or she was artificially inseminated, in the course of treatment services provided for her and a man together by a person to whom a licence applies, and (b) the creation of the embryo carried by her was not brought about with the sperm of that man, then, . . ., that man shall be treated as the father of the child."

The issue in this case is whether this rule applies where a man had participated as the mother's partner during much of the treatment provided but had separated from her by the time that the embryo which led to the child's birth was placed within her.

The appellant and respondent met in 1988 and began a serious relationship in 1989 although they did not always live together. In 1992, the respondent became infertile following treatment for testicular cancer. The mother was referred to a consultant andrologist with a view to donor insemination in November 1992. The couple were seen together in the assisted conception unit in May 1994. They received counselling together during 1995. They were screened and approved for donor insemination during 1996. On 27 November 1996, the mother signed a consent form for donor insemination. The respondent countersigned the same form acknowledging that they were being treated together and that he would become the legal father of any resulting child. Three unsuccessful attempts at donor insemination through intra-uterine insemination took place in 1997. Two more unsuccessful attempts took place in 1998, but the consultant was already contemplating in vitro fertilisation.

On 3 August 1998, the mother signed a consent form for IVF treatment involving egg removal and embryo replacement. The respondent countersigned the same form acknowledging that they were being treated together and that he would become the legal father of any resulting child. This form did not state how many attempts at replacing embryos might be made but the clinic history sheets of the same date record, under the heading 'counselling', that the number of NHS cycles available was two. On 5 August the mother signed the statutory consent to the use of her embryos for the treatment of herself or herself together with the respondent and their storage for up to five years. On 22 October 1998, more than 12 eggs were harvested from the mother and fertilised using donated sperm which was matched using the record of the physical characteristics of the mother and the respondent. On 24 October 1998 two embryos were placed in the mother. The remaining embryos were frozen for future use. Neither of those two embryos resulted in a successful pregnancy. The couple then separated. The mother says that this happened in late 1998, the respondent says that they separated for the last time in mid March 1999. In April 1999 the mother met her present partner. On 18 May 1999, further embryos were placed in the mother. The respondent did not attend and knew nothing about it, but the mother did not tell the clinic that they had separated. Indeed, she led them to believe that that they had not. However, the patient identity check form which she signed on the same day left the partner's name blank, whereas the same form signed on 24 October 1998 had named the respondent as her partner. Her pregnancy was confirmed the following month. The respondent only discovered this a few months later, and his solicitor wrote to the consultant saying that he had been under the impression that they had been told of the separation and that treatment had ceased at that time. HHJ Hedley (as he then was) later found that by the time of the second treatment in 1999, the relationship between the mother and the respondent had ended and the respondent had been replaced in the mother's life by her new partner.

The child, a girl, was born on 5 February 2000. The following month, the respondent applied for parental responsibility and contact orders under the Children Act 1989. The court can only make a parental responsibility order on the application of a child's father: see s 4(1)(a). The court may make a contact order in favour of anyone, but the respondent would only be entitled to apply for contact without leave of the court if he is the father of the child: see s 10(4) and (5).

Because of the unusual circumstances of the case, the Official Solicitor was appointed to act for the child. He recommended that the respondent's application be dismissed. Nevertheless it was conceded both by the mother and by the Official Solicitor that the respondent was the legal father of the child. The final hearing took place before HHJ Hedley, sitting as a High Court judge, on 20 September 2000. Direct contact was not pursued and the judge stated that he would not contemplate direct contact before the child was three. But he did order indirect contact and adjourned the application for parental responsibility generally.

The respondent then sought permission to appeal to this court. Permission was refused on 13 February 2001: see Re D (Parental Responsibility: IVF baby) [2001] 1 FLR 972. However, concern was expressed by each member of the court, at paras 8, 39 and 42, that jurisdiction had been assumed on the basis of a concession made without proper exploration of the facts leading to the birth of the child in circumstances where the application of section 28(3) was 'not beyond reasonable argument' (para 41).

The respondent therefore sought to clarify the position by reinstating his parental responsibility application and asking for consideration of his status under section 28(3) of the 1990 Act as a preliminary issue. The hospital records were obtained and the facts outlined above ascertained in more detail than had previously been available. The case was heard in the Family Division by Hedley J, as he has now become. On 27 March 2002 he made an order that the father's application for a declaration of paternity pursuant to section 28(3) be granted.

