The applicant, X, and the respondent mother, Y, had been in a same-sex relationship during which Y had received fertility treatment from an appropriate regulated clinic in order to bear a child using donor sperm. X actively involved herself in the fertility process, the birth and every part of the child’s upbringing on the understanding, shared with Y, that they had together completed the necessary documentation for her to be a legal parent to the child. At a later date the clinic informed the parties that the necessary paperwork had not been completed correctly and X did not in fact have such status. With the full support of Y, X sought a declaration pursuant to section 55A of the Family Law Act 1986 that she was, in accordance with sections 43 and 44 of the Human Fertilisation and Embryology Act 2008, the legal parent of the child. On consideration of the clinic’s records it was apparent that, at the appropriate time, Y had correctly completed and signed Form WP but no Form PP could be located. It did not appear that Form IC (the clinic’s internal consent form) had ever been completed. X did not suggest that Form PP had simply been lost but sought to rely on her own signature in Form WP, where she had erroneously signed a section intended to be completed by a representative for Y (if Y had been unable to sign the form herself), in which she identified herself as Y’s “partner”, as establishing her effective consent in accordance with section 44(1)(a) of the 2008 Act to be treated as the parent of any child resulting from the treatment provided to Y.
On the application—
Held, declaration made. The question was whether X had, within the meaning of sections 44(1)(a) and 44(2) of the 2008 Act, “given notice (in writing, signed by X) stating that X consented to X being treated as the parent of any child resulting from the treatment provided to Y”. Since it was clear that X had signed Form WP the question became whether the Form WP, signed by both X and Y, was effective not only as a notice given by Y in accordance with section 44(1)(b), which it was, but also as a notice given by X in accordance with section 44(1)(a). Quite obviously there had been a mistake, since whatever X had done she had not signed the Form WP as Y’s “representative” as Y had already signed the document herself. Looking at the matter from the point of view of X and Y in turn there could be no logical reason for X signing the Form WP document as she had, in the presence of a witness, if not to provide her consent to being treated as a parent. If the intention of X, Y and a witness from the clinic was not for X to be a parent she would not have signed the form at all. Accordingly, X was entitled to the declaration sought (paras 20, 22, 23, 24).
In re A (Legal Parenthood: Written Consents) [2016] 1 WLR 1325, applied.
Dorian Day (instructed by Jennings Solicitors, Milton Keynes) for the parent.
Marlene Cayoun (instructed by DAC Beachcroft LLP) for the clinic.