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Yet another fertility clinic paperwork error case

 

Readers may be aware of the ongoing litigation caused because fertility clinics had not properly ensured that their paperwork reflected the wishes and intentions of the adults involved that they would both wish to be legal parents to any child the clinic helped them conceive, very often this being just a failure to ensure that ticks were placed in each box or that the forms complied with what was required of them. This has led to a lot of human misery, where people who believed that they were a legal parent of a child were told, often years later, that they were not, and had to go through a court process to put that right. The last one I wrote about, the parents had had to adopt their own biological child and spoke in very moving terms about how awful that was.

This one is even worse, I think.

Here is how the President begins

Jefferies v BMI Healthcare Ltd (Human Fertilisation And Embryology) [2016] EWHC 2493 (Fam) (12 October 2016)

http://www.bailii.org/ew/cases/EWHC/Fam/2016/2493.html

 

 

 

  • When he was 19 years old, Clive Jefferies, then in the Royal Army Medical Corps, served his country in the Falklands War. On 8 June 1982 he was with the Welsh Guards on RFA Sir Galahad when it was bombed and destroyed by the Argentinian Air Force at Bluff Cove. On that day the fates smiled at him. Minutes before the attack he had been in a part of the ship where the first bomb exploded, killing many men. In the aftermath of the bombing he saved the life of a comrade who was in difficulties in the water. At his funeral, 32 years later, his commanding officer described his conduct on that fateful day as magnificent.
  • Returning to civvy street in 1987, Clive served the community as a nurse and midwife. He and his wife, the claimant Samantha Jefferies, met in 1999, moved in together in 2002 and married in 2007. Their ambition to have a family was assisted by the Sussex Downs Fertility Centre, a clinic operated by the First Interested Party, BMI Healthcare Limited, and regulated by the Second Interested Party, the Human Fertilisation and Embryology Authority (HFEA).
  • Neither of the first two cycles of IVF treatment was successful. On 1 April 2014 they attended the clinic to plan a third cycle of treatment, using three embryos, created from Samantha’s eggs and Clive’s sperm, which had been frozen on 11 August 2013. It was not to be. Fate struck. On 19 April 2014, suddenly and unexpectedly, Clive collapsed and died of a brain haemorrhage, while at home with Samantha. He was only 51 years old. He had previously been fit and healthy. It came as an appalling and terrible shock to Samantha. She was devastated.

 

With that history, the very last thing anyone would want is for there to be a row about how long the frozen embryos, the only chance for Samantha to have the baby fathered by Clive that they had both wanted, could be stored for and whether as a result of a flaw in paperwork for there to be a suggestion that they should be destroyed.

But that is what happened.

To their credit (and no doubt just reading those three paragraphs above would have made this an easy decision)  the clinic indicated that it did not want to take any active role in the proceedings and did not try to stand in the way of Samantha’s application for a declaration that despite flaws in the paperwork the embryos could continue to be stored, which she duly got.

These cases are causing misery, suffering, anxiety and a great deal of expense and Court time. It would be nice if the Government produced some legislation which provided for an amnesty and blanket declarations that where the fault lies with the paperwork and not the adults commissioning the fertility clinic, the wishes of those adults should prevail and avoid the need for Courts. It’s not an easy bit of legislation to draft, but I hope someone takes up that challenge on behalf of all of these parents who are going through turbulent and miserable times (and sometimes as here when life has already dealt that person such a challenging hand).

 

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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.

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.

Ticking ALL the boxes

 

Another one of the cases where due to failures in completing the paperwork with IVF treatment, one of the parents did not acquire the legal parental responsibility that they should have acquired, leading to painful and possibly expensive Court proceedings.  The failure in this particular case, leading to the parents to have to make an application in the High Court and get Deidre Fottrell QC  to represent them, is that the Clinic failed to make sure that the form when completed had shown a tick in the right box to indicate consent.

 

So, in this case, whilst a tick in a box may be quite continental, double-checking is a mum’s best friend.  I’m here all week, try the chicken.

The President identified these problems first in

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

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

 

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

 

The individual cases have kept rumbling on, and the High Court has been rather scathing from time to time of the mess that the Hospital management / legal department have been handling things.

