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Revoking adoption and IVF mistakes (again)

 

 

 

The President of the Family Division has been at the forefront of the litigation about IVF clinics that managed to make a mess of the paperwork such that people who fully intended to both be legal parents of a child conceived in that way have ended up not being legal parents and having to go through cost and emotional turmoil. Purely due to failures in using the correct forms. It is a trivial mistake, but one (as you can see from this piece) has huge emotional consequences and cost for those involved.

Case O (Human Fertilisation and Embryology Act 2008) [2016] EWHC 2273 (Fam) (13 September 2016)

http://www.bailii.org/ew/cases/EWHC/Fam/2016/2273.html

 

The President notes that there are approximately 90 cases of such anomalies, where due to failure with forms and paperwork parents who intended in good faith to become legal parents of the child they were conceiving with help of the clinic did not actually become the legal parent.

 

In this case, when the parents were told of the mistake, the child had not yet been born.

 

 

 

 

17.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.”

 

The legal advice they got at the time (which was probably right at the time – or at least what most lawyers would have said was the only answer) , before Theis J found the alternative route) was that there would have to be an adoption.

 

 

18.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.

 

 

19.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.”

20.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.”

21.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.””

 

Having learned of the newer approach of the Family Courts, to fix the deficiencies in the process and make declarations of parentage which would achieve the legal status as the child’s parents without adoption, the couple sought advice and made an application to revoke the adoption order.

 

As readers of the blog will know, that’s a very rare application, and less than a handful of such cases have ever succeeded. Most reported attempts have failed.

 

 

22.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.”

23.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.”

24.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.

25.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.

 

 

26.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.

 

 

27.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:

 

 

 

  1. i) Under the inherent jurisdiction, the High Court can, in an appropriate case, revoke an adoption order. In relation to this jurisdictional issue I unhesitatingly prefer the view shared by Bodey J in Re W (Inherent Jurisdiction: Permission Application: Revocation and Adoption Order) [2013] EWHC 1957 (Fam), [2013] 2 FLR 1609, para 6, and Pauffley J in PK v Mr and Mrs K [2015] EWHC 2316 (Fam), para 4, to the contrary view of Parker J in Re PW (Adoption) [2013] 1 FLR 96, para 1.

 

  1. ii) The effect of revoking an adoption order is to restore the status quo ante: see Re W (Adoption Order: Set Aside and Leave to Oppose) [2010] EWCA Civ 1535, [2011] 1 FLR 2153, paras 11-12.

 

iii) However, “The law sets a very high bar against any challenge to an adoption order. An adoption order once lawfully and properly made can be set aside “only in highly exceptional and very particular circumstances””: Re C (Adoption Proceedings: Change of Circumstances) [2013] EWCA Civ 431, [2013] 2 FLR 1393, para 44, quoting Webster v Norfolk County Council and the Children (by their Children’s Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378, para 149. As Pauffley J said in PK v Mr and Mrs K [2015] EWHC 2316 (Fam), para 14, “public policy considerations ordinarily militate against revoking properly made adoption orders and rightly so.”

 

  1. iv) An adoption order regularly made, that is, an adoption order made in circumstances where there was no procedural irregularity, no breach of natural justice and no fraud, cannot be set aside either on the ground of mere mistake (In re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239) or even if there has been a miscarriage of justice (Webster v Norfolk County Council and the Children (by their Children’s Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378).

 

  1. v) The fact that the circumstances are highly exceptional does not of itself justify revoking an adoption order. After all, one would hope that the kind of miscarriage of justice exemplified by Webster v Norfolk County Council and the Children (by their Children’s Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378, is highly exceptional, yet the attempt to have the adoption order set aside in that case failed.

 

 

 

28.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.”

29.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.

 

 

30.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.

 

 

31.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.

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Yet more IVF misery due to clinic mistakes with paperwork

 

You write one up, then another one appears.

 

Again the President, again Miss Deidre Fottrell QC, again failure by an IVF clinic to get the paperwork right in an IVF process and meaning that the parents need to go to the High Court to get their legal status as parents sorted out.

 

And again, a hospital trust being pretty unsympathetic and feeble in how they picked up the pieces. (“Oh parents, there are some pieces. Mind how you go. No, we’re not picking them up.”   Actually, that sarky summary seems to be an improvement on the bedside manner employed in this particular case, where a doctor rang them up to tell them that one of them was not the child’s legal parent, and didn’t offer them an appointment or even explain it in more detail in a letter. Cheers for that.)