It was argued for the mother that the application of section 28(3) was a question of fact. These embryos were not placed in her 'in the course of treatment services provided for her and a man together' if at the time when those embryos were so placed they had separated and he took no part in the treatment which she then received. The treatment given to them together ended when the treatment cycle involving the first attempt at implantation ended. It was argued for the respondent that the treatment services were those contemplated in the original consent form. They had begun at a time when the couple were together and it was the same course of treatment which was continuing when the second set of embryos were placed in the mother. The whole process had been predicated, by the clinic, the father and the mother, on the basis that they were being treated together.

Hedley J acknowledged that he had considerable sympathy for this respondent, but that had the mother been seeking financial support from a reluctant man despite her deception, his sympathy would be all the other way. Sympathy was an unreliable aid to statutory construction. He saw the force of the arguments on both sides, but preferred that of the respondent. It was important, so far as possible, that there should be clarity and certainty over legal paternity as such issues could arise many years later when detailed examination of the treatment process could be difficult if not impossible. He also detected in the Code of Practice, maintained by the Human Fertilisation and Embryology Authority under section 25 of the 1990 Act, a concern that it was desirable that a child conceived in circumstances covered by the Act should have a father. Further

'I am satisfied that 'a course of treatment' is for the purpose of section 28(3) that which is spelled out in the consent form of the mother which her partner joins in by acknowledging the legal consequences to him. It seems to me that if circumstances change not only can either party withdraw if they so choose but that under the current Code of Practice the hospital, if informed, should bring that course of treatment to an end. If however that is not done then in my judgment the original course of treatment continues as treatment services provided to both of them together and, if a child is conceived in the course of that, the man will be the father."

Essentially the same arguments were presented and elaborated before us by Mr McFarlane QC for the appellant mother, Miss Scriven QC for the respondent, and Mr Jackson QC for the child, who supported the mother. In resolving them, as Wilson J observed in U v W (Attorney General Intervening) [1997] 2 FLR 282, the proper approach is to ascertain the meaning of the words in issue in the context of the purposes of the legislation as a whole.

The main purpose of the 1990 Act was to regulate the provision of certain types of infertility treatment in the United Kingdom. The use of donated gametes, whether sperm or eggs, the creation of embryos outside the body, and the storage of gametes or embryos can only be carried out by centres licensed by the Human Fertilisation and Embryology Authority (HFEA). A further purpose was to make provision about those who in certain circumstances are to be treated as the parents of a child. By section 27, the woman who is carrying or has carried a child is always the mother of the child even if the egg or embryo is donated. Section 28 deals with the meaning of 'father'. Provision is made for the mother's husband by section 28(2), which reads:

“If - (a) at the time of the placing in her of the embryo or the sperm and eggs or of her insemination, the woman was party to a marriage, and (b) the creation of the embryo carried by her was not brought about with the sperm of the other party to the marriage, then, . . ., the other party to the marriage shall be treated as the father of the child unless it is shown that he did not consent to the placing in her of the embryo or the sperm and eggs or to her insemination (as the case may be).”

Both section 27 and section 28(2) apply whether or not the woman was in the United Kingdom or elsewhere at the time of the placing in her of the embryo or sperm and eggs or her artificial insemination: see ss 27(3) and 28(8). Section 28(3), in contrast, applies only to treatment services provided by a person to whom a licence applies: thus Wilson J held in U v W, above, that it did not apply to treatment given abroad. This was deliberate. Wilson J quoted the explanation given by the Lord Chancellor when moving the amendment at third reading in the House of Lords on 20 March 1990 (Hansard (HL) 5^th series, vol 517, col 210):

"Without the regulation provided by the Bill, it would be extremely difficult to be certain about who is the mother's partner and who is to be treated, for the purpose of this amendment, as the father."

Section 28(3) was, as the legislative history reveals, something of an afterthought. Section 28(2) replaced and refined a provision first enacted in the Family Law Reform Act 1987. This was recommended by the Report of the Committee of Inquiry into Human Fertilisation and Embryology, chaired by Dame Mary Warnock (1984, Cmnd 9314, para 4.17), adopting the earlier recommendation of the Law Commission in its Report on Illegitimacy (1982, Law Com No 118, paras 12.9, 12.17). The Law Commission recognised that it might be criticised for limiting its recommendation to an AID child born to a married woman, when the whole purpose of its report was to eliminate discrimination between the children of married and unmarried parents, but thought it inescapable. The Warnock Committee did not comment on the position of unmarried partners.

