AK, Re Human Fertilisation and Embryology Act 2008

Since I handed down judgment in In re A and others (Legal Parenthood: Written Consents) [2015] EWHC 2602 (Fam), [2016] 1 WLR 1325, I have had to consider a number of cases raising issues very similar to the issue which confronts me here. The most recent judgment was Re the Human Fertilisation and Embryology Act 2008 (Cases AD, AE, AF, AG and AH) [2017] EWHC 1026 (Fam). They were the thirtieth to thirty-fourth of these cases in which I have given a final judgment. This judgment relates to another case, Case AK. Two other cases, Cases AI and AJ, are pending. That makes thirty-seven cases in all.

For the purposes of this judgment I shall take as read the analysis in In re A and the summary of the background to all this litigation which appears in Re the Human Fertilisation and Embryology Act 2008 (Case O) [2016] EWHC 2273 (Fam).

For reasons which will by now be familiar, I propose to be extremely sparing in what I say of the facts and the evidence in this case.

The applicant is a woman. She was neither in a civil partnership with nor married to the respondent mother. The case relates to treatment provided by Care Fertility Northampton, a clinic regulated by the Human Fertilisation and Embryology Authority. I shall refer to the applicant as X, the respondent as Y and the child as C. X seeks a declaration pursuant to section 55A of the Family Law Act 1986 that she is, in accordance with sections 43 and 44 of the Human Fertilisation and Embryology Act 2008, the legal parent of C. Although they are now separated, 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. None has sought to be joined, though the clinic attended the hearing in the person of its “person responsible” and was represented by counsel. Given the nature of the issue (see below) I decided that there was no need for C to have a guardian appointed.

I heard the case on 21 July 2017. X was represented by Mr Dorian Day, the clinic by Ms Marlene Cayoun. Y was not present but had sent a handwritten letter to the court dated 18 July 2017 “to confirm my support for … the applicant, in the hearing to obtain parental status for our [child].” The letter, having explained why she could not be present, went on:

“[X] has my full support and backing in this case. I hope in court on Friday this terrible error by Care Northampton is rectified and we can start to move on from all the stress and upset it has caused.”

X was present in court. There was, in view of the conclusion I had come to, no need for X to give oral evidence but in accordance with my invariable practice in these cases (see Re the Human Fertilisation and Embryology Act 2008 (Cases AD, AE, AF, AG and AH) (No 2) [2017] EWHC 1782 (Fam), para 12) I asked X if she wanted to speak. She did so from the well of the court – I saw no need for her to be sworn. Her words, though brief, were powerful and very moving; for some of the time she was in tears, and I can well understand why.

I need at this point to go back a little. On 27 June 2017, the “person responsible” at the clinic made a witness statement, in the course of which she offered “my unreserved apology to [X] and [Y] for this error both personally and on behalf of Care Fertility Northampton” and went on “to express my sincerest apologies on behalf of Care Fertility Northampton and Care Fertility Group generally, for the distress that this matter has inevitable caused [X, Y and C].”

X responded in a witness statement dated 13 July 2017. I deliberately do not set out the more personal matters it deals with, but there are two aspects to which I think I should draw attention. The first relates to the impact on X of discovering that there was a question over her parentage of C:

“… when I was made aware of the fact that I legally had no rights in respect of [C] due to a significant error by the CARE Fertility Group Limited (CFGL), my whole world was turned upside down and this obviously had a significant effect on me and my ability to cope with life generally on a day to day basis.

I was completely unable to deal with being told that I had not legal rights of parentage in respect of my [child]. I know that [C] wouldn’t understand this or wouldn’t view me any differently but that didn’t change how it had made me feel. I felt that I was an inferior person in [C]’s life so far as the outside world was concerned. I felt that the confidence that I had been given in the change in the law to allow same sex couples to have children and be considered legal parents had been snatched away from me. I simply felt that I was no more than a step parent to [C] rather than [C’s] actual parent who had been involved in every part of [C’s] life from deciding to have [C], the fertility process, [C’s] birth and then … upbringing.