 

Re N 2016

 

http://www.bailii.org/ew/cases/EWHC/Fam/2016/1329.html

 

Here’s the mistake itself

 

The issue

  1. Adopting the terminology I have used in previous cases, the problem in the present case is very shortly stated. Before the treatment began, X signed a Form PP. Y did not sign a Form WP. Both of them signed a Form IC, though it was not in precisely the same form as the Forms IC I have had to consider in previous cases. The central issue is this: Did Y give her consent to X becoming the father of her child? In my judgment the answer is clear: she did.
  2. I can take the matter quite shortly. The only material difference between the Form IC used in this case and the other Forms IC which I have previously had to consider, is that X’s declaration was in these terms:
    1. “I am not married to [name] but I acknowledge that she and I are being treated together and that I will take appropriate action to become the legal father of any resulting child.”

Below this there was the following Note:

“NOTE: The centre is not required to obtain a partner’s acknowledgement in order to make the treatment lawful, but … it is advisable in the interests of establishing the legal parenthood of the child.”

  1. Whatever might otherwise be the effect of the words “I will take appropriate action …” there is, on the facts of this case, no problem, because X subsequently signed the Form PP.
  2. In these circumstances, the application of the principles set out in the earlier authorities is simple and the answer is clear: Y gave the relevant consent and X is entitled to the declaration he seeks.

 

And here is what the President said about the emotional strain on the parents and the clinic’s approach

 

 final matter

  1. I have drawn attention in my previous judgments to the devastating impact on parents of being told by their clinic that something has gone ‘wrong’ in relation to the necessary consents (see In re A, para 69, Case G, para 31, and Case I, para 28). I commented (Case G, para 32) that these were situations calling for “empathy, understanding, humanity, compassion and, dare one say it, common decency, never mind sincere and unqualified apology.” In both Case G and Case I, I was very critical of those clinic’s behaviour in this respect. Here again, unhappily, the clinic’s response fell far short of what was required.
  2. In the present case, X and Y were similarly affected as had been the parents in other cases. X, who received the initial telephone call from the clinic, says he “cannot describe the shock I felt.” “It is impossible to describe what it feels like to be told so baldly over the telephone that the child you believed you were the legal parent of was not your legal child.” He was initially unable to contact Y. When she got home “I was beside myself; I was not crying but I was distracted, shaking and unable to function at all.” The impact on him was graphically illustrated by the fact that he was unable to remember either the name or the telephone number of the doctor who had telephoned him. Y remembers the “shocking state” X was in when she got home. In her statement, she voiced her anger that “a doctor should think it reasonable to ring someone up and give them such terrible news over the phone and then not back up the news with an offer of an appointment to discuss the issues in person, an offer of counselling and not to confirm the advice in writing.” By the time there was further communication, about a week later, X and Y had lost all confidence in the clinic and decided to seek their own legal advice.
  3. The contrast with other events, before and after, is poignant and telling. X recalls how “I quite literally burst into tears when I found out [Y] was pregnant.” And the intense emotion, the enormous joy, the immense happiness with which X and Y reacted in court as I announced my decision was the most powerful and moving indication which it is possible to imagine of all they had had to go through.
  4. Unhappily, they did not receive from the clinic the support they were entitled to look for. The clinic declined to meet X and Y, as they wished. The clinic was tardy in confirming, though eventually it did, its unqualified assurance that it would pay their reasonable costs. Even worse, and despite earlier correspondence in which they had sought disclosure, the solicitors X and Y instructed had to make an application to the court before the clinic finally disclosed the relevant records.
  5. In F v M and the Herts and Essex Fertility Centre [2015] EWHC 3601 (Fam), Pauffley J was, as it seems to me with every justification, unsparingly critical of the behaviour of the clinic in that case after their mistakes had been discovered. Referring to guidance issued by the HFEA following the judgment of Cobb J in AB v CD and the Z Fertility Clinic [2013] EWHC 1418 (Fam), [2013] 2 FLR 1357, Pauffley J observed (para 14):
    1. “The underlying message was clear. Clinics should have been supporting and assisting parents. They have an obligation to be open and transparent – most particularly with those whose parenthood was potentially disturbed by administrative incompetence. The parents were (and are) the individuals in most need of advice and assistance; they are entitled to and should have been treated with respect and proper concern.”

I repeat what I said I have said previously (Case G, para 33), I agree with every word of that. Pauffley J went on to criticise in particular the tardiness of the clinic in that case in disclosing the relevant patient files to the parents.

