Paper for paper sake? Essential treatment consent forms

Several cases have been heard recently in relation to consent forms held by licenced clinics either not have been correctly completed or not fully completed which prevented a parent from being registered on the child’s birth certificate by the Registrar.

In one such case (Case K), treatment was provided by a clinic which was regulated by the Human Fertilisation and Embryology Authority. The treatment which led to the birth of two children was embarked upon and carried through jointly and with full knowledge by both the respondent mother, Y, and the applicant, her partner, X. From the outset of that treatment, it was the intention of both X and Y that X would be a legal parent of any child born. Each of them believed that they had signed the relevant forms as legally required, including Form IC, and, more generally, had done whatever was needed to ensure that they would both be parents.

Shortly after the birth of two children, X and Y attempted to register the children's births. The registrar refused to register X as their father, because X and Y could not produce the necessary written consents as required by the Handbook for Registration Officers, namely a Form WP and a Form PP. According to X and Y, they asked what they could do and were advised by the registrar that they could register the births showing Y's details as mother, with the father's details blank and then take legal advice as to obtaining a declaration of parentage. They said that they were told that, having obtained the declaration, they could then commence the process of re-registering the children. A re-registration in that way would produce a birth certificate which, in effect, proclaimed to anyone who looked at it that the child was or might be the result of assisted conception. X sought a declaration that he was, in accordance with ss.36 and 37 of the Human Fertilisation and Embryology Act 2008, the legal parent of two children.

In the course of those proceedings, the court raised the question as to whether the outcome desired by X and Y might be possible were an application to be made for judicial review. Accordingly, X issued an application for judicial review, seeking an order quashing the registration of the children's birth and an order requiring the registrar to register the birth afresh. With respect to the judicial review proceedings, X, the local authority and the Registrar General agreed the terms of an order.

The issues for determination were: (i) whether X was entitled to a declaration that he was the legal parent of the two children; and (ii) whether the consent order should be approved. The court ruled that there had neither been a Form WP nor a Form PP. However, both X and Y had signed a Form IC. In the circumstances, X was, in principle, entitled to the declaration he sought. The judicial review quashed the registration of birth and the Registrar had erred in law. The fact that the Registrar had been acting in accordance with the common understanding of what the handbook required was irrelevant, for on that point the handbook had itself been erroneous.

There were also 8 other cases heard together as they raised similar issues of the parents seeking declarations being the legal parents of children born following treatment provided by clinics regulated by the HFEA (Cases P, Q, R, S, T, U, W and X). In some cases, Forms WP and PP were signed but not dated, or forms were not fully completed or incorrectly dated, or there was no Form WP and the wrong parts of Form IC had been signed; amongst other form related issues. In each case, the court held that the declarations sought would be made, largely on the basis that it was still clear from the forms available as to what the intentions of the parties were.

It does however highlight the importance of completing all consent forms correctly and potentially taking advice at the time before completing them to save unnecessary problems at the registration of the child’s birth and having to apply for any declaration. Undergoing treatment is a very difficult and challenging time emotionally and physically and forms can sometimes be rushed or overlooked. They should not be!