For example here :-

 

https://suesspiciousminds.com/2016/01/24/striking-ineptitude-from-an-organisation/

 

This particular decision is Re J 2016

 

http://www.bailii.org/ew/cases/EWHC/Fam/2016/1330.html

 

Following IVF treatment provided by a clinic at Guy’s and St Thomas’ NHS Foundation Trust, which is and was regulated by the HFEA, Y gave birth to their child. X seeks a declaration pursuant to section 55A of the Family Law Act 1986 that he is, in accordance with section 36 of the 2008 Act, the legal parent of the child. Y is wholeheartedly supportive of X’s application. 

In this case, the failure was not a failure to use the right forms, or indeed to ensure that the parents had signed them, but here, that the parents had failed to put what the judgment calls a “v”  (but I think must be a tick) in the right box.

 

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 signed a Form WP. There is no problem with the Form PP. The problem arises because when Y signed the Form WP, which otherwise was properly completed, she omitted to place a v in the box in section 3 opposite the text “I consent to my partner (named in section two) being the legal parent of any child born from my treatment.” 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. This case is not unlike Case I where, as I said (para 21):
    1. “a v was inserted in the wrong place and, as it were, against the wrong piece of text. It was, as [counsel] submits, a simple undetected clerical error. In the circumstances, this obvious mistake can, in my judgment, be ‘corrected’ as a matter of construction, and without the need for rectification.”
  3. That there has been a mistake in this case in the completion of the Form WP is obvious, for the very purpose of completing the form is to give the consent indicated by the placing of a v in the relevant box. And it is plain what was meant. After all, Form WP is headed “Your consent to your partner being the legal parent.” What did Y think she was doing when she completed and signed the Form WP, if not to give her “consent to [her] partner being the legal parent”? The answer is obvious: by signing the Form WP she intended to and believed she was giving that consent. The only defect in the completed document is, as was the defect in Case I, a simple undetected clerical error. In the present case, as in Case I, this obvious mistake can, in my judgment, be ‘corrected’ as a matter of construction, and without the need for rectification.
  4. 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.
  5. A final matter
  6. On the same day as she signed the defective Form WP to which I have referred, Y, at the invitation of the clinic, also signed another Form WP to ‘correct’ an error which, she was told, had been made in the Form WP she had signed some years before in connection with earlier successful IVF treatment. The earlier Form WP had been wrongly dated. What ensued was quite remarkable, as the clinic committed itself to – blundered into – what, were these matters not so sensitive and grave, one might be tempted to call a comedy of errors. First, the suggested ‘error’ in the earlier Form WP was quite immaterial for, as I noted in In re A (para 78), “the precise date is not material; what is vital is that the form was signed … before the treatment.” Secondly, it is quite clear that a mistake in a Form WP (or for that matter a Form PP) cannot be corrected retrospectively after the treatment by the signing of a substitute form. Thirdly, precisely the same error (the omission of the v in the box in section 3) appears in each of the two Forms WP signed by Y on this occasion. Fourthly, one might have thought that the clinic, having, as it thought, detected an error in the earlier Form WP, would have been more than careful to ensure that each of the new Forms WP was correctly completed. Not a bit of it!
  7. The lack of understanding of the critically important legal framework with which it had to comply, and its seemingly lackadaisical failure to ensure proper completion of the new Forms WP in the face of what it believed to be its previous error, cast a sadly revealing light on the managerial and administrative failings of a clinic which one really might have thought would have been able to do better.
  8. Not for the first time I am left with the feeling that the medical staff in these clinics, who seem to have been given the responsible for ensuring that all the necessary medical and legal consent forms were properly completed, wholly failed to appreciate the critical need to ensure that the legal consent forms were properly, indeed meticulously, completed. I repeat what I said in In re A (para 111):
    1. “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.”

These administrative failures, which have been so characteristic a feature of every one of the cases I have had to consider, unhappily seem indicative of systemic failings both of management and of regulation across the sector. I can only hope that what all this litigation has revealed will by now have led to very significant improvements in understanding and practice.