  1. What is required in all these cases, I emphasise, is immediate, full and frank disclosure by the clinic of all the relevant files as soon as they are requested by the parents. Legal professional privilege apart, which can hardly apply to the original medical files, there can be absolutely no justification for refusing such a request.
  2. I have now had the experience of watching too many parents in these cases sitting in court, as they wait, daring to hope for a happy outcome. The strain on them is immense. If the process is delayed because of obstruction on the part of the clinic, that is shocking. The original administrative incompetence in these cases is bad enough; to have it aggravated by subsequent delay, prevarication or obstruction on the part of the clinic merely adds insult to injury. Ms Fottrell, on instructions, tells me that her clients were shocked and upset by the clinic’s conduct and experienced great distress and anguish in the weeks and months following the initial telephone call. I am not surprised. The only mitigation is that when the clinic came to file its evidence, the “person responsible” who made the statement adopted a more seemly and appropriate stance, expressing “sincere apologies” for the clinic’s error and for its effect on X and Y.

 

 

And hooray, this time there were consequences

 

The clinic must pay X and Y’s reasonable costs in full: both the costs of the solicitors they originally instructed and who obtained the order for disclosure of the documents, and the costs of the solicitors they subsequently instructed to bring their substantive claim to court.

Striking ineptitude from an organisation.

 

This is a HFEA case, along the same lines as the one decided by the President discussed here:-

 

https://suesspiciousminds.com/2015/09/11/ivf-and-declarations-of-paternity-major-cock-ups-in-ivf-clinics/

 

I.e that because a clinic involved in artificial insemination (IVF) failed to use proper consent forms and keep proper records, the parents ended up in Court to resolve who had parental responsibility.  You may recall from that case, that the Human Fertilisation and Embryology Authority had carried out an audit and found that about HALF of the clinics who do this work were using the wrong forms and losing records.  There was always going to be more litigation about this cock-up.

This individual case, however, did not (as the President’s 8 cases did) involve parents who were all on the same page about their intentions and who should have parental responsibility but parents who were already litigating issues about the children. So this was an added complication to already difficult proceedings.

 

In this particular case, Pauffley J was rightly very critical of the clinic involved, Herts and Essex Fertility Centre.

 

  • In the course of my separate Children Act judgment delivered on 30 November, I said I would be able to find unequivocally that F is entitled to the declaration he seeks. He is the father of C. This judgment explains my reasons for that preliminary indication. It also comments upon the actions and omissions of the Herts and Essex Fertility Centre (HEFC) for identical reasons to those described by the President in his judgment. It is both alarming and shocking that, once more, a court is confronted with an instance of such striking ineptitude from an organisation which is subject to statutory regulation and monitored by a statutory regulator namely the Human Fertilisation and Embryology Authority (HFEA).

We’ll come onto it in detail later, but because the Clinic refused to comply with Court orders, the Court had to make the orders again, but with a penal notice attached. It is pretty unusual for a Court to need to do that against an organisation (as opposed to say a lay person)

 

 

F v M and Others 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/3601.html

 

When the parties contacted the clinic to ask for the records, and even when Court orders were sent, the Clinic was unresponsive – my reading is that the requests were processed by someone who went into “someone is trying to sue us for something, give them nothing” mode.  (which is not even the way it actually works with a personal injury or negligence claim, where disclosure is part of a pre-action protocol). As it turned out, the Clinic’s resistance to assist and comply with Court orders not only made the litigation more protracted and costly, but they ended up having to offer to pay the costs anyway.

Also, seeing the lawyers involved in the case in the headnote, boy did this clinic mess with the wrong people…

 

 