The amendment which became section 28(3) was introduced by the Lord Chancellor in response to comments made earlier in the House. The Lord Chancellor explained that if these treatments were to be available to unmarried people at all, it was better that they came within the Act's regulation. Treating the mother's partner as the child's father would make him financially responsible for the child, and give the child succession rights in the event of his death, which would benefit the child and might deter unsuitable people from seeking or being given treatment.

The Act lays down several conditions which must be contained in every treatment licence. Two are particularly relevant to the process of assessing and preparing clients for treatment. First, in section 13(5):

"A woman shall not be provided with treatment services unless account has been taken of the welfare of any child who may be born as a result of the treatment (including the need of that child for a father), and of any other child who may be affected by the birth."

Second, in section 13(6):

“A woman shall not be provided with any treatment services involving - (b) the use of any embryo the creation of which was brought about in vitro . . . unless the woman being treated, and where she is being treated together with a man, the man have been given a suitable opportunity to receive proper counselling about the implications of taking the proposed steps, and have been provided with such relevant information as is proper.”

Detailed guidance about the assessment of the child's welfare and the counselling to be offered to those seeking treatment is given in the Code of Practice. The fourth edition, dated July 1998, was in force at the time of the events in question. Centres are required to take all reasonable steps to ascertain who would be legally responsible for any child born as a result of the proposed procedure and who it is intended will be bringing up the child (para 3.15). Various factors relevant to the child's welfare are listed, including 'their commitment to having and bringing up a child' and 'their ability to provide a stable and supportive environment for any child produced as a result of treatment' (para 3.17 a and b). If donated gametes are to be used, extra factors must be considered, including 'any possibility known to the centre of a dispute about the legal fatherhood of the child' (para 3.18). Where the child will have no legal father, centres are required to have regard to the child's need for a father and should pay particular attention to the prospective mother's ability to meet the child's needs throughout their childhood (para 3.19 a). In the interests of preventing or resolving a dispute about the fatherhood of a child, if a married woman is being treated with donated sperm, centres should try to obtain written evidence of whether the mother's husband does or does not consent (para 5.7); where a woman is being treated together with a male partner, using donated sperm, centres should record at each appointment whether or not the man was present and try to obtain written acknowledgement that they are being treated together and that donated sperm is to be used (para 5.8).

By virtue of section 12(c), it is a condition of every licence that the provisions of schedule 3 shall be complied with. Schedule 3 deals with the consents to be given to the use or storage of gametes or embryos by the people who supplied those gametes or the gametes which created those embryos. Consents under schedule 3 have to be in writing and remain effective unless they are withdrawn by notice to the person keeping the gametes or embryos. Schedule 3 applied, therefore, to this mother's consent to the use and storage of her embryos. She consented to their use in providing treatment services to herself or to herself and the respondent. It did not apply to this respondent at all.

Paragraph 5 of schedule 3 provides that a person's gametes may not be used or received for the purpose of treatment services unless there is an effective consent, but this does not apply to the use of a person's gametes for the purpose of that person, or that person and another person together, receiving treatment services: see para 5(3). In Re B (Parentage) [1996] 2 FLR 15, Bracewell J held on the particular facts that this exception covered the sperm used in that case, so that there was no breach of that condition when the sperm was used without an effective consent. That holding was in no way essential to the decision: the sperm provider would only have been excluded from parenthood by virtue of section 28(6)(a) if he had given the statutory consent. On ordinary principles, therefore, as genetic father he was the legal father. In R v Human Fertilisation and Embryology Authority ex parte Blood [1997] 2 FLR 742, Lord Woolf MR observed, at p 766 d, that Bracewell J had been entitled to come to that decision on the special facts before her, but held that there could not be treatment together for this purpose when the man had died. These decisions do not help us in construing the similar language used in the very different context of section 28(3).

The final provision which is relevant to considering the issue before us is the very broad definition of 'treatment services' contained in section 2(1) of the 1990 Act:

“In this Act . . .'treatment services' means 'medical, surgical or obstetric services provided to the public or a section of the public for the purpose of assisting women to carry children.”

In our judgment, the argument of the mother and the child's guardian is correct. We start from the proposition, advanced by Mr Jackson for the child's guardian, that section 28(3) is an unusual provision, conferring the relationship of parent and child on people who are related neither by blood nor by marriage. Conferring such relationships is a serious matter, involving as it does not only the relationship between father and child but also between the whole of the father's family and the child. The rule should only apply to those cases which clearly fall within the footprint of the statutory language.

