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In re D (a child appearing by her guardian ad litem) (Respondent)
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
In re D (a child appearing by her guardian ad litem) (Respondent)
THURSDAY 12 MAY 2005
The Appellate Committee comprised:
Lord Nicholls of Birkenhead
Lord Hope of Craighead
Lord Walker of Gestingthorpe
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
In re D (a child appearing by her guardian ad litem) (Respondent)
 UKHL 33LORD NICHOLLS OF BIRKENHEAD
1. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Walker of Gestingthorpe. I agree that for the reasons he gives this appeal should be dismissed.
2. I have had the advantage of reading the opinion of my noble and learned friend Lord Walker of Gestingthorpe. I agree with it. I would also dismiss the appeal.
3. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Walker of Gestingthorpe. For the reasons he gives, with which I agree, I would dismiss this appeal.LORD HOPE OF CRAIGHEAD
4. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Walker of Gestingthorpe. While I have in the end reached the same conclusion as he has done, the appeal seemed to me to raise some very real problems and I have found the decision far from easy. So I would like to explain in my own words why, with some hesitation, I too would dismiss the appeal.
5. There is no doubt that the widening of the frontiers of human existence by the use of assisted reproduction technologies has raised new questions about how the legal relationships that result from their use are to be identified. The law has always attached a special significance to a person's status. In The Ampthill Peerage  AC 547, 568G-H, Lord Wilberforce said:
6. Lord Wilberforce was describing there the status of legitimacy under the then current law in the context of a disputed peerage claim. But a similar view, with appropriate modifications, may be taken of the significance of the status of parentage in view of the legal consequences that flow from that relationship. The conferring of the status of father on a man who is not related to the child by blood or by marriage to the child's mother is a very serious matter, for the reasons which were mentioned by Hale LJ in the Court of Appeal: Re R (a child) (IVF: paternity of child)  Fam 129, 137, para 20. It affects not only the relationship between father and the child but also the relationships between the child and the whole of the father's family. It has other important consequences. The law of succession confers entitlement to participate in the father's estate, and there may be a dependent claim against the tortfeasor in the event of the father's death due to negligence. The question whether a man is the child's father has a special significance during the child's minority, but the law of succession may require it to be answered much later in life. In keeping with other family relationships, it will have a vital and long lasting part to play throughout the child's lifetime.
7. The first step which was taken to recognise that a relationship of parentage could be created outside the blood relationship as a result of assisted reproduction technology was in section 27 of the Family Law Reform Act 1987, following a recommendation of the Law Commission in its Report on Illegitimacy (1982) (Law Com No 118), paras 12.1-12.27. That section provided that a child born to a married woman who had been artificially inseminated with the semen of some person other than the other party to her marriage was to be treated in law as the child of the parties to that marriage unless it was proved to the satisfaction of the court that the other party to the marriage did not consent to the insemination. The Law Commission's recommendation had been endorsed by the Warnock Committee of Enquiry into Human Fertilisation and Embryology (1984) (Cmnd 9314), para 4.17. The Warnock Committee recommended that the same approach should be taken in relation to ovum donation and embryo transfer: paras 4.22- 4.25 and 6.8. But that was a step too far for the time being, so far as the framers of the 1987 Act were concerned. Section 27 was sufficiently controversial in itself. As Professor Michael Freeman observed in his comment on this section in his annotations to the 1987 Act in Current Law Statutes, it was inconsistent with the rest of the Act which was informed by a desire to recognise the true father as the lawful father of the child. What section 27 did was to recognise as the father of the child someone who, because the semen was not his, was not the child's genetic father. But it did so only in the case of married couples.