 

Sadly, I suspect that it is only going to be when the Hospitals are hit with compensation claims or costs orders that things will improve.

 

The ISIS flag is apparently not a red flag

 

 

The President has published his judgment in one of the “are parents taking children to join up with ISIS?” cases

 

This one he has previously given judgment on, and ruled that at an interim stage the children should return home to parents with the parents wearing electronic tags. The mother, and two other adult relatives, were arrested when attempting to board a flight to Turkey with their four children.

https://suesspiciousminds.com/2015/07/30/syria-children-and-electronic-tagging/

 

This one is the fact finding hearing, as to what the mother’s motivation was.

Re X (Children) (No3) 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/2358.html

 

First, let me recount the mother’s position at previous hearings  (underlining mine for emphasis)

 

  1. The mother’s case
  2. An order made by Peter Jackson J on 22 April 2015 recorded the mother’s position as follows:

    “The mother disputes that the threshold criteria is crossed. She says that she was intending to travel to Turkey with the children for the purposes of a legitimate family holiday. She says that although she understands why the Local Authority has intervened, her wish is for the children to be returned to her care as quickly as possible or for them to be placed with a member of their family. Once the children have settled in their current placement, she would also like to have increased contact with them so that this takes place more than twice per week.”

  3. The mother disputed the local authority’s case as set out in the original Scott Schedule. Her position, as encapsulated in her response to the local authority’s allegation in paragraph 69 (paragraph 78 in the final Scott Schedule), was that “I am a practising Muslim. I do not regard myself as a radical fundamentalist and have no links or contacts with ISIS militants.”
  4. The finding of fact hearing was at that stage listed to start before me on 29 June 2015. Shortly before, the mother’s counsel, Mr Karl Rowley QC, circulated a position statement on her behalf. This set out her position in relation to the findings sought by the local authority as being that:

    “she does not seek to oppose the making of a finding that she was intending to attempt to enter Syria and live in territory governed by the Islamic State. That is not to say that she accepts the truth of the allegations but she does not wish to resist the making of findings on the balance of probability. In these circumstances she does not require cross examination of the local authority witnesses and does not wish to give evidence herself.”

  5. That radical shift in her position gave rise to a certain amount of discussion in court when the hearing began on 29 June 2015. It was left that she would prepare and file a statement. The statement was circulated the next day, 30 June 2015. It represented another radical shift in her position. She acknowledged that she had not been fully open with the court and professionals. Her case now, in short, was (judgment, para 13) that:

    “she had travelled to Turkey to meet up again with, and possibly marry, a man” – I shall refer to him as H – “she had met in this country collecting money for Syrian refugees and whom she understood to be a doctor in Turkey. She denied any intention of travelling to Syria and said “I do not agree with or support or favour anything ISIS do … and have no wish to be involved with ISIS in any way.””

  6. That remains her stance.

 

 

The Local Authority therefore had to seek findings  [again, underlining mine for emphasis]

 

  1. The local authority’s case
  2. As I have mentioned, the final version of the Scott Schedule is dated 17 October 2015 and now runs to 80 numbered paragraphs. Much of this sets out the “agreed context”. Paragraphs 13, 16-20, 22, 24-27, 32, 34b, 36-37, 39-44, 46-48, 51-53, 55, 57-76 and 78-80 contained the findings sought by the local authority which were disputed by the mother. In his final submissions, Mr Simon Crabtree on behalf of the local authority made clear that it no longer sought findings in relation to paragraphs 13-18.
  3. The local authority’s case has seven strands, which can be summarised as follows. In support of its overarching case, the local authority relies upon what it asserts were:

    i) The mother’s acquaintanceship with various individuals who, it is alleged, had travelled via Turkey to Syria in 2014 to take up arms with ISIS militants (paragraphs 19-27).

    ii) Lies the mother told the children’s schools on 27 February 2015 about the reasons for their forthcoming absence from school (paragraphs 28-33).

    iii) The fact that when stopped at the airport on 2 March 2015 the mother gave a false address (paragraphs 36-37).