The wording of section 28 makes it clear that the time at which legal paternity is created is the time when the embryo or the sperm and eggs which subsequently result in the birth of the child are placed in the woman. Section 28(2) expressly refers to the mother being married at that time. Section 28(3) expressly refers back to section 28(2) for the purpose of ensuring that the mother's husband is excluded from paternity. This suggests that they both refer to the same time. Section 28(3) also focuses on the act of placing the embryo or sperm and eggs in the mother, further suggesting that the question whether this is done 'in the course of treatment services provided for her and a man together' should be answered at that time and no other.

The natural and ordinary meaning of the expression 'in the course of' is 'during' or 'at a time when'. The subsection cannot require that the man is also given medical treatment, because in a case such as this he is provided with no treatment whatsoever. 'Treatment services' is very widely defined in section 2(1) (para 18 above). This expression is not limited to a 'treatment cycle' or to a particular 'course of treatment'. The former expression is recognised in the Code for other purposes, but the latter is not. Section 28(3) cannot mean that the man is to be treated as the legal father if at any time during the provision of treatment services for the woman they were provided for them together. Gametes and embryos can be stored for up to ten years or even longer in some circumstances. There must be a point in time when the question has to be judged. The simple answer is that the embryo must be placed in the mother at a time when treatment services are being provided for the woman and the man together.

That would clearly have covered the facts in U v W, above, where the man and woman jointly agreed that IVF treatment using donor sperm to be carried out that very day. At p 295, Wilson J said this:

"In my view what has to be demonstrated is that, in the provision of treatment services with donor sperm, the doctor was responding to a request for that form of treatment made by the woman and the man as a couple, notwithstanding the absence in the man of any physical role in the treatment. "

Insofar as he was explaining his decision on the facts of that case, this was clearly correct. But in our view it would be wrong to regard those words as laying down a test to be applied to all cases. To do so would be to add a gloss to the clear words of the subsection. The simple approach which we adopt, relying on the wording of the Act, is also preferable to adding the gloss which Hedley J adopted in this case, that the provisions of services continues until either party or the clinic expressly withdraws from the understanding that they are being treated together.

The introduction of the latter gloss may have been influenced by the provisions in schedule 3, but these serve a completely different purpose from the consent and acknowledgement forms employed here. Consent is not referred to in, let alone required by, section 28(3). Neither is consent required by section 28(2): it has to be shown that the mother's husband did not consent. The forms are simply advised by the Code as useful evidence one way or the other. They cannot provide the clarity and certainty which so impressed the judge. They may well be decisive if they are the only evidence available. They may even place an evidential burden on the person who wishes to argue that the couple were no longer being provided with treatment services together at the relevant time. But in this case there is clear evidence that they were no longer being provided with treatment services together at the relevant time.

In our view, the conclusion reached through the simple construction of the words used supports rather than undermines the purpose of the Act. This was to regulate the provision of these treatments. Section 28(3), unlike sections 27(1) and 28(2), is expressly limited to treatment provided by a licensed person. The Act requires that consideration be given to the welfare of the child and that counselling be offered to the prospective parents. If the circumstances which were taken into account when the couple were together change dramatically, it would better serve the purposes of the Act if the matter had to be reconsidered and fresh counselling offered before a further attempt at implantation is offered. That can only be beneficial to the children born as a result. Miss Scriven accepts that had the mother not misled the centre, the treatment would have had to stop and a fresh assessment be made. She stopped short of accepting that had the clinic gone ahead regardless of the changed situation the subsection would not have applied. But that must be the inescapable result.

The mother may have managed to evade inquiry in this case, but it will not be difficult for centres to check the position whenever a further embryo replacement takes place. That can readily be done within existing procedures. The Code already advises that they should record at each appointment whether the man attended. Although the man may not be expected to attend every time, it is not unreasonable to expect him either to attend at such an important time as embryo replacement, or at the very least to sign a new acknowledgement then. In this case, not only was he not there but the mother did not enter his name as her partner on the identity check.

