In re D (a child appearing by her guardian ad litem) (Respondent)
23. The crucial words in section 28 (3) are "in the course of treatment services provided for [a woman who bears a child] and a man together." Treatment services are defined in section 2 (1) of the Act as:
The rather compressed wording of section 28 (3) gives rise to two associated problems.
24. First, infertility treatment is often a protracted and stressful process, especially for an unmarried couple. As this case illustrates, the process may involve preliminary tests and diagnosis, social inquiries, counselling, and the granting of formal approval and consents before any positive treatment is given. The demand for treatment services under the National Health Service exceeds supply, and the couple may encounter waiting lists at any stage. The actual treatment may start with a trial of one technique (in this case, artificial insemination by donor) and go on to another technique (IVF treatment) if the first proves unsuccessful. Even then the skill of the medical staff and the patience and perseverance of the couple may end in disappointment. In this case about six and a half years elapsed between the mother's original referral to a fertility clinic and her becoming pregnant as a result of IVF using embryos created with donor sperm. The two forms of acknowledgment or consent signed by her then partner were completed about thirty months and nine months respectively before she became pregnant. That is the sort of time-scale against which the expression "treatment services provided for [a woman who bears a child] and a man together" may have to be construed.
25. The second problem is understanding what the expression means in a case where the woman eventually becomes pregnant as a result of IVF with embryos created with donor sperm. In a case of that sort the infertile male partner does not receive any positive treatment of any kind (although he may have undergone tests, and received counselling, at an earlier stage). This problem would arise regardless of the duration of the treatment, but protracted treatment may exacerbate it, since the feelings and perceptions of the two partners, and the degree to which the man actively supports the woman may change in the course of treatment (although your Lordships were told that the complete breakdown of a relationship during fertility treatment is in practice quite rare, despite the stresses which the treatment must very often impose).
26. In some cases the facts will be such that the requirement of "treatment services . . . together" must be satisfied on any reasonable construction of section 28 (3). When an unmarried cohabiting couple first decide to seek help at a fertility treatment clinic, they will normally attend the clinic together and both will cooperate in tests to establish the cause of the infertility, in the same way as a married couple would. Sometimes it will be found that each of them has a medical condition contributing to the problem (as was the case here, although the man's condition was much worse and beyond any possibility of treatment). In such a case there is no difficulty (especially if the male partner's sperm is eventually used for artificial insemination or IVF) in recognising that the partners are receiving treatment together, or as a couple (that was the phrase used by Wilson J in U v W (Attorney-General intervening)  2 FLR 282, 295, although the Court of Appeal in this case regarded it,  Fam 129, 138, para 23, as an unnecessary gloss). But where there is IVF treatment using embryos created with donor sperm, the infertile male partner cannot easily be described as participating in the treatment. If he is to be regarded as participating he must do more than simply consent to his partner's treatment. His conduct must be such as to make his partner's treatment something of a joint enterprise (an expression used by Bracewell J in Re B (Parentage)  2 FLR 15, 21, although in that case the ex-partner was the biological father). In practice, fertility clinics try to reduce the risk of disputes by the use of a written form of acknowledgment, but this case shows that their procedures have not always been effective and (in common, as I understand it, with the rest of your Lordships) I consider that more reliable safeguards are needed in a matter directly affecting a child's legal parentage. I shall return to this point below.
27. Not all the facts of this case have been clearly established. That does not imply any criticism of the first-instance judge. It is a reflection of the rather convoluted way in which this litigation has developed, and it may be helpful to start with an outline of the litigation. The mother, D, gave birth to a daughter, R, on 5 February 2000. D's former partner, B, promptly made an application in the County Court for contact and parental responsibility orders. The Official Solicitor was asked to act for R and his representative interviewed both B and D. There was a two-day hearing early in September 2000 before His Honour Judge Hedley. The judge heard oral evidence from B and D. There were strong conflicts of evidence which the judge had to resolve. But he did not have to consider section 28 (3) because it was common ground before him that B was R's father and that the Court had jurisdiction to make the Orders which B was asking for. The judge did not have before him any medical records from the fertility clinic.
28. In a reserved judgment delivered on 20 September 2000 the judge was very critical of D's evidence. He found her a wholly unreliable witness whose evidence was uncorroborated in circumstances (such as alleged complaints to the police) where corroboration would be expected. She had admitted misleading the clinic and she had admitted lying to the judge. The judge rejected any allegation of improper conduct against B. Because of the concession the judge did not make any detailed findings about the course of the treatment at the clinic, but he did (without having the medical records before him) find that B
(The successful second round of IVF treatment came after the end of the relationship, as explained below).
29. His Honour Judge Hedley made an order permitting B to have indirect contact with R, and adjourned the application for a parental responsibility order. D applied to the Court of Appeal for permission to appeal. The Court of Appeal (Dame Elizabeth Butler-Sloss P, Hale and Arden LLJ) refused permission but expressed concern about the concession on jurisdiction. The matter came back to Hedley J (as he had by then become) on the application for a parental responsibility order and he directed that the issue of jurisdiction should be heard as a preliminary issue. At the hearing of that issue he had the medical records but did not (it seems) hear any further oral evidence. On 22 February 2002 he decided the preliminary issue in favour of B and made a declaration of paternity. His decision is reported as B and D v R  2 FLR 843. On 19 February 2003 the Court of Appeal (Sir Andrew Morritt V-C, Hale and Dyson LJJ) allowed D's appeal in a judgment of the Court delivered by Hale LJ, reported as Re R (a child) (IVF: paternity of child)  Fam 129.
