Case O (Human Fertilisation and Embryology Act 2008)

In In re A and others (Legal Parenthood: Written Consents) [2015] EWHC 2602 (Fam), [2016] 1 WLR 1325, in which I handed down judgment in September 2015, I had to consider a number of cases which raised issues very similar to those which confront me here. It will be recalled that these issues were first identified by Cobb J in his judgment in AB v CD and the Z Fertility Clinic [2013] EWHC 1418 (Fam), [2013] 2 FLR 1357, handed down in May 2013, and that the legally appropriate way forward was not well understood until, in February 2015, Theis J gave judgment in X v Y (St Bartholomew’s Hospital Centre for Reproductive Medicine Intervening) [2015] EWFC 13, [2016] PTSR 1.

Since judgment in In re A, I have given judgments in a number of similar cases: see Re the Human Fertilisation and Embryology Act 2008 (Case G) [2016] EWHC 729 (Fam), Re the Human Fertilisation and Embryology Act 2008 (Case I) [2016] EWHC 791 (Fam), Re the Human Fertilisation and Embryology Act 2008 (Case N) [2016] EWHC 1329 (Fam), Re the Human Fertilisation and Embryology Act 2008 (Case J) [2016] EWHC 1330 (Fam), Re the Human Fertilisation and Embryology Act 2008 (Case M) [2016] EWHC 1572 (Fam), and Re the Human Fertilisation and Embryology Act 2008 (Case L) [2016] EWHC 2266 (Fam). Other judges have also dealt with similar cases: see the judgments of Pauffley J in F v M and the Herts and Essex Fertility Centre [2015] EWHC 3601 (Fam) and of Peter Jackson J in D v D (Fertility Treatment: Paperwork Error) [2016] EWHC 2112 (Fam).

In my judgment in In re A, I set out (paras 6-8) the lamentable background to all this litigation. I referred to the significant number of cases in which the Human Fertilisation and Embryology Authority (“the HFEA”) had identified “anomalies”. I have now given final judgment in thirteen cases (Cases A, B, C, D, E, F, G, H, I, J, L, M and N). This is Case O. Case K, which was before me in July 2016, has been adjourned part heard for further argument. Six further cases (Cases P, Q, R, S, T and U) are currently awaiting final hearing. There is at least one other (Case V) pending. There are probably others, for the HFEA has identified no fewer than 90 cases where there are “anomalies”.

There is no need for me to rehearse again the statutory framework and the legal principles which I dealt with in my judgment in In re A. None of it was challenged before me, or before Pauffley and Peter Jackson JJ, in any of the other cases. None of it has been challenged before me in this case. I shall therefore take as read, and apply here, my analyses of the statutory scheme under the Human Fertilisation and Embryology Act 1990 and the Human Fertilisation and Embryology Act 2008 (In re A, paras 14-25), of the various consent forms which are in use (In re A, paras 26-31), of the previous authorities (In re A, paras 32-43) and of the three general issues of principle which I addressed (In re A, paras 44-63).

For the reasons which I explained in In re A, para 66, I propose to be extremely sparing in what I say of the facts and the evidence in this case.

The applicant, who I will refer to as X, is a woman who was at all material times in a relationship with the first respondent, a woman who I will refer to as Y. They entered into a civil partnership in 2009, which was converted into a marriage in 2015. They had planned their family carefully. Each wanted to bear a child, using sperm provided by the same donor. Because X is somewhat older than Y, they decided that X should be the first to have treatment. Following IUI treatment provided by St Bartholomew’s Hospital Centre for Reproductive Medicine, operated by Barts Health NHS Trust, which I shall refer to as Barts, a clinic which is and was regulated by the HFEA, X gave birth to their first child, who I will refer to as C1, in 2010. C1 had already been conceived when X and Y entered into their civil partnership. Following further treatment at another clinic, Y gave birth to their second child, who I will refer to as C2, some years later. No issue arises in relation to C2; the issue (see below) arises in relation to C1. X seeks, together with other relief, a declaration pursuant to section 55A of the Family Law Act 1986 that Y is, in accordance with section 36 of the 2008 Act, the legal parent of C1. Y is wholeheartedly supportive of X’s application.