  • The second noteworthy matter surrounds HEFC’s litigation conduct which has been wholly extraordinary. Notwithstanding both parents’ written authorisations and ready agreement to the disclosure of material from HEFC, the process has been fraught and, at best, piecemeal. There would seem to have been a fundamental misunderstanding of the purpose for which disclosure of records was sought.
  • In early May, only 20 or so pages of medical records were made available. Had there been full and proper disclosure at that stage, the eventual shape of the litigation could have been very different. Again and again, letters were written by M’s and F’s Solicitors. In late May, HEFC was strongly recommended to attend the first court hearing. In response, the Clinic’s finance manager stated that it was not accepted that “HFEC had failed to comply with the necessary procedures;” and the suggestion of attending the hearing was declined.
  • On 29 May an order was made joining HEFC as a party and directing it to file any evidence upon which it intended to rely. Two months later, on 28 July, in the absence of any engagement by the Clinic, F’s Solicitors wrote a lengthy and informative letter, drawing attention to the 7 cases being heard by the President, seeking agreement to fund the father’s legal costs, reiterating the disclosure requests and giving information about the next court hearing.
  • On 10 August, the Clinic’s finance manager emailed F’s Solicitors saying, “to confirm, we will not intervene nor will we be attending the hearing.”
  • On 14 August, I made an order directing HEFC to disclose all and any medical notes relating to M and F’s treatment as well as all correspondence (including emails and other communications) with M and F. I also directed the Clinic to file and serve detailed statements from the Person Responsible and the Medical Director. The HEFC was directed to attend the next hearing on 22 October.
  • On 4 September two statements were provided, one from the Person Responsible, the other from the Medical Director. The covering email from the finance manager indicated that the Clinic would not be in attendance at the next hearing as “this is a Family Law matter.”
  • I cannot begin to understand how such a misapprehension arose as to the proper role for the Clinic in these proceedings particularly given the unambiguous correspondence from the parties’ Solicitors supported as it was by the text of several court orders.
  • On 20 October (about a month after F’s Solicitors had drawn the Clinic’s attention to the President’s HFEA 2008 judgment), an email was sent to the Clinic’s finance manager reminding her that HEFC was required to attend the hearing on 22 October. The response was that the Clinic would not be attending.
  • It was therefore necessary, on 22 October, to make an order with a penal notice attached so as to ensure the Clinic’s compliance with directions. I also listed a hearing to determine the Clinic’s liability for the parties’ reasonable costs. Once again, an order was made that the Clinic should attend the next hearing.
  • On 4 November, Russell-Cooke LLP was instructed by the Clinic. Seemingly that was the point at which the Clinic appreciated the need for assistance from lawyers. As Mr Powell explained during his final submissions, the Clinic’s first point of contact (when faced with requests for information) had been the insurers. Apparently, though this is difficult to understand given the explicit nature of incoming correspondence, the Clinic had not appreciated the gravity of the situation.
  • There was then inter-solicitor correspondence resulting in further disclosure on 10 November. For the first time, critically important laboratory records were revealed showing affirmative ticks by the WP and PP boxes on forms. Two further and important tranches of documents were disclosed on 19 and 20 November just a very few days before the final hearing listed on 24 November.
  • The detail of the Clinic’s litigation conduct is both important and profoundly disappointing set against the framework of the dispute between these parents. The levels of conflict have remained at the highest level throughout. M and F are bitter, resentful and mistrustful of each other. M’s position, in all probability, became ever more entrenched as the result of the Clinic’s lack of engagement and failure to disclose early.
  • The Clinic’s bewildering behaviour has undoubtedly added to a situation of enormous tension in circumstances which were already intensely fraught. It would have assisted greatly if the Clinic had responded to requests for information in a timely and cooperative fashion. Seldom is it necessary to make orders backed with a penal notice against organisations whose aims include a desire to serve the public and to a high standard. It was altogether necessary here.
  • It should also be observed that even by the very end of the hearing, there had been no attempt on the part of the Clinic to engage directly with either M or F. Beyond what had been said formally within the proceedings there has been no correspondence and no apology on the part of anyone at HEFC. That is quite obviously a profoundly shocking state of affairs. Neither parent has had any offer of help, support or explanation for the situation in which they have been entangled. They have been left completely on their own with no ability to understand the reasons for what went so badly wrong.
  • On behalf of the Clinic, Mr Powell accepts that no words would do justice to the emotional distress caused to M, F and their family members. He did not seek to defend the Clinic’s actions; and accepts the criticisms levelled. The Medical Director’s unreserved apology, said Mr Powell, although late is nonetheless candid. The Medical Director accepts that the Clinic’s litigation conduct was wholly unsatisfactory and has prolonged the parents’ distress. He intends to write directly to them apologising on behalf of HEFC and would welcome the opportunity to meet each parent to provide an apology in person and answer their questions.
  • Mr Powell indicates that lessons have been learned and contrition on behalf of the Clinic is genuine. It is a good indication of the HEFC’s remorse that it has undertaken to pay the parties’ costs as they relate to the declaration of parentage proceedings.

 

 

On the fundamental issue, whether the proper consents had been recorded about the treatment and who was to be considered as legal parents for any child produced by the treatment, the Judge had this to say:-

 

 