    iv) The fact that the family’s luggage, when searched at the airport, was found to contain a number of suspect items (paragraphs 39-48); as it is put (paragraph 39), “a large number of items[1] not normally associated with any family holiday.”[2] It is asserted (paragraph 48) that “There is a striking similarity between the items contained in the … luggage and a list of items a known ISIS operative asked a British recruit to bring to Syria with him (and in connection with the same the said recruit was found guilty of possessing items of use to terrorists).”

    v) The fact that, when her house was searched, the items found included (paragraphs 76-77) “ISIS flags” and ‘to do’ lists, written by the mother, “which indicated that the writer of the list was moving and not intending to return.”

    vi) The fact that the mother lied to the police when being asked the purpose of their trip (paragraphs 49-55). She described (paragraph 51) “a multi-faceted trip involving a combination of an adventure holiday, culture, sight-seeing and relaxation.”[3]

    vii) The fact that the mother’s most recent account, as I have summarised it in paragraph 10 above, is a lie (paragraphs 56-65).

  4. This last part of the local authority’s case is further elaborated as follows:

    i) It is said that she met no man in the circumstances she described or at all (paragraph 62). She has (paragraph 63) “manifestly failed to provide any tangible evidence as to his existence and cannot even produce a photograph of him, any contact details or even one of the electronic communications which she claims passed between them.” Furthermore (paragraph 64), “In so far as that man is not a point of contact she had in Turkey for another reason, he is a figment of her imagination.”

    ii) As a separate point, it is said (paragraph 59) that, if her account was true, “it would reveal a mother who was unable to place her children’s needs before her own and that she was prepared to sacrifice her children’s stability, all they knew and their relationship with their father so that she could fulfil her own desire for a relationship with a man she hardly knew.” Furthermore (paragraph 60), if it was true “the extent of her intended folly is revealed by the fact that this man has literally disappeared without trace and left the mother unsupported at a time she needed it most.”

    iii) It is alleged (paragraph 65) that “She has in essence, weaved this account around the notes secreted in the children’s underwear to try to explain away the manifest inherent improbabilities in her first version of events at the eleventh hour and in the face of a growing realisation that no Judge would on the totality of the evidence believe that first account.”

  5. The local authority’s case is summarised as follows (paragraphs 66-74):

    “The reality is, the mother, her own mother and her brother had no intentions of remaining in Turkey.

    They intended to travel with the children from Istanbul to the Turkish border with Syria.

    Once they crossed the border into Syria, they intended to join up with ISIS militants and to supply them with items of use to the group’s combative activities.

    In all probability, they also intended to meet up with those … who had already travelled … to Syria via Turkey.

    In essence, the mother’s plan was to take these children to a war zone.

    As such, she knowingly and intended to place the children at risk of significant harm.

    The sole purpose and intention was … to cross the border into Syria and take up arms with ISIS militants and/or live in the Islamic caliphate ISIS claims to have established in the region for the foreseeable future.

    [Neither] she nor [her brother] had any intention of returning to [her house].

    That is why she suddenly found the money to buy the above electronic equipment which with one exception she financed on credit in February 2015 and why [her brother] paid for the trip using a £12,000.00 loan.”

  6. In conclusion, the local authority asserts (paragraphs 78-80) that:

    “In short, the mother is a radical fundamentalist with links and contacts with ISIS militants and those who seek to recruit others to their cause.

    Although she is arguably entitled to have whatever view she chooses, she is not however entitled to place her children at risk of significant harm or even death in furtherance of such a cause.

    In furtherance of her aims and objectives, [she] is and was prepared so to do and to lie with impunity to conceal her real intentions and motives.”

 

Bearing in mind the two underlined passages, you may be surprised to learn that the President ruled that the threshold was not met, and the children are now living with mother under no statutory orders at all.

 

I have to say that mum’s counsel did a blinding job, but it is still a surprising outcome, on my reading.

 

What about the ISIS flag though?

Thirdly, he submits that the local authority has failed to show that the material recovered from the mother’s home was indicative of her holding such views or being sympathetic to ISIS. The flag is one that has been adopted by ISIS, but it contains the shahada and seal of the Prophet Mohammed, both of which, he says, are important symbols which all Muslims share. The local authority, he correctly points out, has failed to adduce any evidence to disprove the proposition that the flag predated the al-Baghdadi Caliphate, and the mother’s case that she received it from a bookshop some 12 years ago as a gift has not been seriously challenged.