… A declaration from the court cannot take away the hurt and distress that I have felt from the moment that I found out about this issue until it will have been resolved, it also cannot undo the ongoing effects that this situation has caused …”

The second relates to her reaction to the witness statement from the clinic:

“Despite all that I have been through emotionally in this matter I felt that the CFGL empathised and understood how their negligent error had effected me and that they only wanted to assist me in putting matters right. However, having read the statement prepared on behalf of the clinic by …, I don’t believe that they have any understanding whatsoever about how this has affected me or the gravity of their mistake. Yes they accept in the statement that they made a mistake but they seem to somewhat try to pass it off as insignificant and non consequential in terms of the effect that this has had on me. I felt sick to my stomach when I read the statement … because I felt that they, of all people, would have at least recognised the harm and upset that they would have caused.”

She concluded:

“The reality is that this has had a massive traumatic and financial effect on my life.”

In the light of the rest of her evidence, I am quite satisfied that this is no exaggeration on X’s part.

Before me, in court, X explained the effect all this had had on her relationship with Y, on her job and, worst of all, on her relationship with C.

I draw attention to these matters not so much to criticise the clinic, whose attitude throughout this case has been very significantly better than in a number of other cases where criticism has been merited, but to bring out – not for the first time, I have to say – the devastating effects these errors and the subsequent litigation have on the parents blamelessly and unwillingly caught up in the process. I am not surprised that X should have used the word “traumatic.” It describes, unhappily but all too accurately, the impacts on them which have been described to me by so many parents in these cases. I venture to repeat again what I said in Re the Human Fertilisation and Embryology Act 2008 (Case G) [2016] EWHC 729 (Fam), para 32:

“If ever there was a situation calling for empathy, understanding, humanity, compassion and, dare one say it, common decency, never mind sincere and unqualified apology, it is surely this.”

At the end of the hearing I indicated that I was making the order sought. I now (28 July 2017) hand down judgment explaining my reasons.

Although I am acutely conscious of the stress, worry and anxiety burdening parents in these cases, and of the powerful human emotions that are inevitably engaged, this case is, in terms of the applicable legal analysis, straight-forward and simple, though on the facts it raises a novel point. The evidence, which there is no need for me to rehearse in detail, is compelling. The answer, at the end of the day, is, in my judgment, clear.

Just as in each of the other cases I have had to consider, 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.

Adopting the terminology I have used in previous cases, the problem in this case is very shortly stated. The Form WP was correctly completed by Y. There is no Form PP that can be found. It is not clear whether this is because there never was a Form PP or because the Form PP has been lost, but the case is not put forward on the basis that I can find that a properly completed Form PP has been lost. Nor does there seem ever to have been a Form IC.

The Form WP was, as I have said, properly completed by Y. Y’s name and date of birth appear in section 1 (“About you”). X’s name and date of birth appear in section 2 (“About your partner”). The consent box in section 3 on the second page (“Your consent to your partner being the legal parent”) was ticked. Y signed the declaration in section 4.

Immediately following that signature, and the date of signature, the printed form contains the following text:

“If signing on behalf of the person consenting

If the person consenting is unable to sign for themselves because of illness, injury or physical disability, someone else representing the person can sign the form on their behalf. There must also be a witness confirming that the person consenting is present when the representative signs the form.

Representative’s declaration

• I declare that the person named in section 1 of this form is present at the time of signing this form.”

Adjacent to the words “Representative’s name” there is a box in which Y had written X’s name. Adjacent to the words “Representative’s signature” there is another box which contains X’s signature. Adjacent to the words “Relationship to the person consenting” there is another box in which Y had written the word “Partner”. This part of the form bears the same date as the previous part. Both parts were obviously completed and signed on the same day. At the foot, the form is witnessed by a member of the clinical team.

As In re A demonstrates, the ultimate question is whether X has, within the meaning of sections 44(1)(a) and 44(2) of the 2008 Act, “given … a notice [in writing .. signed by [X]] stating that [X] consents to [X] being treated as the parent of any child resulting from treatment provided to [Y].” Now X has signed the Form WP, so the question reduces itself to this: in these circumstances, is the Form WP signed by both Y and X effective both as a notice given by Y in accordance with section 44(1)(b) – to which the answer is plainly Yes – and as a notice given by X in accordance with section 44(1)(a)?

This is not a question which in this precise form has arisen before. There is, unlike in many of the more recent cases I have had to consider, no case directly in point. So it has to be determined having regard to the principles to be extracted from the previous case-law, In re A in particular.

It is quite obvious that there has been a mistake. Whatever else X was doing, she was not signing the Form WP as Y’s “representative”. Y, after all, had signed herself. So what was X doing, what did she and Y and the witness think she was doing, when she signed the Form WP, if not to acknowledge and record that she was to be a legal parent?