8. Section 27 of the Family Law Reform Act 1987 was extended to all the assisted reproduction techniques that were currently available by sections 27(1) and 28(2) of the Human Fertilisation and Embryology Act 1990. As these techniques include treatment by the use of a donated embryo or of donated eggs as a result of which the woman carrying the child is not the child's genetic mother it was first necessary to identify the person who is to be treated in these circumstances as the mother of the child. Section 27(1) of the 1990 Act achieves this in plain and simple language. The woman who is carrying or has carried a child as a result of the use of these techniques, and no other woman, is to be treated as the mother of the child. Turning then to the question who is to be treated as the father of the child, section 28(2) adopts the same formula as was used in section 27 of the 1987 Act. It addresses the situation where the woman was a party to a marriage at the time of the placing in her of the embryo or the sperm and eggs or of her insemination and the creation of the embryo was not brought about with the sperm of the other party to the marriage. It provides that, unless it is shown that he did not consent to this, the other party to the marriage is to be treated as the father of the child. Here too the test that the subsection lays down for establishing the relationship of fatherhood is a plain and simple one which leaves no room for doubt. The moment of time to which the question whether she was a party to a marriage is addressed is the time when the embryo or the sperm and eggs are placed in the woman. If she was a party to a marriage at that time, the marriage relationship that then existed is used to identify the person who will become the child's father when it is born.
9. So far so good. But what if the mother is not a party to a marriage but is in a relationship with a man at the time when the embryo or the sperm and eggs are placed in her? The simple rule which section 28(2) lays down cannot be applied in that case. Is the child born as a result of that treatment then to be fatherless, and is the other partner to that relationship to be denied the opportunity of becoming a father simply because he is not married to the person who will become the child's mother? That is the problem to which section 28(3) is addressed. This subsection is the result of an amendment which was introduced at third reading in the House of Lords by the Lord Chancellor, Lord Mackay of Clashfern, following his consideration of an amendment of a similar nature which had been proposed and discussed during the report stage. He gave this explanation for the amendment: Hansard (HL Debates) 20 March 1990, cols 209-210:
10. My noble and learned friend Lord Walker has set out sub-sections (1)-(4) of section 28 so that subsection (3) can be seen in its context, so I do not need to repeat this exercise. In summary what section 28(3) does is to deal with the situation where, because woman was not a party to a marriage when the embryo or the sperm and eggs were placed in her, no man is treated as the father of the child by virtue of section 28(2) and, because the creation of the embryo was not brought about with his own sperm, the man is not the child's genetic father. It assumes that the treatment has been sought by the man and the woman together, in the Lord Chancellor's words, as an "unmarried couple". It then uses the fact that they were being provided with the treatment services "together", rather than the mere fact of their relationship as an unmarried couple, to lay down the test that is to be applied to determine whether the man is to be treated as the father of the child. It does this by providing that the man shall be treated as the father of the child if the embryo or the sperm and eggs were placed in the woman, or she was artificially inseminated, "in the course of treatment services provided for her and a man together by a person to whom a licence applies."
11. This test has built into it two important requirements which were mentioned by the Lord Chancellor when he was introducing the amendment. The first requirement is that the treatment services which resulted in the placing of the embryo or the sperm and eggs in the woman, or her artificial insemination, were being provided to the man and the woman "together" as an unmarried couple. It is, of course, true that the use of these techniques does not require the participation by the man in any way in the treatment which is being given to the woman. In the physical sense, as the subsection refers to a man whose sperm was not used in the procedure, it is the woman only, and not the man, who is being treated. But the subsection assumes that this is in reality a joint enterprise - that the treatment is being sought by the woman and the man together because they both wish to receive the benefit of the treatment to bring a child into being jointly as their child. It is the infertility of the woman and the man as a couple that is being treated by the treatment that is being given to the woman. The second requirement is that these services were being provided by a person "to whom a licence applies". This identifies the context for which the test was devised. As the Lord Chancellor explained, it was having regard to the other provisions of the Bill that he was persuaded on reflection that the amendment should be inserted.