 

[See, I’m NOT a Neo-Nazi, I’m just a collector of flags designed by dentists…]

 

Although the President was not satisfied with mother’s account, the burden of proof was on the LA and he was not satisfied that they had made out their allegations

 

  1. The first point to be made is that, on her own admission, she is, even if she cavilled at the appropriateness of the label, a liar. The contrast between her original case, as I have summarised it in paragraph 7 above, and her revised case, set out in paragraph 10 above is obvious. If elements of her first story have been carried forward into the second, the two are nonetheless so fundamentally different that one or other must be essentially untrue. This is not mere suggestio falsi et suppressio veri; it is simply the telling of untruths, in plain terms lying. The notes to the schools were, on any basis, and wherever the ultimate truth in relation to the trip may lie, false to the mother’s knowledge. Mr Rowley characterises them (paragraph 66) as “ill-advised”. I cannot, with respect, agree. They involved the deliberate uttering of falsehoods. I am also satisfied, and find as a fact, that the mother did indeed give a false address when questioned by DS SH. And the allegations she made in the witness-box against the police were, in my judgment, and I so find, utterly groundless. On matters of fact I accept the evidence of each of the police officers. I cannot accept Mr Rowley’s submissions on the point (paragraph 68).
  2. As we have seen, the mother put herself forward at the hearing as now being completely open, honest and frank. Was she? I am not satisfied that she was. I am unable to accept what she is now saying merely because she is saying it. Some of it may be true. About much of it I am very suspicious. Some of it may well be, in some cases probably is, untrue. But the fact that I am not satisfied that the mother was telling the truth, the fact that I am very suspicious, does not mean that I find everything she said to be a lie. And, as I have already explained, the fact, to the extent it is a fact, that the mother has in the past told, and is still telling, lies, does not of itself mean that the local authority has proved its case.
  3. Be all that as it may, the plain fact is that the mother has not, in the past, been frank and honest either with the local authority, the guardian or the court and I am not satisfied that she is being now.

 

 

 

….

 

 

  1. So where, at the end of the day, am I left? There are four key matters, in my judgment, which preponderate when everything is weighed in the balance, as it must be:

    i) The mother is a proven liar. The mother has not, in the past, been frank and honest either with the local authority, the guardian or the court and I not satisfied that she is being now.

    ii) H (if that is his true name) is someone known to the mother and who has some connection with Turkey. The mother has wholly failed to persuade me, however, either that she met H in the circumstances she describes, or that their relationship was as she asserts, or that the role (if any) he was to play in Turkey was as she says. I am unable to accept her as being either a reliable or indeed a truthful witness. The mother, in my judgment, has not proved her case in relation to H.

    iii) The mother is an observant Muslim, but the local authority has been unable to prove either that the materials found at her home have the significance which was suggested or, more generally, that she is a radical or extremist.

    iv) The luggage contained a significant number of items which cry out for explanation in circumstances where the only explanation proffered by the mother is tied to her story about H which, as I have already explained, I am unable to accept.

  2. It is for the local authority to prove its case. The fact that the mother has failed to persuade me of the truth of her case, in particular in relation to H, does not, as I have already explained, absolve the local authority of the requirement that it prove its case. And, for reasons I have explained and which Mr Rowley appropriately relied on, I must be careful to remember the Lucas point when I come to consider the inferences I can properly draw from the fact, to the extent I have found as a fact, that the mother has lied. The fact, to the extent it is a fact, that the mother has in the past told, and is still telling, lies, does not of itself mean that the local authority has proved its case.
  3. There are, as I have noted, many matters on which I am suspicious, but suspicion is not enough, nor is surmise, speculation or assertion. At the end of the day the question is whether in relation to each discrete part of its case, the local authority has established on a balance of probabilities, applying that concept with common sense, the proposition for which it contends.
  4. Standing back from all the detail, and all the arguments, there are, at the end of the day, two factors of particular importance and which, unhappily, point in opposite directions. The mother, for her part, has not proved her case in relation to H, with the consequence that the only explanation she has proffered for the presence of various significant items in her luggage falls away. The local authority, for its part, has not proved either that the materials found at her home have the significance which was suggested or, more generally, that she is a radical or extremist. Weighing these and all the other matters I have referred to in the balance, I am left suspicious of what the mother was really up to but I am unable to conclude that the local authority has proved any part of its case as set out in paragraphs 66-73 and 78-80 of the Scott Schedule.

