Am I legally a father? An update in the field of fertility treatment

Last year Harrison Drury explored an IVF case where a paperwork error meant a father had not been legally recognised. Janine Hutson from the family department at Harrison Drury examines an update in the field of fertility treatment and legal parentage.

Following on from our blog last year about a case where a father was not recognised as a legal parent following IVF treatment, new case law has identified that in similar circumstances a final hearing may not always be necessary.

What happened in the case?

The couple, who at the time were unmarried, embarked on a lengthy IVF process which resulted in the birth of their child many years later. In the normal way, the birth was registered and both parents were named on the birth certificate.

However, following an audit of the IVF treating clinic it became apparent that it had failed to complete the necessary paperwork to grant the father parentage. Instead, the parents had signed internal consent forms on numerous occasions, but they failed to meet the legal requirements.

Under the Human Fertilisation and Embryology Act 2008, before unmarried couples undertake IVF, they must sign “WP” and “PP” forms confirming that they agree to each other being the child’s legal parent. While the birth mother will automatically be regarded as the child’s parent, it is essential for the father that the legal forms are completed to meet the agreed fatherhood conditions.

To remedy the problem an application was made to court for a Declaration of Parentage to regularise the legal position of the father. The judge concluded from the outset and throughout, it was the couple’s joint intention, and that of the clinic, that the father would be a legal parent of the child. Each parent was aware that this was a matter which, legally, required the signing by each of them consent forms. Each of them believed that they had signed the relevant forms as legally required and had done whatever was needed to ensure that they would both be parents. Despite the lack of correctly signed forms, the judge made an order declaring the father to be the parent of the child.

This was a case undertaken by John Osborne, head of the family department at Harrison Drury, the law report can be found through reference B v B and Leeds Teaching Hospitals NHS Trust [2017] EWHC 599 (Fam).

What are the new developments?

The new developments come after a judgment in cases similar to B v B has suggested that a decision in these sensitive and emotive cases could be made without the need for a final oral hearing.

President of the family division, Sir James Munby, confirmed that while a Declaration of Parentage cannot be granted by consent alone, there may be a way forward which simplifies and speeds up the process in undisputed cases.

He also acknowledged that however straightforward the case, both parties must be entitled to a hearing and entitled to give oral evidence if they want to.

However, an oral hearing may not be needed if:

1. The application is based entirely on written documents from the clinic’s file;
2. The facts are the subject of a previous judgement;
3. There is no dispute;
4. There has been no intervention by the Human Fertilisation and Embryology Authority, the Attorney General or the Secretary of State for health; and
5. Both parties wish to proceed without an oral hearing.

It is also suggested that standard, draft orders could be used by professionals acting in these cases going forward. A standard directions order would allow the matter to proceed directly to the final hearing or, where the above criteria have been met, the judge could make a decision based on the papers alone, without a court hearing.

The aim of these orders is to enable these cases to be dealt with in an efficient, stress-free way. If a final hearing can be avoided the negative effect on the families will be less, benefiting both the children and parents involved.

It is important that the status of a parent is not lost through paperwork errors and inconsistencies. A Declaration of Parentage will provide the feeling of security to a family unit.

What should I do if I am undergoing IVF?

These cases show that the courts are committed to finding an efficient and streamlined approach to an issue that should never have arisen.

By ensuring that all paperwork is completed correctly throughout the IVF process the need for legal intervention can be avoided. If you have any concerns or queries, it’s important to seek specialist legal support either before, during or after the process.

Harrison Drury have a specialist team of family law experts offering advice on issues surrounding IVF and other family law matters. For more information please contact our Family team on 01772 258321.