In this case, the President of the Family Division deals with the thirty-fifth case where a fertility clinic had failed to complete the paperwork properly, meaning that people who thought they were a child’s legal parents were not, and had to go to Court at considerable stress and expense to put this right.
Re P, Q, R, S,T and U 2017
(This episode of Sesame Street is brought to you today by far too many letters)
The clinic in question sent letters out to the people who had conceived a child with flawed paperwork, following the realisation and reporting of the first such case Re A 2015
12.No-one before me seeks to justify, either in terms of their tone or in relation to their legal content, the letters sent out by Dr X on 15 March 2016. I also have concerns about the form of letter sent out on 28 April 2016. My concerns relate to (i) the focus on “clarifying” the parent’s “intention” and (ii) the indication that a statement “clarify[ing] what your intention was … may not give you legal certainty or resolve any potential problems with legal parenthood” (emphasis added). The point is very simple. Although “intention” is a necessary it is not a sufficient condition for acquiring parenthood. For, as I very recently observed, in Re the Human Fertilisation and Embryology Act 2008 (Case AK)  EWHC 1154 (Fam), para 20, it is the presence or absence of consent in writing – and, I should emphasise, such a consent given before the relevant treatment – which is ultimately determinative:
“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].”
Moreover, the word “may” was, it seems to me, insufficient in circumstances which surely demanded plain words rather than “Nods, and becks, and wreathed smiles.”
You do have to admire a Judge who, whilst admonishing someone for not using plain words, throws in a bit of Milton poetry containing the word “becks” which is not in wide circulation other than when referring to German lager. A beck, in this context is a gesture designed to attract attention (as if you were trying to catch the eye of a waiter) and is where we get the expression “At his beck and call”
The line before “Nods, and becks, and wreathed smiles” in the poem is “Quips and cranks, and wanton wiles” which I am going to claim as an accurate description of my site. If only I were launching it today, I’d have that as the tag-line.
“Cranks” in the Milton poem, means ‘clever or fanciful speech, whims, caprice’ and not what you thought I meant.
Oh, also “wreathed smiles” just means to have a big smile on your face – I had originally taken this to be a sinister or thin-lipped smile because of the negative connotation that wreath has now, but I guess it is more in the laurel wreath or Christmas wreath sense rather than a funeral wreath.
I am beginning to think that Milton is not the best source for plain speaking that everyone can readily understand…
As ever, I am ashamed that I did not have a proper classical education. If I had, then I too would scatter allusions to Homer and Milton around as though this was commonplace on the Clapham omnibus. The only Milton I was exposed to in my school days was on the last day of term when we were allowed to bring in Ker-Plunk by Milton Bradley Games. [Tin-Can Alley was the best thing for someone to bring in, because there was a rifle that shot light at toy tin cans, making them jump into the air. Awesome-sauce. I only really know Milton now from the ‘better to serve in Heaven than to reign in Hell’ line and that only from Neil Gaiman’s Sandman)
Anyway, what emerged in the case was a practice of patients being asked to sign declarations kept by the clinic that they MEANT to be joint parents, and thus avoiding the need to go to Court AND more importantly that the HFEA was wrongly passing on to clinics this suggestion.
The President was rightly not in the slightest bit keen on that, and stressed that this practice emerged AFTER Re A, which clearly demonstrated that Court orders were required to fix the mess caused by these clinics.
13.My real concern is that there appears to be an impression in some quarters that the kind of problems which have characterised all the many cases which I have had to deal with – Re the Human Fertilisation and Embryology Act 2008 (Case AK) was the thirty-fifth such case in which I have given judgment – can sometimes be resolved appropriately without obtaining an order of the court. This, in my judgment, is a highly problematic, indeed dangerous, view. I need briefly to explain why.
14.I venture to repeat at this point what I said in in In re A and others (Legal Parenthood: Written Consents)  EWHC 2602 (Fam),  1 WLR 1325, para 3:
“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 … 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?”
15.Legally the issue has the potential to arise – possibly, I emphasise, years or even decades in the future – in a variety of contexts. Family lawyers will of course be alert to the risk of future breakdown in the parental relationship, perhaps triggering private law proceedings under the Children Act 1989 in which the precise legal status of a parent may be challenged. But we need also to be aware that the existence or otherwise of the legal relationship of parent and child may become relevant in the future in relation to such matters as citizenship and nationality or – and possibly decades in the future when both parents are dead and therefore unable to give evidence – in relation to matters of succession and inheritance.