While it is clearly in a child's interests to have a legal father if possible, the Act not only contemplates but expressly provides for two situations in which the child will have no legal father. One is where anonymous sperm donation results in the birth of a child in circumstances where section 28(2) or (3) do not apply, for example to a single woman or a woman in a lesbian relationship. The other, perhaps more surprising, is where the sperm of a man, or any embryo the creation of which was brought about by his sperm, was used after his death: see section 28(6). That is why the Code expressly refers to the extra factors to be considered where the child will have no legal father. It is not self-evident that a child in the situation of this child will benefit from the presence of the respondent in her life: if she would, then the court has ample power to recognise it through sensible contact arrangements without making the child a member of his family.

There is no 'family life' between the child and the respondent which is entitled to respect under article 8.1 of the European Convention on Human Rights. Family life does not inevitably flow from genetic fatherhood, although it often will. It may flow from looking after a child to whom one is not related by blood, but the length and intensity of that relationship will be particularly relevant. Where there is neither a genetic link nor a personal relationship of a family nature, there is no family life to respect: this case is stronger than that of the sperm donor who enabled a lesbian couple to have a child for whom he babysat for a while: see JRM v Netherlands, App No 16944/90.

Finally, while Hedley J was of course right to observe that sympathy is an unreliable guide to statutory construction, it is helpful to consider whether the conclusion reached in a case where one's sympathies lie in one direction would be equally attractive in a case where one's sympathies would lie the other way. It may be the mother or the father who is seeking to establish or deny paternity for a variety of reasons: gone are the days when it was always the mother wishing to prove paternity against a man who denied it (although that was the position in U v W, above). Cases such as this, where a man wishes to assert paternity against a mother who wishes to deny it, are by no means uncommon. But had this mother been wishing to extract child support from this man, the court would have been slow to adopt a construction which would allow her to do so.

We therefore allow this appeal and set aside the order made by the judge.

Two subsidiary questions have been raised by Mr Jackson. First, he questions whether it was appropriate to adopt this procedure. There are several reasons why an application for a parentage declaration under section 55A of the Family Law Act 1986 might be thought preferable. Section 55A(1) provides that:

“Subject to the following provisions of this section, any person may apply to the High Court, a county court or a magistrates' court for a declaration as to whether or not a person named in the application is or was the parent of another person so named.”

We agree that the term 'parent' includes a person who is to be treated as a parent by virtue of section 27 or 28 of the 1990 Act.

There are some advantages to the procedure under section 55A. If it relates to a child, the court may refuse to hear the application if it considers that the determination of the application would not be in the child's best interests: s 56A(6). Declarations made are binding upon Her Majesty and all other persons: s 58(2). The court has power to direct that the papers be sent to the Attorney-General should he wish to intervene: s 59. If a declaration is granted, the birth may be re-registered accordingly: Births and Deaths Registration Act 1953, s 14A.

Of course, findings of parentage can be made in the course of other proceedings, for example under section 4 of the Children Act 1989. The child's birth can be re-registered if certain orders are made but not if they are not: see 1953 Act, s 10A. That distinction was deliberately drawn by the Law Commission in recommending the re-registration provisions: see Law Commission Working Paper No 74, Illegitimacy, 1979, para 9.28. Re-registration may not necessarily be in the child’s best interests if it is not in his best interests to make a substantive order relating to his maintenance or upbringing. Generally speaking it will usually be more convenient to continue to seek findings of fact in the course of proceedings for a substantive order about the child. But if, for example, the case raises a difficult issue of law or public policy, as here, or re-registration would be desirable even without a substantive order, or of course if the child is grown up, then the section 55A procedure should be used.

Secondly, there is the question of the existing order for indirect contact. There was jurisdiction to make that order whether or not the respondent was legally to be treated as the child's father. It does not fall automatically in the light of the decision we have made. There has been no appeal against it. But unquestionably the judge was influenced in his decision to make it by the concession that the respondent was to be treated as the father. It may therefore be appropriate for him to reconsider it, especially as the view of the Official Solicitor at the time was that the risk to the stability of the family unit would outweigh the benefits to the child. On the other hand, the judge found that the respondent might have an important role in helping the child to understand and come to terms with her origins. The order has been working for some 18 months. Now that the pressure of these proceedings is over, both parties need time to reflect on where this little girl's best interests lie.

In those circumstances, the existing order will stay in place, but it is to be hoped that parties can reach agreement about what contact, if any, will be best for the child. Any dispute should be if at all possible resolved by Hedley J to whom the case is already reserved, but we hope that this will not prove necessary.