D v D (Fertility Treatment: Paperwork Error)

This is an application in effect by a married couple, although one is formally the applicant and the other the first respondent, for a declaration of parentage under section 55A of the Family Law Act 1986 in respect of a young child. The child was born as a result of successful fertility treatment which was undertaken with the assistance of donor gametes in respect of one of the couple.

It is one of a series of cases, to which I will refer in a little more detail in a moment, where an essentially trivial error in the paperwork surrounding the fertility treatment has led to serious legal consequences. However, before coming to those, I would want to record that the couple has nothing but praise for the clinical staff for the treatment they received and they, of course, consider themselves blessed to have increased their family in the way that they have done. Equally, the clinic, the Hewitt Fertility Centre, a subsidiary of the second respondent, the Liverpool Women’s Hospital NHS Foundation Trust, has fully explained what went wrong, offered an unreserved apology to the couple for its mistake and has taken responsibility for the consequent legal costs.

Even so, the distress caused by an unnecessary mistake of this kind cannot be overstated. It has caused this couple, like others in their position, well over a year of anxiety and led them into completely needless legal proceedings. Accordingly, it is not only appropriate to set out what has taken place here in a way that is publicly available, but also to see whether anything can be learned from experience so that other families can avoid it.

This application takes place against the background of other cases concerning paperwork errors. Most recently, the President of the Family Division dealt with a sequence of cases under the reference A & Ors (Human Fertilisation and Embryology Act 2008) [2015] EWHC 2602 (Fam). That decision established that errors in consent forms can be overcome where it is obvious that they are mere errors against a background of clear consent of the kind required by the legislation. Subsequently, there have been other cases, in particular, In the Matter of the Human Fertilisation and Embryology Act 2008 Case J [2016] EWHC 1330 (Fam), and, since then, Case M and Case N have followed, and there will be others.

All that need be said about the history here is that the couple were engaged with the clinic for quite a considerable period and that, some years ago, they completed the paperwork that lies behind the subsequent pregnancy and birth. They were not, at that time, married, although they have subsequently become so. The precise difficulty is identical to that encountered in Case J, the decision in which was given only three weeks ago.

Each adult was rightly called upon to fill in and sign a form relating to the legal parentage of the intended child. In the case of the female partner, this is Form WP, while the male partner signs Form PP. In this case, Form PP was fully completed. It is entitled, “Your consent to being the legal parent.” The Form WP is entitled, “Your consent to your partner being the legal parent.” It is a two-page form. When filled out, as it was in this case, by the female partner, it required her to give her name, her date of birth and NHS or passport number, the same information for her partner and, at the end, a declaration with a signature and a date. Above the declaration is a small paragraph at the top of the second page, reading as follows:

“(3)

About your consent.”

Below that:

“(3.1)

Your consent to your partner being the legal parent.”

Below that is a tick box with the words:

“I consent to my partner (named in section 2) being the legal parent of any child born from my treatment.”

That declaration, which could equally have appeared as part of the declaration above the signature, has a tick box of no more than half a centimetre square. In this case, as in Case J, the female partner omitted to tick that box. That omission, which, for reasons I will explain, I would regard as fairly understandable, was not picked up by the clinic and, there, matters rested for several years. Happily, the intended child was born and, so far as the family was concerned, everything was completely in order.

Following decisions of Cobb J and Theis J, the Human Fertilisation and Embryology Authority (HFEA) directed licensed clinics to conduct an audit on their paperwork to see whether there were any other significant errors. There were. From the decisions of the President, it seems that there are some dozens of cases that may fall into similar categories.

So far as this clinic is concerned, its audit covered 178 cases and four errors were discovered. In fact, three of these cases did not lead to conception and birth, so this is the only family directly affected.