12. The other provisions to which he was referring include the conditions which the Act lays down for the granting of a licence for treatment under the Act. Section 13(2) provides, as one of the conditions of a licence, that such information shall be recorded as the Human Fertilisation and Embryology Authority may specify about, among other things -
Section 13(5) provides:
Section 13(6) provides:
13. How then is the test which section 28(3) lays down to be understood in the light of these requirements? First there is a question of timing. At what point of time is the test to be applied? The answer to this question is relatively straightforward. The language of the subsection tells us that the man shall be treated as the father if the embryo or the sperm and eggs "were placed" in the woman, or she "was" artificially inseminated, "in the course of" treatment services provided for her and the man together. These words make it plain that the point of time is the time when the embryo or the sperm and eggs were placed in the woman or she was artificially inseminated. As Hale LJ put in the Court of Appeal,  Fam 129, 138, para 21, the question whether this was done "in the course of treatment services provided for her and a man together" should be answered at that time and no other.
14. But the question of timing is not the only question that has to be answered. The treatment services that the woman was receiving at that time must have been "provided for her and a man together." As Wilson J observed in U v W (Attorney General Intervening)  2 FLR 282, 295B-C, the test is not whether the man consented either to be deemed in law to be the father of the prospective child or to become legally responsible for him. That would have been a simple and convenient test, which could have been met by appropriate record-keeping. But that is not what section 28(3) requires, no doubt because it was too simple. As the Lord Chancellor explained, he was most concerned that the proposal should not be seen as encouraging persons who were not married to each other to resort to these techniques. So the subsection concentrates instead on what would be expected of unmarried couples in a stable relationship who are seeking to bring a child into being jointly as their child. The test which it adopts is whether the relevant treatment services were provided for the woman and the man together. This raises an issue of fact. The question is how this crucial fact - crucial, as the question whether or not the relationship of fatherhood is established in law is wholly dependent upon it - is to be proved if there is a dispute about it. That is the issue in this appeal.
15. In many cases - indeed in most, as your Lordships were told that disputes such as that which has arisen in this case are very rare - there will be no difficulty. If the relationship is a stable one, it will be easy to demonstrate that there was a continuous course of conduct and the relationship which section 28(3) seeks to create will be acknowledged on all sides. The man will assume the responsibilities that come with fatherhood and the child will enjoy all the benefits that come with it. But if the relationship is unstable, the question of fact may be much more difficult to answer. How then is it to be approached? Does the answer to it depend on whether both the man and the woman thought at the relevant time that the treatment services were being provided for them together? Or does it depend on what is shown by the records of the person to whom the licence applies? Is the question, in other words, to be approached from the perspective of the provider of the treatment services or that of the recipients. In U v W (Attorney General Intervening)  2 FLR 282, 295C, Wilson J was approaching the matter from the perspective of the provider rather than that of the recipients of the treatment services when he said:
16. In the Court of Appeal Hale LJ said that it would be wrong to regard the words which were used by Wilson J as laying down a test to be applied in all cases, as to do this would be to add a gloss to the clear words of the subsection:  Fam 129, 138, para 23. She said that a simple approach, based on the clear words of the subsection was preferable. She made the same comment about the approach which Hedley J adopted in this case, which was that the provision of the services continues until either party or the clinic expressly withdraws from the understanding that the woman and the man are being treated together. The simple approach to which she was referring was that set out in the last sentence of para 22 of her opinion at p 138:
It seems to me, however, that the simple approach still leaves unanswered the question how it is to be determined, in the event of a dispute which may perhaps not emerge until many years after the event, whether the services were being provided for the woman and the man together at the time when the embryo or the sperm and eggs were placed in the mother or she was artificially inseminated.
17. The language of the subsection does not provide a clear answer to this question. But there are good reasons for thinking that it ought to be read and applied in a way that creates as much certainty as possible. Section 28(2) uses the fact that the woman was a party to a marriage at the relevant time as the test. This is consistent with the common law presumption pater est quem nuptiae demonstrant. Where there is no marriage some other test is needed that will stand the test of time and reduce to a minimum the opportunities for uncertainty. The recording by the provider of the information referred to in section 13(2) is likely to have that effect. The subsection refers to a "course of treatment services provided by a person to whom a licence applies." This assumes that the provider will have decided to provide a course of treatment services for the woman and the man together which will have a beginning and an end, that at the relevant time that course of treatment was still in progress and that the provider of the services will have kept records which will demonstrate that this is so. The records are likely to provide all that is needed as evidence to show that, so far as the provider was concerned, the woman and the man were being treated together at the relevant time.