 

 

It is very difficult to successfully appeal a finding of fact  (the Court of Appeal vacillate from time to time as to whether you even CAN – because technically you appeal an order, not a judgment. In this case, the President did make an order – because he made NO order on the care proceedings or Wardship application, so the LA can appeal that).  The Court of Appeal are very mindful that on a finding of fact hearing the Judge has the advantage of hearing all of the evidence and seeing the demeanour of the witnesses, so are reluctant to interfere.

 

Having said that, I’d appeal the hell out of this one.  The order (which one presumes would have the effect of removing the electronic tags) is stayed until 18th December (oh, today), so we will soon find out whether an appeal has been lodged.

 

 

There’s a lot in the judgment about the contents of the luggage – the President kindly sets out the matters in a footnote.  As indicated above, the President was not satisfied with either the mother’s account (of either a holiday, or that her new boyfirend H had wanted these things) or that the LA had proved that these matters amounted to evidence that mother intended to join up with ISIS

 

Note 1 Including, it is alleged, 9 battery powered or other powered torches, 4 hand-wound torches, 3 solar charger units or power-packs, 4 emergency blankets, 3 new and 2 used rucksacks, 5 mobile phones in excess of the 3 mobile phones chargers carried by the group as a whole, unused computer equipment comprising 6 machines (including 3 identical Samsung devices) and 5 chargers, 3 unused sim cards, 5 Multi-tools devices and power converters etc, what is described as “a large quantity of substantially if not entirely new size ‘large’ and ‘extra-large’ outdoor clothing including coats, waterproof bottoms, breathable t-shirts, gloves and so on”, what is described as “a large amount of medication and panty-liners and tampons”, and “telephone numbers, e-mail addresses and passwords … found on pieces of paper secreted in the children’s underwear in one of the suitcases.”

Note 2 It is further said (paragraph 42) that “By contrast, the luggage did not contain outdoor clothing of a sort which might have been associated with an adventure or camping holiday for (amongst others) 4 children”, (paragraph 43) that “Although there was a large quantity of large and extra-large outdoor clothing there was bar one piece, an absence of such clothing in sizes that would fit any of the children and in particular, X1”, and (paragraph 44) that “Those and most of the other supposedly camping equipment was or appears to be completely new.”

 

We’ve gone on holiday by mistake

 

 

The outcome of the President’s case involving parents who were found, with their four children (aged between 20 months and 7 years old) around the border between Turkey and Syria, with the suspicion that they intended to cross the border and join up with the conflict going on in Syria.

 

I wrote about the initial decision here, in which the President set out a detailed routemap for recovering such children and bringing them back into the jurisdiction

https://suesspiciousminds.com/2015/05/21/isis-and-children-being-taken-to-syria/

 

At that time, there were competing explanations

 

(a) The parents had become radicalised and sought to join the conflict in Syria, potentially with ISIS and thus exposing the children to significant danger

or

(b) the parents explanation, that they were on holiday in Turkey as a family, with no sinister motives at all.

I note that the family had travelled to this holiday in Turkey by way of ferry from Dover, and then by public transport all the way, and did so without telling anyone.  Perhaps that’s to avoid detection and suspicion (option a) or perhaps the family really like buses or are afraid of flying, and have a strong sense of privacy (option b)

In any event, one would now think in retrospect that holidaying with a baby and 3 young children near the Syrian border was something of a mistake.

 

The next bit of the hearing is to look at what should happen next.

 

Re M (Children) No 2  2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/2933.html

 

The outcome of this hearing is that the children are all at home with their parents, under no orders at all, and the children’s passports have been returned.