16.In what is now a long line of cases involving applications for parental orders in accordance with section 54 of the 2008 Act, Theis J has emphasised the importance of the need for such orders. There is, of course, a significant difference between the two types of case, because whereas a parental order has, as has been said, a “transformative” effect, and creates legal rights, the declaration granted in the present type of case is, as the word suggests, merely declaratory of existing legal rights. But that does not mean that there is no advantage to be gained by obtaining such a declaration. Far from it: a declaration of status granted by the High Court after appropriately stringent investigations, and after, as is invariably done, notice of the proceedings has been given both to the Attorney General and to the Secretary of State, has an effect in law and reality which far transcends any purely private transaction or agreement between the parents. To adopt, mutatis mutandis, some words used by Theis J in J v G  EWHC 1432 (Fam), para 28, quoting from the parental order reporter in that case:
“A parental order allows the reality for [the children] to be formalised now and bestows a sense of finality and completeness. It closes the door on official challenges to the intended parents’ authority and paves the way for the future without … further anxiety.”
Similarly, a declaration puts matters on a secure legal footing. It affords both child and parent lifelong security. It puts beyond future dispute, whether by public bodies or private individuals, the child’s legal relationship with the parent as being, indeed, his legal parent.
17.There is one final matter to which I need to draw attention. The witness statement filed on behalf of the HFEA by Nick Jones, its Director of Compliance and Information, included the following:
“Ms Walsh [she was the Senior Inspector who, with colleagues, undertook the inspection of the clinic in March 2016] has set out in her statement the facts and circumstances surrounding Care Manchester’s ill-advised decision to try resolving the parenthood issues by getting patients to sign a declaration. As Ms Walsh has said, we were not aware that the clinic intended doing this until after they had already sent out a number of those declarations to patients. Whilst we were not aware of Care Manchester’s intentions to use this declaration, following the judgment in the Alphabet case [In re A] we had been informed by a number of clinics that on legal advice, they were asking a small number of patients to complete declarations.
These clinics told us that some patients had, having been fully informed of the potential consequences and impact of the consent failings, said that they did not wish to go through any legal process in order to become the legal parents of their own children. Understandably, some patients were affronted at the suggestion that they were not legally the parents of their children. In such cases, a small number of clinics informed us that on legal advice, they had asked these patients to complete a declaration. These clinics and a legal advisor acting for several clinics, told us that the purpose of this declaration was to record the intentions of the couple at the time of their treatment, that is, a way of confirming that at the time that the couple had treatment, and notwithstanding any anomalies in their consent forms, they had intended to have treatment together and for both to be the legal parents of the children born from such treatment.
Clinics told us that this was a measure their legal advice suggested they put in place in order that in the future, should these couples separate, for example, and have to grapple with issues around the custody and care of their children, the clinics would have these signed declarations which could be relied on at that time, albeit with uncertainty as to the status of such a declaration. Whilst I expressed some concern about such an approach, and felt unease, I was assured the clinics did so on the basis of legal advice, and then only in those cases where patients had said that they did not wish to go through a court process in order to become the legal parents of their children. Having advised clinics to take their own legal advice, and now having done so, I felt we were not in a position to question that advice. Similarly, not having any method of communicating with this group of patients directly and also taking it on trust and good faith that the legal advice was sound and that clinics were acting in the interests of their patients, we felt we could not question the clinic’s approach and the decision these patients had taken to sign declarations.”
18.For reasons which by now will be apparent, Mr Jones was, as it seems to me, well justified in having those concerns and feeling that unease. But I am bound to say that it seems, and not merely with the priceless benefit of hindsight, unfortunate that the HFEA was not more questioning of what it understood was the advice being given at a time, I emphasise, after I had given judgment in In re A. I appreciate that the HFEA was not privy to the detail of any of that advice, but in the light of its understanding, as explained by Mr Jones, of what advice was being given, it might be thought that alarm bells should have been ringing and that the HFEA should have been more questioning, both privately and more publicly, as to the appropriateness and wisdom of the advice it understood was being given. I do not suggest that the HFEA should necessarily have commissioned legal advice itself on the point, but might it not have been better if it had circulated guidance to clinics, setting out what it understood to be happening, stressing that it was for individual clinics to obtain such legal advice as they might think appropriate, but saying that it did have concerns about the appropriateness of the advice which it understood certain clinics had received and perhaps briefly explaining why.