  • Without descending into more of the detail, I am entirely satisfied of the following – (1) that M and F did sign WP and PP forms prior to the commencement of treatment; (2) that the forms as well as the internal consent forms were signed at the treatment information appointment (as the checklist confirms); (3) that the WP and PP forms have subsequently been mislaid or lost; (4) that M and F received appropriate counselling prior to treatment in relation to the consequences of using donor sperm; (5) that notwithstanding the lost forms the clinic acted within the terms of its licence; and accordingly (6) F is C’s father.
  • Turning from the specifics relating to parentage, there are a number of associated matters which require comment. The first is as to the bemusing and seemingly unsatisfactory response of HEFC to the Legal Parenthood Audit initiated at the request of the HFEA on 10 February 2014 following the judgment of Cobb J AB v CD and the Z Fertility Clinic [2013] EWHC 1418 (Fam).
  • On 1 September 2014, the HFEA wrote to all clinics to inform them of the outcome of the Audit – namely that “nearly half of all clinics that have responded reported anomalies with their legal parenthood consent.” The letter expressly informed clinics – “if you have any doubt about the validity of legal parenthood you should seek your own legal advice. You should also inform the affected patients and their partners.”
  • The underlying message was clear. Clinics should have been supporting and assisting parents. They have an obligation to be open and transparent – most particularly with those whose parenthood was potentially disturbed by administrative incompetence. The parents were (and are) the individuals in most need of advice and assistance; they are entitled to and should have been treated with respect and proper concern. In this instance, M and F were left completely on their own without assistance of any kind from HEFC.
  • The medical files for these parents should have been (but were not) included in the Legal Parenthood Audit which was to be completed over a period of three months. The omission has been reported to the HFEA. It is perplexing to say the least that this couple’s files were missed when account is taken of the chronology of the mother’s telephone calls (from late March / early April 2015) seeking information about the consent forms as well as initial ‘phone calls followed then by a formal letter from M’s then Solicitors requiring information.
  • At the instigation of the Chief Inspector of the HFEA an investigation is about to begin to discover the reasons for the error. There will be a ‘Root Cause Analysis’ undertaken by an independent consultancy for UK regulated organisations so as to identify what went wrong. The investigation will also seek to discover whether the HEFC complied with the HFEA’s request to sample or review files. Importantly, it will examine how the WP and PP forms were mislaid or lost. It is said on behalf of HEFC that the investigation will be thorough and comprehensive.
  • The findings of the independent consultancy will be reported to the HFEA so that decisions may be made about what action should be taken. The medical director of HEFC assures the court that he is committed to “getting to the bottom of what happened, to taking all remedial action and to working with the HFEA to ensure that the circumstances which gave rise to this case can never happen again.”
  • The HEFC has taken other steps including the installation of ‘Meditex,’ a new Fertility Database which will require the scanning in of Forms WP and PP enabling immediate retention and availability for inspection. The database is comprehensive, internationally recognised and used by other leading clinics across Europe.

 

It really does seem likely that there will be many more of these cases. I’d suggest that hospitals stop putting Court orders from family Courts in the “Go Screw Yourselves”* section of the in-trays.

 

(*That wasn’t actually intended to be an artificial insemination joke when I first wrote it, but hey, I’m not one to snub serendipity when it comes a’knocking)

 

IVF and declarations of paternity – major cock-ups in IVF clinics

 

I’m often a bit snippy about the President’s decisions in Human Fertilisation and Embryology Act cases, but I can’t fault him in this one.

 

A and Others (Human Fertilisation and Embryology Act 2008)  2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/2602.html

 

This case involved eight cases where couples had made use of very well known and well regarded reputable fertility clinics within England, but as a result of mistakes in the clinics processes, found that not all of them had legal status with their own children and had to apply to Court for a Declaration of Parentage to resolve those issues.

The advocates involved were a roll-call of some of the best minds around, and one can see why.

This judgment relates to a number of cases where much joy but also, sadly, much misery has been caused by the medical brilliance, unhappily allied with the administrative incompetence, of various fertility clinics. The cases I have before me are, there is every reason to fear, only the small tip of a much larger problem.

 

The question of who, in law, is or are the parent(s) of a child born as a result of treatment carried out under this legislation – the issue which confronts me here – is dealt with in Part 2, sections 33-47, of the 2008 Act. It is, as a moment’s reflection will make obvious, a question of the most fundamental gravity and importance. What, after all, to any child, to any parent, never mind to future generations and indeed to society at large, can be more important, emotionally, psychologically, socially and legally, than the answer to the question: Who is my parent? Is this my child?

 

Why has this arisen?

 