The clinic, the HFEA, the Secretary of State for Health and the Attorney General have all been notified of the proceedings. With the exception of the clinic, which was represented, although not joined, none has sought either to be joined or to attend the hearing. The clinic’s position, entirely supportive of X’s application, is set out in various witness statements and in the position statement prepared by Ms Dorothea Gartland, who appeared before me on its behalf. Given the nature of one of the issues (see below), I decided that C1 needed to be joined and a guardian appointed. Happily, it was possible for the same guardian to act in this case as had acted in all the other cases before me where there was a guardian. The guardian was represented by Ms Deirdre Fottrell QC and Mr Thomas Wilson. X was represented by Mr James Turner QC.

I had written evidence from X and Y. They were present throughout the hearing, which took place on 26 July 2016. Neither was required, and neither asked, to give oral evidence.

Just as in each of the cases I had to consider in In re A and in Case G, Case I, Case J, Case L, Case M and Case N so in this case, having regard to the evidence before me, I find as a fact that:

I add that there can be no suggestion that any consent given was not fully informed consent. Nor is there any suggestion of any failure or omission by the clinic in relation to the provision of information or counselling.

Following the hearing I indicated that I would in principle, and subject to them being in appropriate form, make the orders sought. I now (13 September 2016) hand down judgment explaining my reasons for making those orders.

Adopting the terminology I have used in previous cases, the primary problem in the present case is very shortly stated. For reasons which cannot now be identified, although X signed, at the appropriate time, a Form WP in proper form, no Form PP signed by Y can be found in the Barts records relating to X’s treatment. Nor is there any Form IC signed by Y. However, the Barts Treatment Checklist relating to X’s treatment contains the following entry in relation to the Information Session, the date of which – the same date as on the Form WP – has been inserted in manuscript:

“[In print] Attended [added in manuscript √]

“[In print] Partner attended [added in manuscript √]

“[In print] Female Consent to Treatment [added in manuscript √]

“[In print] Male Consent to Treatment [amended in manuscript to read Female and added in manuscript √]”

Two other matters emerge from a close analysis of the relevant Barts file relating to X’s treatment. First, it is quite clear from another note of the events which took place on the same day that the Barts Characteristics Sheet was “completed & submitted”, but it cannot be found anywhere in the Barts records relating to X’s treatment. Secondly, a search of the Barts records relating to X’s treatment has revealed the existence of a document relating to a different patient’s treatment. So we know that the file relating to X’s treatment does not contain (as it should) a document which is known to have existed but does contain (as it should not) a wholly irrelevant document relating to another patient. The grave deficiencies in the clinic’s record-keeping are all too apparent.

In all the circumstances, and having regard to all the evidence I have heard, I am entitled to conclude, and I find as a fact, that the entry in the Treatment Checklist sufficiently evidences a Form PP, signed by X’s (the mother’s) partner Y at the appropriate time and in proper form. The Form PP, I find, has been lost or mislaid.

In these circumstances, given the facts and my findings, the application of the principles set out in the earlier authorities is simple and the answer is clear: X gave the relevant consent, so did Y, and X is entitled to the declaration she seeks. Analytically, and so far as material for present purposes, the circumstances in the present case are indistinguishable from those in Case A, Case F and Case H, so X is entitled to the relief she seeks: see In Re A, paras 82-83, 86-87 and 103-104.

If matters had ended there, the case would be simple and the outcome clear. Unhappily, however, there is another hurdle for X and Y to overcome. I take up the story as it is set out by X and Y in their witness statements.

When told by the clinic of the mistake which had been made, X and Y were, to use X’s word, “devastated.” Y was at home – in fact she was far advanced in her pregnancy with C2 – when Barts telephoned:

“They told me that I was not [C1’s] legal parent … I rang [X], instantly, I was sobbing. I could not believe what I had been told. Fortunately [she] was very close to home. When I received that telephone call I felt like my whole world had been ripped apart. I was no longer [C1’s] mummy. This still remains very raw.”