The sequence of events is that the clinic discovered the error in August 2014 and took advice from the HFEA. I am not aware of the exact nature of that advice, but it seems to have led the clinic to contact the couple in March 2015 and to suggest to them that the solution would be for them to take proceedings to adopt their child. That suggestion, for which the clinic itself may not be primarily responsible, compounded the feelings of shock and distress felt by the parents. Ultimately, with reassurance about the costs involved, they began these proceedings in January 2016, and they have come for final hearing today.

During the course of the proceedings, the consultant embryologist, as the person responsible within the regulations for the management of the licensable activity, has filed a full statement in response to the parents’ accounts, setting out what took place and what has been done to prevent a recurrence in terms of training of staff and double-checking of forms.

I am satisfied that this case is on all fours with Re J. This was a case in which the couple always consented to them both becoming the child’s parents. They have participated in the treatment process with that as the bedrock. They have lived their lives and brought up their child on the basis of that consent. The absence of no more than a centimetre of ink in a tick box is nothing more than an understandable error. The failure to spot it was highly regrettable, but I have no hesitation in finding that the consent required by the statute was given, albeit that the form itself was incompletely completed.

I will, accordingly, make a plain declaration that the applicant is the legal parent of the child, alongside the first respondent. I will make a separate order by consent in relation to the not insignificant legal costs that are to be paid by the clinic, and I will direct that the file is not to be accessed by anyone without permission of the President of the Family Division for the time being.

There are certain matters of practice that I wish to bring to attention. Having discussed the matter with the President of the Family Division, I draw the attention of the HFEA to the wording of Form WP and Form PP. Where a form has at its head, “Your consent to your partner being the legal parent,” and you are asked to sign it, it would seem unnecessary for there to be a tick box as well as a requirement for signature. I cannot detect the purpose of the tick box when the effect of the consent could as easily be described in the declaration above the signature.

Everybody makes mistakes in filling in forms from time to time, even important ones, and experience shows that mistakes can be made in checking forms. I fear that the small tick box in this case is in some respects an accident waiting to happen. It escaped the very competent female partner in this case, and the partner in the case of Re J, and those who were charged with checking in both cases, so it cannot be thought to be extraordinary. I would invite the HFEA to consider whether this part of the form is not in fact superfluous at best and a potential trap at worst.

Secondly, with regards to good practice by clinics who discover serious problems of this kind: it is understandable that the clinic should wish to receive advice from its regulatory body, in this case the HFEA, in order to be in a position to assist the family that was affected. In her statement, the consultant embryologist writes:

“We became aware of the mistake in August 2014, but did not inform the couple until March 2015. This was due to there being no legal precedents for this type of issue and, therefore, we did not know what information we could give to the families.”

She goes on to helpfully describe all the steps that were taken to get advice and resolve the matter.

I do not, however, consider that a delay of some eight months can possibly be justified, even in such difficult circumstances. The families who are affected by predicaments of this kind are, in my view, entitled to be told at the earliest stage reasonably possible, however painful the news will be. The clinic or the HFEA are not the only source of wisdom and, indeed, in these cases, their conclusions have proved to be incorrect. Families who wish to do so should be enabled to get their own advice in real time. There was, in my view, nothing to prevent the clinic from informing this couple at the outset, giving assurances as to legal costs. This may have led to matters taking a different and possibly swifter course.

Thirdly and lastly, by the time the proceedings were launched in January 2016, it was apparent that the clinic would need to be a respondent. It very properly disclosed all its records at the outset, but it was not, in fact, until some ten days before this hearing that the clinic, in compliance with this court’s directions, filed the statement from the embryologist, as the person responsible within the regulations for the management of the licensable activity. The statement sets out in narrative form everything that the clinic knows to have happened. With the benefit of hindsight, I would suggest that such a statement ought to be filed at the earliest stage in the proceedings so that the family affected has the maximum opportunity to consider what it says and it may indeed lead to the proceedings coming to a quicker conclusion.

All that said, this was treatment that was professionally provided in all other respects and has led to the happiest of outcomes. I therefore bring the proceedings to an end with pleasure.