  1. The decision of Cobb J on 24 May 2013 in AB v CD and the Z Fertility Clinic [2013] EWHC 1418 (Fam), [2013] 2 FLR 1357, brought to public attention and, more particularly, to the attention of the HFEA, the lamentable shortcomings in a clinic identified only as clinic Z which, in the judge’s view (para 74), had fallen “far short” of its obligations and which (para 88) had failed to comply with the conditions of the licence granted to it by the HFEA.
  2. I must return in due course to explain in more detail the relevant statutory requirements. For the moment I merely indicate two fundamental prerequisites to the acquisition of parenthood by the partner of a woman receiving such treatment. First, consents must be given in writing before the treatment, both by the woman and by her partner. The forms required for this in accordance with directions given by the HFEA are Form WP, to be completed by the woman, and Form PP, to be completed by her partner. Secondly, both the woman and her partner must be given adequate information and offered counselling.
  3. Following Cobb J’s judgment, the HFEA required all 109 licensed clinics to carry out an audit of their records. The alarming outcome was the discovery that no fewer than 51 clinics (46%) had discovered “anomalies” in their records: WP or PP forms absent from the records; WP or PP forms being completed or dated after the treatment had begun; incorrectly completed WP or PP forms (for example, forms not signed, not fully completed, completed by the wrong person or with missing pages); and absence of evidence of any offer of counselling. At the time of the hearing, I did not know how many cases there might be in all, how many families are affected and how many children there are whose parentage may be in issue – so far as I was aware the HFEA had never disclosed the full numbers – but it was clear (see below) that some clinics reported anomalies in more than one case. Since the hearing, the HFEA in a letter dated 1 September 2015 has indicated that there are a further 75 cases.
  4. As it happens, we are best informed about the St Bartholomew’s Hospital Centre for Reproductive Medicine, operated by Barts Health NHS Trust, which I shall refer to as Barts. It was the subject of a judgment given by Theis J on 13 February 2015: X v Y (St Bartholomew’s Hospital Centre for Reproductive Medicine Intervening) [2015] EWFC 13. Moreover, it has been commendably open and frank about its failings (others seem to have been more coy), sharing its findings with the wider medical community as long ago as September 2014 when, at the instigation of the HFEA, they were published on the HFEA’s clinicfocus e-newsletter. Of 184 patients who had undertaken fertility treatment with donor sperm since April 2009, when the 2008 Act was implemented, there were 13 cases (7%) where legal parenthood was in issue.
  5. The picture thus revealed, and I am referring not just to Barts, is alarming and shocking. This is, for very good reason, a medical sector which is subject to detailed statutory regulation and the oversight of a statutory regulator – the HFEA. The lamentable shortcomings in one clinic identified by Cobb J, which now have to be considered in the light of the deeply troubling picture revealed by the HFEA audit and by the facts of the cases before me, are, or should be, matters of great public concern. The picture revealed is one of what I do not shrink from describing as widespread incompetence across the sector on a scale which must raise questions as to the adequacy if not of the HFEA’s regulation then of the extent of its regulatory powers. That the incompetence to which I refer is, as I have already indicated, administrative rather than medical is only slight consolation, given the profound implications of the parenthood which in far too many cases has been thrown into doubt. This is a matter I shall return to at the end of this judgment.

 

All of these people put themselves in the hands of, as the President says, brilliant doctors, who brought them the gift of children, but also had put themselves in the hands of an administrative system upon which the entire notion of whether they were both legally that child’s parents. That administrative system did not always work.

As can be seen in this case, the wrong forms were sometimes used, forms were misplaced or lost.

For both of the couple to be legal parents, it is vital that before the treatment commences that the mother to be signs a form saying that she agrees and consents for the man to be the father in law of any child created, and that the father-to-be signs a form saying that he agrees and consents to be the father in law of any such child. That’s an essential component of the Act.  If there is no such written consent, then the man would not be in law the father.   [I’ve used mother and father for simplicity here – of course it is possible for two women to become parents under such an arrangement]

 

  1. The issues
  2. As will become apparent in due course, the cases before me raise three general issues of principle which it is convenient to address at this point.
  3. The first (which arises in Cases A, B, E, F and H) is whether it is permissible to prove by parol evidence that a Form WP or Form PP which cannot be found was in fact executed in a manner complying with Part 2 of the 2008 Act and whether, if that is permissible, and the finding is made, the fact that the form cannot be found prevents it being a valid consent, as involving a breach by the clinic of its record-keeping obligations. This was the issue decided by Theis J in X v Y (St Bartholomew’s Hospital Centre for Reproductive Medicine Intervening) [2015] EWFC 13. In the light of her decision, with which, as I have said, I respectfully agree, the only question in such a case is a question of fact: Allowing for the fact that it can no longer be found, is it established on the evidence that there was a Form WP or Form PP, as the case may be, which was properly completed and signed before the treatment began?
  4. The second issue (which arises in Cases D and F) is the extent to which errors in a completed Form WP or Form PP can be ‘corrected’, either as a matter of construction or by way of rectification. A similar point (which arises in Cases E and F) is the extent to which errors in a completed Form IC can be ‘corrected’ This is a novel point in this context which, in my judgment, falls to be decided in accordance with long-established and well-recognised principles.
  5. I start with rectification. As a matter of general principle, I can see no reason at all why a Form WP or Form PP should be said to be, of its nature, a document which cannot be rectified. The fact that it is a document required by statute to be in a particular form (that is, “in writing” and “signed by the person giving it”) is, in my judgment, neither here nor there: compare the many cases where rectification has been decreed of conveyancing or trust documents similarly required by various provisions of the Law of Property Act 1925 to be in a particular form. Nor does it matter, in my judgment, that a Form WP or Form PP is used as part of, and, indeed, in order to comply with the requirements of, a statutory scheme. There is, for example, nothing in the language of any of the relevant provisions of Part 2 of the 2008 Act to suggest that rectification is impermissible. Contrast, for example, the well established rule that the Articles of Association of a company will not be rectified because rectification would be inconsistent with the provisions of the Companies Acts: see Scott v Frank F Scott (London) Ltd [1940] Ch 794. So, in my judgment, if the criteria for rectification are otherwise established, a Form WP or a Form PP can be rectified.
  6. Quite apart from the equitable doctrine of rectification, the court can, as a matter of construction, ‘correct’ a mistake if (I put the matter generally, without any detailed exegesis) the mistake is obvious on the face of the document and it is plain what was meant. The reported examples of this are legion and stretch back over the centuries. They include cases of clear misnomer. Again, there is, in my judgment, no possible objection to the court taking this course in relation to a Form WP or a Form PP.
  7. The third issue (which arises in Cases A, C, D, E, F and H) is whether a properly completed Form IC is capable of operating as consent for the purposes of sections 37 and 44 of the 2008 Act

