Family Law

In the judgment F v M and Others [2015] EWHC 3601 (Fam), [2016] FLR forthcoming, Pauffley J was concerned with a couple who conceived a child as a result of fertility treatment at a licensed clinic.

There was dispute as to whether written consent had been provided by both parties prior to treatment and the clinic had no record of a consent form. The mother applied for a declaration under s 55A of the Family Law Act 1986 that F was not the child's father. F also applied for a declaration that he was the father.

Although during the proceedings the mother conceded that there should be a declaration in favour of the father, the judge emphasised the President's comment in Re Human Fertilisation and Embryology Act 2008 (Cases A, B, C, D, E, F, G and H [2015] EWHC 2602 (Fam), [2016] FLR forthcoming that such a declaration could not be granted by consent or default but only after a proper examination of the facts assessed in light of the applicable law.

Under sections 36 and 37 of the HFEA 2008, in order for a man to be treated as the father of a child, signed, written consent must be given by the man and the woman prior to the treatment. As highlighted by the President, where the consent forms had been mislaid the court could act on the available evidence to establish that the forms had been properly completed. The court could also correct mistakes on the form. In this instance the mother asserted that they had not completed consent forms. On the totality of the evidence the court found that they had completed the forms prior to treatment but that they had since been misplaced.

During the Legal Parenthood Audit which was initiated following the decision of AB v CD and the Z Fertility Clinic [2013] EWHC 1418, [2013] 2 FLR 1357, the medical files of these parents had not been included; although they should have been. An investigation would not begin at this fertility clinic to establish why this happened and to ensure that the anomaly with record keeping did not happen again. The clinic had now also installed Meditex which was a fertility database used across Europe that required consent forms to be scanned and retained.

The judge raised the wholly extraordinary litigation conduct of the clinic. The disclosure of medical records had been fraught and piecemeal despite the mother and F providing written authorisation for the release of documents. The clinic had failed to attend the first hearing and did not accept that it had failed to comply with the necessary procedure. A representative from the clinic only attended when an order requiring attendance was made with an attached penal notice.

Pauffley J commented on the clinic's bewildering behaviour, finding that it had added to the situation of enormous tension in circumstances which were already intensely fraught. The clinic's actions in failing to attempt to engage with the mother and F, to offer an apology of offer help, support or explanation had been a profoundly shocking state of affairs.

The medical director of the clinic accepted that the litigation conduct had been wholly unsatisfactory. He would offer a written and face-to-face apology and also answer any outstanding questions the parents had. The clinic would also meet the costs of the litigation.