X remembers Y telephoning:

“[She] called me, [she] was sobbing and I could barely make out what she was saying.”

X and Y were told both by the clinic and by the solicitors they instructed – not those involved in the present proceedings – that the only solution was for Y to adopt C1. I have referred on previous occasions to how utterly inappropriate adoption is as a remedy in cases like this: see In re A, para 71(vii), and Case I, para 24. However, as I observed in Case I, para 23, my impression is that this erroneous view, shared at the time both by the HFEA and by the clinics whose actions I have had to consider, and, I might add, by many family lawyers, was based on assumptions, derived from Cobb J's judgment in AB v CD and the Z Fertility Clinic [2013] EWHC 1418 (Fam), [2013] 2 FLR 1357, which were widespread until, in February 2015, Theis J gave judgment in X v Y (St Bartholomew’s Hospital Centre for Reproductive Medicine Intervening) [2015] EWFC 13, [2016] PTSR 1.

Y accordingly made an application to the Family Court to adopt C1. X and Y found the adoption process – and I can well understand why – very intrusive, very hurtful and a total invasion of their privacy. Y’s account is telling: “I felt I was stared at and judged. I felt that everyone analysed us.” But more fundamentally, as X put it, “the whole adoption process felt wrong.” Y’s anguished words are heart-breaking:

“I feel like a piece of me has been taken away from me. I cannot even start to explain the pain it has brought to us all. We tried our hardest to do things properly and yet it’s like I no longer feel like I am [C1’s] mummy. I was [C1’s] mummy but now I am [C1’s] adoptive mummy. We do not want [C1] to be different to [C2] … We feel disappointed and let down by Barts. We planned our family carefully. We want [C1’s] parenthood to be what it should have been. Adoption is not what we wanted.”

X’s words are equally raw:

“It broke my heart when I had to hand in [C1’s] original birth certificate. I am so upset that [C1] now has a different status as an adopted child. [C1] is now different to [C2], when [this] should not have been.”

The report of the adoption social worker prepared for the adoption proceedings contains this important passage:

“This application is quite unique.” After setting out the circumstances, the writer continued: “The couple have sought legal advice and have been advised that the only way to remedy this is for [Y] to formally adopt [C1]. The couple have found this situation extremely distressing and in all honesty do not want this process. However they want everything for [C1] to be proper and legal and for [Y] to be recognised legally as [C1’s] parent, as was always intended.”

In due course – this was all in 2014, before Theis J had given her important judgment – the District Judge made an adoption order. It was not a happy occasion for X and Y. In her report prepared for the present proceedings, C1’s guardian records their feelings:

“The description of that day was very emotional. “There were lots of other couples there celebrating. It was a special day for those families. It was a miserable day for us, a defeat, a horrible occasion.””

The guardian’s report is insightful, empathetic and humane. It is a powerful and moving exploration of what has gone wrong:

“[The adoption] was an unwelcome, unwanted and intrusive process but one in which [Y] and [X] felt compelled to participate for they wanted legal certainty for [C1] and were told they had no other options. They are now, understandably, further distressed to learn that other remedies may have been available to them. They are seeking a Declaration of Parentage and a revocation of the adoption order. I unequivocally support their applications.

… The adoption application was made with great reluctance. Particularly cruel was having to hand in the original, and very precious, birth certificate. “We are private people. It was horrible having to talk to strangers about such a personal part of our lives. It was like being public property.” [Y] talked about being asked to leave the room by the Cafcass Reporting Officer who witnessed [X’s] consent. She described sitting in the kitchen and crying.”