 

If you are wondering what ‘parol evidence’ is, then you are not alone. I wondered that too. Of course, if you all knew, then I was the only person wondering it, and now I feel bad.

 

Parol refers to verbal expressions or words. Verbal evidence, such as the testimony of a witness at trial.

In the context of contracts, deeds, wills, or other writings, parol evidence refers to extraneous evidence such as an oral agreement (a parol contract), or even a written agreement, that is not included in the relevant written document. The parol evidence rule is a principle that preserves the integrity of written documents or agreements by prohibiting the parties from attempting to alter the meaning of the written document through the use of prior and contemporaneous oral or written declarations that are not referenced in the document.  [In short, any other supplementary evidence that would allow a Court to decide that yes, both ‘parents’ did agree that each would be a legal parent to that child]

I am pleased to say that the President did conclude that in each of these cases, there was parol evidence that the couples had all gone into this arrangement fully consenting to the legal parentage of the child, and thus the deficiencies in the forms or the missing status of the forms could be remedied and the Declaration of Parentage made.

 

I conclude, therefore, that, in principle:

i) The court can act on parol evidence to establish that a Form WP or a Form PP which cannot be found was in fact properly completed and signed before the treatment began;

ii) The court can ‘correct’ mistakes in a Form WP or a Form PP either by rectification, where the requirements for that remedy are satisfied, or, where the mistake is obvious on the face of the document, by a process of construction without the need for rectification.

iii) A Form IC, if it is in the form of the Barts Form IC or the MFS Form IC as I have described them above, will, if properly completed and signed before the treatment began, meet the statutory requirements without the need for a Form WP or a Form PP.[2]

iv) It follows from this that the court has the same powers to ‘correct’ a Form IC as it would have to ‘correct’ a Form WP or a Form PP.

 

That, I’m sure came as a relief to the parents involved. I won’t dwell on the nuts and bolts of how the President reached that conclusion, but focus more on the human angle

 

 

  1. The evidence I listened to in these cases was some of the most powerful, the most moving and the most emotionally challenging I have ever heard as a judge. It told of the enormous joy, both for the woman and her partner, to discover, in some cases after a hitherto unsuccessful journey lasting years, that she was pregnant, having taken a pregnancy test that they had scarcely dared to hope might be positive; the immense joy of living through the pregnancy of what both thought of from the outset as “their” child; the intense joy when “their” child was born. In contrast, it told of the devastating emotions – the worry, the confusion, the anger, the misery, the uncertainty, the anguish, sometimes the utter despair – they felt when told that something was wrong about the parental consent forms, that, after all they had been through, all the joy and happiness, W’s partner might not legally be the parent. In one case, where the journey to a successful birth had taken the parents twelve years of what was described as grief and pain, it is hardly surprising to learn that they were “devastated and heartbroken” when told by the clinic that the mother’s partner was not the child’s parent. In another case, the comment was, “it is simply not fair.” The words may be understated, but the raw emotion is apparent. Another called the situation “terrible.” Another spoke of being “extremely distressed”, unable to sleep and “constantly worrying about the future.”
  2. It is testament to the enormous dignity they displayed, even while the case was going on and they did not know what the outcome was going to be, that these parents, despite their justified criticism of how they felt let down by professional people they had trusted and who they had thought, wrongly as it turned out, they could rely upon, did not give voice to greater anger and more strident criticism. It was, if they will permit me to say so, a humbling experience to watch them and hear them give evidence.
  3. A number of common themes emerge from the evidence. In each case, having regard to the evidence before me, both written and oral, I find as a fact that:i) The treatment which led to the birth of the child was embarked upon and carried through jointly and with full knowledge by both the woman (W) and her partner.

