President of the Family Division gives guidance on sperm donation parentage cases in leading NGA case

Sir James Munby, the President of the High Court Family Division, has given important new guidance on how the family court should deal with cases concerning legal parenthood after sperm donation. It follows 34 High Court declarations of parentage made over the past two years where the legal status of parents through sperm donation has been jeopardised by paperwork errors at fertility clinics.

We are proud to have represented the five couples involved in this latest case of Re AD to AH (2017) (with counsel Elizabeth Isaacs QC and Adem Muzaffer) and to have invited the President to give guidance on how future cases could be resolved as efficiently and compassionately as possible.

What is the issue?

The UK’s Human Fertilisation and Embryology Act 2008 has clear rules designed to make the right people the legal parents of the children they conceive. Unmarried couples who conceive through sperm donation at UK fertility clinics are expected follow a specific process, managed by their clinic before conception, which involves counselling and the completion of certain forms establishing that both parents agree to legal parenthood.  As a result of that process, the birth mother’s partner (whether a non-biological father or a second female parent) is the child’s legal father/ other parent, and can be registered on his or her child’s birth certificate as such.  Legal parenthood of course has lifelong significance for both the parent and child, affecting issues as wide-ranging as financial responsibility, status in court proceedings, inheritance rights, nationality and pensions.

In 2013, the UK regulator the Human Fertilisation and Embryology Authority asked all UK fertility clinics to carry out an audit to check that the procedure was being properly followed. The audit uncovered widespread problems with clinic records, including numerous cases in which forms were missing or had been completed incorrectly. For the families affected, such errors created a question mark over whether they were in fact the legal parents of their children, understandably causing enormous distress and concern.

Previous cases on this issue

In the leading case of Re A (2015) (sometimes referred to as the ‘alphabet case’) the President of the Family Division made declarations of parentage in seven initial cases (cases A to G), using judicial powers to cure mistakes and deficiencies on the forms and making findings of fact in relation to missing forms which allowed the parents to rely on other documents and/or to establish that the forms were signed but had subsequently been lost.  The declarations of parentage made in that case secured the legal parenthood of each of the affected parents. The President, heavily critical of fertility clinics who had failed to follow procedures correctly, also urged fertility clinics and the HFEA to sharpen up their act to make sure mistakes did not continue to be made.

Since then 27 other parents have applied for declarations from the court concerning parentage, most (although not all) involving parents identified in the initial HFEA audit. However, it is thought that many other affected families still have not made court applications.  That is something which could cause issues for them long into the future, with potential issues over inheritance or disputes if the parents separate.

What does the new guidance mean?

We represented the parents in the latest five cases (AD to AH), and asked the President to give some guidance to help smooth the process for future affected parents. With 34 cases on which published judgments have already been given, it is clear that many of the cases fall into categories where it is now established law that the court can help. From a procedural perspective, there is also now an established protocol for how the cases are dealt with in the High Court.

In his latest judgment, handed down on Friday, the President has now set out the standard directions and final orders the court typically makes in such cases. This sets out a clear pathway for the evidence which needs to be filed with the court, and who needs to be notified, before the court can make a declaration of parentage. In many cases, where there are no new legal issues to be considered, we hope this will help cases to be streamlined and dealt with efficiently for all involved.

In some cases, the President has also said that a High Court judge may even decide that a declaration of parentage can be made on the basis of the papers filed, without the need for a full hearing. That will not be possible if forms are missing altogether, but may be appropriate in some straightforward cases where alternative forms of written consent can be relied on and where the parents wish to have things resolved in this way. Having had a number of clients who have felt daunted by the court process, we expect this to be welcome news which may encourage parents who have not already done so to apply to court to secure their position.

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