18. On the other hand this approach places a high premium on regular and accurate record-keeping - on what, as Hedley J put it, is spelled out in the consent form of the mother, which the man joins in by acknowledging the legal consequences to him of the treatment which she is to receive - and on keeping the records up to date throughout the course of the treatment which, as this case shows, may extend over several years. It places the onus on the man to inform the provider if and as soon as he wishes to withdraw from the arrangement. Yet, as he will not be participating in the treatment in any way, he may be quite unaware of the steps that the provider is taking as the course proceeds. He need not be present during any part of it. So the date that has been fixed for any stage in the treatment of the woman may be unknown to him, especially if the relationship is an unstable one. In the present case the man wishes to be the father of the child and is willing to accept the responsibilities that will flow from this. But it is easy to envisage cases where the man was no longer willing to be associated with the treatment but had not realised, because he was not being kept fully informed, that it was still continuing.
19. The lack of clear guidance in section 28(3) on such an important issue is regrettable. But in the end I think that, despite Miss Macur QC's persuasive argument to the contrary, the solution to the problem was best expressed by Mr McFarlane QC when he said that the question whether the treatment services were being provided for the woman and the man together at the relevant time simply raises a question of fact which must be determined by the judge in the light of all the evidence. The perspective of the clients is therefore to be treated as part of the relevant evidence. So too is the perspective of the provider of the services, as demonstrated by the records which the provider has kept as required by the licensing authority. Neither has any priority over the other in terms of the statute. Each is as vulnerable to human error, deceit, mistake or misunderstanding as the other. To elevate one over the other when the statute does not clearly require this would be to create an unnecessary gloss. It could result in a decision which was imposed on the man by default and which, when looked at in the light of all the evidence, was quite wrong. When he was moving the amendment the Lord Chancellor referred, as one of the benefits of the scheme, to the fact that there would be fewer fatherless children: Hansard (HL Debates) 20 March 1990, col 210. But the statute does not say that the avoidance of fatherlessness is an end in itself. The child's welfare comes first: see section 13(5). There is great force in Hale LJ's observation at p 139, para 25 that the question whether the treatment should be continued ought to be reviewed in the child's best interests if and as soon as it is known that the man is unwilling to continue to be a party to it. I find further support here for the view that the preferable approach is to examine all the evidence in order to see whether at the relevant date the statutory test was satisfied.
20. For these reasons, which amplify those of the Court of Appeal in the light of the fuller argument which was addressed to us, and for the further reasons given by Lord Walker, I have concluded that the appeal should be dismissed.LORD WALKER OF GESTINGTHORPE
Section 28 (3) of the 1990 Act
21. Your Lordships' House has on two recent occasions had to consider the scheme and scope of the Human Fertilisation and Embryology Act 1990 ("the Act"). The background to the Act can be found in the report, published in 1984, of the Warnock Committee (Report of the Committee of Inquiry into Human Fertilisation and Embryology, Cmnd 9314) and the White Paper, published in 1987, which largely accepted the Warnock Committee's recommendations (Human Fertilisation and Embryology: a Framework for Legislation, Cm 259). These matters were fully considered by the House in R (Quintavalle) v Secretary of State for Health  2 AC 687 and Quintavalle (on behalf of Comment on Reproductive Ethics) v Human Fertilisation and Embryology Authority  UKHL 28. It is unnecessary to cover that ground again. This appeal is concerned with a group of sections in the Act (sections 27-30) dealing with the status (in terms of legal parentage) of a child born as a result of fertility treatment licensed under the Act.
22. The statutory provision of central importance is section 28 (3), but it needs to be set in its context.
Subsections (2) and (3) of section 27 and subsections (5) to (9) of section 28 contain various qualifications and ancillary provisions which are not material on the facts of this appeal, and are not suggested to affect the construction of section 28 (3). Section 29 spells out the legal effect of sections 27 and 28, and section 30 provides for parental orders in favour of gamete donors in certain circumstances.