    ii) From the outset of that treatment, it was the intention of both W and her partner that her partner would be a legal parent of the child. Each was aware that this was a matter which, legally, required the signing by each of them of consent forms. Each of them believed that they had signed the relevant forms as legally required and, more generally, had done whatever was needed to ensure that they would both be parents.

    iii) From the moment when the pregnancy was confirmed, both W and her partner believed that her partner was the other parent of the child. That remained their belief when the child was born.

    iv) W and her partner, believing that they were entitled to, and acting in complete good faith, registered the birth of their child, as they believed the child to be, showing both of them on the birth certificate as the child’s parents, as they believed themselves to be.

    v) The first they knew that anything was or might be ‘wrong’ was when they were subsequently written to by the clinic.

    vi) The application to the court is wholeheartedly supported by the applicant’s partner or, as the case may be, ex-partner.

    vii) They do not see adoption as being a remotely acceptable remedy. The reasons for this will be obvious to anyone familiar with a number of recent authorities which there is no need for me to refer to. As it was put in the witness box by more than one of these parents, as they thought of themselves, why should I be expected to adopt my own child?

  4. There are two other matters which emerged clearly in the evidence. There is no suggestion that any consent given was not fully informed consent. Nor is there any suggestion of any failure or omission by any of the clinics in relation to the provision of information or counselling.

 

 

 

The President did consider that it was appropriate to name the clinics involved.

 

I can see no reason at all why the clinics should not be identified. So far as concerns IVF Hammersmith Limited, readers of this judgment will appreciate that the case has not yet been heard and that there are as yet no findings. Barts, MFS and BH, on the other hand, each stands exposed as guilty of serious shortcomings, indeed, at least in the case of Barts and MFS, repeated and systemic failings. Why, in the circumstances, should their shortcomings be shielded from public scrutiny or, indeed, public criticism? I can think of no compelling reason. On the contrary, if public condemnation serves to minimise the risk that any future parent is exposed to what these parents have had to suffer, then it is a price well worth paying. I have not identified any of their staff, nor any of the treating clinicians. There is no need, and it would be unfair, to do so, for the failings are systemic and, ultimately, the responsibility of senior management and the HFEA.

 

 

This was not, of course, a public enquiry into the failings of the clinics, or the regulatory body, but the President made some remarks aimed at preventing such problems in the future (though it seems that these 8 cases are likely to be followed by many, many more – at least another 65, that are known to have gone wrong).   The President here has thwarted my usual practice of putting the quotes from the judgment in bold, as he emboldens particular words for emphasis…

 

  1. An afterword
  2. It is not for me to provide guidance as to how these serious and systemic failings could better be prevented. That, after all, is the function of the HFEA and, within each clinic, the responsibility of the individual who is the “person responsible” within the meaning of section 17(1) of the 1990 Act. There are, however, three observations which I am driven to make in the light of the very detailed forensic examination to which these matters have been subjected during the hearing.
  3. The first relates to the material published from time to time by the HFEA in the aftermath of Cobb J’s judgment in AB v CD. I have in mind letters sent out by the Chief Executive of the HFEA dated 10 February 2014 and 1 September 2014, a letter sent out by the Chair of the HFEA dated 3 February 2015 and the April 2015 version of the HFEA’s Consent forms: a guide for clinic staff. While a careful reader who studies these documents with a critical and attentive mind ought not to be left in much doubt about the need to make sure that both Form WP and Form PP are completed properly, and at the right time, I cannot help thinking that it might be better if this FUNDAMENTALLY IMPORTANT requirement, and the potentially DIRE LEGAL CONSEQUENCES of non-compliance, were expressed in more emphatic, indeed stark, language and, in addition, highlighted by appropriate typography. By appropriate typography I mean the use of bold or italic type, CAPITAL letters, or a COMBINATION of all three; the use, for example, of red ink; and the flagging up of key points by the use of ‘warning’ or ‘alert’ symbols. To be fair, some effort has been made to highlight particular points, but I suggest that the process could go further.
  4. The second relates to the imperative need for all clinics to comply, meticulously and all times, with the HFEA’s guidance and directions, including, in particular, in relation to the use of Form WP and Form PP.
  5. The final observation relates to practice within clinics. A completed Form WP and a completed Form PP surely needs to be checked by one person (probably a member of the clinical team) and then re-checked by another person, entirely separate from the clinical team, whose sole function is to go through the document in minute detail and to draw attention to even the slightest non-compliance with the requirements – all this, of course, before the treatment starts. I trust that the parties will not be offended by the comparison, but the approach to checking that the Form WP and the Form PP have been fully and properly completed is surely just as important, and demands just as much care, attention and rigour, as would be demanded in the case of a legal document such as a contract for the sale of land, a conveyance or a will – indeed, in the context of parenthood, even more important.