 

Now, there’s always been a background residual concern that in the concerns about radicalisation and terrorism that a wholly innocent family could be caught up and subjected to what must be a terrifying process. So if that is what has happened here, that would be hugely newsworthy.

Equally, if option (a) is what actually happened, and the family have subsequently satisfied a Court that they are safe now, that would be hugely newsworthy.

 

Annoyingly, we can’t be 100% sure of either option. The Court do not set out what findings, if any, were made about the children’s time near the Syrian border in Turkey.  It may be that the Court was not asked by any party to make such a finding, or that the parents made concessions. We just don’t know.

The closest we come is this :-

 

At a further hearing on 2 June 2015 I directed the appointment of an independent social worker, Ms RT, to address matters which, understandably, the guardian did not feel qualified to address, in particular the question of whether the parents can care adequately for the children and prioritise their needs, having regard to their religious beliefs and in circumstances when their allegiance to those beliefs could compromise the safety of the children. Ms RT’s report is dated 16 August 2015. It is a detailed, impressive and compelling piece of work. Because the family’s identity is in the public domain, I do not propose to go through the report in any detail. It is enough for me to quote one brief passage:

It is my assessment that the intervention of the state has been a wakeup call for this couple … It is my assessment that their current beliefs do not pose a risk or will compromise the safety of their children … [They] are good parents and they are able to care for all their children. I see no reason whatsoever to remove the children from their care.”

The local authority and the guardian accept that conclusion and the analysis that underpins it. So do I.

 

It doesn’t feel ideal that we have to infer from one sentence fragment in a judgment  ‘that this has been a wakeup call for these parents’ that the more likely explanation for the children’s presence near the Syrian border was a malign one, not a benign one.

 

But, one could also read it that the ‘wake-up call’ is that the parents now realised that Syria was a dangerous part of the world and that their holiday to Turkey was ill-advised and they would never make that sort of foolish mistake again.

I know which reading I think is right, but the problem legally is that an allegation that the parents had planned to take their children into Syria is an allegation that needs to be proven – the parents don’t have to prove their innocence. In the absence of a clear finding, then it didn’t happen.

 

The order says

 

  1. Having regard to all that material, and all the other evidence before me, I had no hesitation in agreeing with the course proposed by the local authority, endorsed by the guardian and agreed by the parents. Accordingly, at the final hearing on 5 October 2015 I made an order in the following terms:

    “UPON the court receiving the independent assessment of RT dated 16 August 2015 and the position statements of the applicant local authority and children’s guardian, the contents of which recommend the discharge of the wardship orders currently in place on the basis that the identified risks are manageable under child in need plans and ongoing cooperation by the respondent parents with the applicant local authority

    AND UPON the parents agreeing in full to the terms of this order

    AND UPON the court indicating that a brief anonymised judgment will be handed down in writing on a date to be notified

    BY CONSENT IT IS ORDERED THAT:-

    1 The wardship orders first made in respect of the subject children on 4 May 2015 and renewed thereafter on 8 May 2015 are hereby discharged.

    2 The order dated 8 May 2015, requiring the applicant local authority to retain the parents’ and children’s passports to the order of this court is hereby discharged, whereupon the local authority has agreed to return the said passports to the parents.

    3 There be no order as to costs save for detailed public funding assessment of the respondents’ costs.”

  2. It follows that the proceedings are now at an end. I leave the final word to the parents, who say, and I accept, “wish to put the incident behind them and concentrate on being the best parents for their children, with the continued support of their family and friends.”

 

 

Again, that order sets out that there are identified risks, but doesn’t actually identify them. Are those ‘identified risks’ that the parents had planned to take the children into Syria but have now come to their senses, or that the parents are the worst holiday planners since Withnail?

 

"Are you the farmer?"

“Are you the farmer?”

 

Perhaps the people involved in the case know definitelively what happened, but given the importance of such cases nationally, particularly if these parents were exonerated from suspicion, it might have been rather important to actually spell it out.

 

[It may be that the fudge here is because unusually, the identity of the family is known, and they have to live within their local community, but the ambiguity isn’t helpful if they were actually exonerated and considered by a Court to have actually just taken a really badly located holiday.]

 

 

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.