The guardian comments that at no point in the process did anyone raise any queries about the unusual background circumstances or ask whether there might be a different route to securing parenthood for C1. She continues:

“[C1] now has a new birth certificate and a new status as an adopted child – something [Y] and [X] now know to be completely unnecessary, having been made aware that an alternative could have been made available to them … [They] feel a level of stigma about the adoption and an acute awareness of [C1’s] difference to [C2]. They are concerned that [C1] will worry about why [C1] was adopted and [C2] is not. They are concerned about how to explain this … They are upset and angry on [C1’s] behalf – and anyone hearing their account cannot help but be moved. “We are honourable, honest people. We believed the system and we did what we were told.” They are disappointed that other professionals at the time did not question the adoption process or suggest they seek alternative advice. They feel as if the adoption was entered into under false pretences. I consider their sentiments are both understandable and entirely justified and that [C1] should not have been adopted.”

Recognising that revocation of an adoption order is “a most unusual step”, the guardian is nonetheless unequivocal in her recommendations:

“However, from [C1’s] perspective, I can identify absolutely no need or justification for an adoption order, given that a realistic alternative would certainly have been pursued at the time had the parents received different legal advice … On [C1’s] behalf, I have no hesitation in recommending that the court revoke the adoption order and replace it with a Declaration of Parentage – the latter order being one that will equally meet [C1’s] welfare needs and interests. It will afford [C1] the permanence and security that all children should have, and will give effect to the legal relationship that had always been intended when the parents had the fertility treatment. It will remove the unnecessary stigma of [C1’s] status as an adopted child and afford [C1] parity with [C2].”

The guardian concludes with the hope that the original birth certificate be returned, this document having, as she says, “enormous significance” for X, Y and C1.

I wholeheartedly agree with the guardian’s observations and unequivocally accept her recommendations. For all the reasons she gives, C1’s welfare demands that the adoption order be revoked. Common humanity to X and Y demands the same. They have suffered very greatly from failings in the ‘system’. In the circumstances I have described, to deny them the relief they seek would seem an affront to justice. But does the law enable me to make the desired order? In my judgment, it does.

I have been taken to the authorities: see In re F(R) (An Infant) [1970] 1 QB 385, Re RA (Minors) (1974) 4 Fam Law 182, In re F (Infants) (Adoption Order: Validity) [1977] Fam 165, Re M (Minors) (Adoption) [1991] 1 FLR 458, In re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239 (affirming Re B (Adoption: Setting Aside) [1995] 1 FLR 1), Re K (Adoption and Wardship) [1997] 2 FLR 221, Webster v Norfolk County Council and the Children (by their Children’s Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378, Re W (Adoption Order: Set Aside and Leave to Oppose) [2010] EWCA Civ 1535, [2011] 1 FLR 2153, Re PW (Adoption) [2013] 1 FLR 96, Re W (Inherent Jurisdiction: Permission Application: Revocation and Adoption Order) [2013] EWHC 1957 (Fam), [2013] 2 FLR 1609, Re C (Adoption Proceedings: Change of Circumstances) [2013] EWCA Civ 431, [2013] 2 FLR 1393, and PK v Mr and Mrs K [2015] EWHC 2316 (Fam). See also, in relation to the revocation of a parental order made under section 54 of the 2008 Act, G v G (Parental Order: Revocation) [2012] EWHC 1979 (Fam), [2013] 1 FLR 286.

There is no need for me to embark upon any detailed analysis of the case-law. For present purposes it is enough to draw attention to a few key propositions:

I bear in mind, also, two important observations that appear in the authorities. The first is the observation of Sir Thomas Bingham MR in In re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239, page 251:

“The act of adoption has always been regarded in this country as possessing a peculiar finality. This is partly because it affects the status of the person adopted, and indeed adoption modifies the most fundamental of human relationships, that of parent and child. It effects a change intended to be permanent and concerning three parties. The first of these are the natural parents of the adopted person, who by adoption divest themselves of all rights and responsibilities in relation to that person. The second party is the adoptive parents, who assume the rights and responsibilities of parents in relation to the adopted person. And the third party is the subject of the adoption, who ceases in law to be the child of his or her natural parents and becomes the child of the adoptive parents.”