The answer, in my judgment, is clear and obvious: X was signing the form, as Y’s “partner” – the word which in the relevant part of section 5 describes the capacity in which she was signing, and the word which appears in sections 2 and 3 – and that can only have been to signify that, as section 3 spelt out, she (X) was to be a “legal parent.” What otherwise, looking at the matter from Y’s point of view, was the point of her partner X signing the document along with Y, what, looking at the matter from X’s point of view, was the point of her signing the document along with Y, if not to record their joint acknowledgment that X was to be a parent? If X was not to be a parent, why did she sign the Form WP at all?

X is entitled to the declaration she seeks.

It was for these reasons that, at the conclusion of the hearing, I made a declaration in the terms sought by X.

The clinic has very properly agreed to pay X’s reasonable costs. There is a dispute as to the appropriate amount. Both parties are content that I proceed immediately to a summary assessment.

The costs claimed by X’s solicitors amount in all to some £25,000 net of VAT, the solicitors’ costs amounting to £11,500 (being 46 hours charged at £250 per hour), counsel’s fees amounting to some £13,360 (including some 36 hours work out of court), and other disbursements to £515.

Challenge is mounted to the solicitors’ costs under three heads: (i) first, it is said that the Grade A Partner’s hourly rate of £250 should be reduced to £217, the National grade 1 rate (the effect of this would be to reduce the sum of £11,500 to £9,982); (ii) next, it is said that a total of 6½ hours should be charged at a Grade C rate of £161 (the effect of this would be to reduce the amount claimed by a further £364); (iii) finally, it is said that a number of letters and emails have been charged a full hour each. Counsel’s fees are challenged on three points: (i) first, in relation to 8 hours spent researching and reading the authorities; (ii) next, in relation to 6 hours spent compiling the index to and preparing the bundle of authorities; (iii) finally, in relation to 4½ hours drafting the case summary and skeleton argument.

Putting these specific points in context, Ms Cayoun says that the experience of those instructing her is that in cases such as this (they have been involved before me in Cases P, Q, R, S, T and U) the costs associated with such applications are “routinely” in the region of £10,000 – £15,000 (inclusive of VAT). She suggests that on this basis the clinic would have expected the costs to be about £12,500 (inclusive of VAT). As against that, it is to be noted that the costs in these cases are sometimes much higher: see, for example, Re the Human Fertilisation and Embryology Act 2008 (Cases F and H) (No 2) [2017] EWHC 964 (Fam) and Re the Human Fertilisation and Embryology Act 2008 (Case N) (No 2) [2017] EWHC 965 (Fam).

Despite Ms Cayoun’s attractively, and moderately, presented submissions, I propose to assess the cost summarily in the sums claimed.

Given the enhanced degree of ‘client care’ that all these cases require, and this case, in particular, demanded, the solicitor’s hourly charging rate of £250 was, in my judgment, entirely reasonable. Having regard to all the circumstances, and to the realities of practice in a small firm, the fact that the partner did various things which in a larger firm (probably charging significantly more) would have been delegated to a Grade C is not, in my judgment, any reason for reducing this part of the bill. So far as concerns the basis of charging in relation to letters and emails, the bill, as I read it, records not the number of letters (emails) but the number of hours’ work involved. No doubt there is an element of ‘rounding’ here but nothing, in my judgment, which requires adjustment to the bill.

So far as concerns counsel’s fees, it is important to emphasise, as I have already noted, that this case raised a point which had not arisen before; this was not, as in many of the other cases I have had to consider, a case ‘on all fours’ with some previous case. In these circumstances, it was obviously necessary for counsel to examine, with care, what is now a substantial volume of decisions, in order (a) to be sure that there was not, in fact, any case directly in point and (b) to marshall the best arguments in favour of his client’s case. Whilst not going so far as to suggest that ‘no stone should be left unturned’, the issues in these cases, and the potential life-long implications for both parent and child, are so important, so grave, that there can be no question of cutting corners. And the fact that, in the event, the judge has come to a conclusion without hesitation, cannot be read back to support any suggestion that much work was not required on the part of counsel, both in researching the law and in preparing a proper bundle of authorities for the assistance of the court. In all the circumstances there is, in my judgment, no justification for any adjustment.