Expert Fertility Lawyer at Osbornes Represents Parents after Fertility Clinic Mistake

Judgement was handed down today by Lord Justice Munby, president of the Family Division of The High Court in [2016] EWHC 2273 (Fam).

The case involved granting a declaration of parentage following mistakes made by a fertility clinic, operating under the Human Fertilisation and Embryology Act 2008.

The applicant, who was represented by a specialist fertility lawyer at Osbornes Law, received fertility treatment by Barts Health NHS Trust using donor sperm. The treatment resulted in the birth of a child in 2010.

At the time of the treatment and birth the applicant was in a civil partnership. The treatment was embarked upon by them as a couple and the intent was that both would be the legal parents of the child.

Both believed that they had signed the relevant forms, supplied to them by Barts and therefore had satisfied the legal requirements for them both to be recognised as the legal parents. As such both appear on the birth certificate.

Some years later the couple, who by this point were married, were contacted by Barts and given the devastating news that due to missing paperwork, the applicants partner was not the legal parent of their child and that she would need to adopt her child or apply for a parental order in order to become a legal parent.

On receiving this news they sought legal advice and the partner adopted their children.

They were subsequently informed of the proceedings before the President of the Family Division In re A and others (Legal Parenthood: Written Consents) [2015] EWHC 2602, which relates to similar mistakes made by clinics and instructed Anest Mathias to set aside the adoption and for a declaration of parentage.

Both applications were successfully granted.

In his judgement Lord Munby commented:

“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”.

Lord Munby also commented that the HFEA (Human Fertilisation and Embryology Authority) has identified no fewer than 90 cases where there are similar “anomalies”.

If your are considering fertility treatment and would like to know the legal requirements you will need to satisfy contact us and we will be happy to discuss with you.

The full judgement can be read here.

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