The other is that of Hedley J in G v G (Parental Order: Revocation) [2012] EWHC 1979 (Fam), [2013] 1 FLR 286, para 33:

“the adoption authorities show that the feelings of an injured party are not germane necessarily to consideration of an application to set aside. The hurt of the applicants in both In re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239 … and Webster v Norfolk County Council and the Children (by their Children’s Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378, was immeasurably greater than here and it availed them nothing.”

The present case is unprecedented, indeed far removed on its facts from any of the previously reported cases. The central fact, even if no-one recognised it at the time, is that when Y applied for the adoption order she was already, not merely in fact but also in law, C1’s mother. It follows that the entire adoption process was carried on while everyone, including the District Judge, was labouring under a fundamental mistake, not, as in In re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239, a mistake of fact but a mistake of law, and, moreover, a mistake of law which went to the very root of the adoptive process; indeed, a mistake of law which went to the very root of the need for an adoption order at all. The entire adoption proceeded upon what, in law, was a fundamentally false basis.

Flowing also from this is that the consequence of an order revoking the adoption order will in this case be fundamentally different from in any of the other cases. There will be no uprooting of C1 from one set of parents and return to another set of parents; C1 will remain, as hitherto ever since birth, with the same people, the people who, to C1, as also to X and Y, are and always have been C1’s parents in every sense of the word, parents emotionally, psychologically, socially and legally. X and Y always intended to be, and in law always were, C1’s parents.

To make an order revoking the adoption order, as I propose to do, will not merely right a wrong; it will recognise a legal and factual reality and put an end to a legal and factual fiction, what Ms Fottrell rightly described as a wholly contrived position. And it will avoid for the future – and this can only be for C1’s welfare, now, into the future and, indeed throughout life – all the damaging consequences to which X, Y and the guardian have drawn attention. As Ms Fottrell put it, C1’s welfare will be better served by restoring the status quo ante and setting aside the adoption order. I agree. I can detect no convincing argument of public policy pointing in the other direction; on the contrary, in this most unusual and highly exceptional case public policy marches in step with justice to X, Y and C1; public policy demands that I make the order which so manifestly is required in C1’s best interests.

Subject to any further submissions from counsel as to the precise form of the orders, I shall therefore make an order revoking (to adopt the language of Schedule 1, para 4(6) of the Adoption and Children Act 2002, “quashing”) the adoption order and an order containing an appropriate form of declaration.

Two issues in relation to C1’s birth certificate required to be resolved. They differ from the issues I recently had to consider in Re the Human Fertilisation and Embryology Act 2008 (Case L) [2016] EWHC 2266 (Fam).

The first arises because of the fact that, when a child is adopted, the register of the child’s birth is marked “Adopted” (see section 79(1) and Schedule 1, para 1(2), of the Adoption and Children Act 2002 (Footnote: ¹)) and any birth certificate which is thereafter issued will show that marking. X and Y understandably want to ensure that any birth certificate issued in future is ‘clean’ and not marked “Adopted.” Clarification on this point was accordingly sought from the Government Legal Department. Having taken instructions, the Government Legal Department replied by a letter dated 22 August 2016. The position is as follows:

The other issue, which I have already referred to, relates to X and Y’s very understandable wish to retrieve from the court what for them is C1’s original birth certificate. With the assistance of the relevant Designated Family Judge, to whom I am most grateful, I have been able to retrieve the relevant adoption file from the Family Court. It contains, unmarked and as it was handed in, C1’s original birth certificate. I propose to direct that it be handed back to X and Y. It is for them, as also for C1, a most important document, with, for them, a human, personal and emotional significance which far transcends its purely legal importance.

I shall direct that there be placed on the adoption file in the Family Court a photocopy of the original birth certificate, a copy of this judgment and copies of the various orders I propose to make.

Both in her position statement and orally in court, Ms Gartland repeated the clinic’s apology – “The Trust is extremely sorry” – for the obvious distress it had caused and reiterated its wish to assist the family to obtain legal certainty for C1. Very properly, the clinic has agreed to pay the costs.