30. The roundabout course of the litigation has left some loose ends in the findings of fact. But a helpful chronology prepared by Miss Macur QC and Mr James Gatenby (for D), supported by the medical records, establishes the main landmarks in the protracted sequence of events. D was referred to the clinic in November 1992. The referral letter identified B as a "consort of four years' duration" who had had a bilateral orchidectomy because of testicular cancer. In May 1994 the specialist at the clinic saw D and B together, noted that they did not live together, and said that there was a need for counselling. The first appointment for counselling, attended by both partners, took place in April 1995. Both attended two further meetings for counselling. In March 1996 they were approved for treatment.
31. There were some delays before treatment began. On 27 November 1996 B signed a form headed "male partner's acknowledgement". It stated,
D signed various consent forms and (on 27 January 1997) she signed a form (headed "Accounting for the interests of the child") which stated, among other things, that she had been living with B for two years. It appears that B had his own accommodation throughout but was at this time living with D and her mother.
32. The first stage of positive treatment took place during 1997. There were three attempts at artificial insemination with donor sperm, all unsuccessful. On 14 January 1998 the specialist wrote to his colleagues in the IVF unit, stating that following the failure of the three attempts, D had been put on their waiting list. On 3 August 1998, B signed a further form (paragraph headed "male partner's consent") in substantially the same terms as the previous form.
33. In October 1998 at least twelve eggs were collected from D and fertilised with donor sperm. The first implantation failed. The second implantation (using embryos which had been stored since their fertilisation) was effected on 4 May 1999. D had a positive pregnancy test on 13 May 1999. But by then D's relationship with B had come to an end. In his judgment on the preliminary issue as to jurisdiction the judge found ( 2 FLR 843, 844, para 4):
But equally it was not seriously disputed that they had separated (at latest) by mid-March 1999 (D's evidence was that it had been some months earlier) before the second, successful, implantation. On a form which she signed on 18 May 1999, D left "partner's name" blank. By then she had, on her own evidence, met her new partner, S, and S attended at her second implantation. During her first day's evidence at the original contact hearing, D said that she had told the specialist about S, at or before the time of the second successful implantation. But at the start of the second day's hearing her counsel (having exceptionally been given leave to speak to her client while she was still in the witness box) corrected that untruthful evidence. It was not until 20 September 1999 that D wrote to her specialist informing him that she and B were no longer together.
The welfare of the child
34. Section 13 (5) of the Act provides:
Section 25 provides for the Human Fertilisation and Embryology Authority ("the Authority") to maintain and publish a code of practice, and the code's guidance is to include (section 25 (2)):
35. In view of section 13 (5), and the guidance given in the code of practice, medical staff at licensed clinics are rightly cautious about providing assisted conception services for unmarried women. As a general rule (but subject, as your Lordships were told, to increasingly frequent exceptions in recent years) clinics would expect an unmarried woman to be in a stable heterosexual relationship if she was to receive treatment. Your Lordships are not on this appeal concerned with the policies which different clinics may adopt, or the inquiries which they make in the course of implementing their policies, except so far as these matters bear on the issue of "treatment . . .together" for the purposes of section 28 (3). But that is a very important exception. If an unmarried man is to become the legal father of a child of which he is not the biological father, that is a momentous matter for both father and child, and one which must be brought home to the prospective father as clearly as possible.
36. The House has been shown the fourth edition of the code of practice, as revised in July 1998. Paragraph 5.8 was in the following terms:
This guidance is no doubt the origin of the forms of acknowledgment and consent signed by B. But the rather half-hearted advice on attempting to obtain an acknowledgment is an inadequate recognition of the importance of establishing whether or not a child born as a result of licensed treatment has a father, and whether the mother's male partner is to have the legal responsibility of fatherhood. It is for consideration whether licensed clinics ought not to require the unmarried male partner either to sign a form of acknowledgment or to explain why he was unwilling to do so (with a refusal to sign leading to a review of the decision to provide treatment services). Clinics should also take steps to ensure, during any protracted course of treatment, that acknowledgments are renewed at regular intervals, and in any case before any embryo replacement (this is required by paragraph 6.36 of the current (6th) edition of the code). If more robust procedures had been in place in this case a good deal of distress (and this expensive litigation) might have been avoided (although it must be accepted that no system can be proof against deliberate deception).
37. There are some other material changes in the current edition of the code of practice (paras 6.32 to 6.38), possibly as a result of the passage of this case through the lower courts. But I still think it desirable that this matter should be given detailed consideration as part of the current review of welfare aspects of assisted conception treatment (see Tomorrow's Children, a consultation paper published by the Authority in January 2005).
The decisions below
38. Hedley J's judgment laid emphasis on the need for clarity and certainty on an issue which might attain practical importance only after the lapse of many years. If a male partner changed his mind about treatment services he could withdraw his acknowledgment, and a clinic, if informed of a change of circumstances, should reconsider the position. But in the absence of the partner expressly withdrawing his acknowledgment or a review by the clinic ( 2 FLR 843, 846, para 10):
39. The Court of Appeal, in the judgment of the Court delivered by Hale LJ, took a different view. Hale LJ agreed with the submission of Mr Jackson QC ( Fam 129, 137, para 20):
She analysed the structure of section 28 (2) and (3) and found an indication that both referred to the same time as critical for legal paternity, that is when the embryo or the sperm and eggs (which eventually result in the birth of a child) are placed in the woman. She noted that "treatment services" are widely defined, and are not limited to a particular cycle or course of treatment. She concluded (p138, para 22),
40. Hale LJ considered that this conclusion supported rather than undermined the legislative purpose of regulating treatment services in a way that takes account of the welfare of any child who may be born. She observed (p139, para 25),
41. My Lords, I consider that the Court of Appeal was right to allow the appeal. For my part I would be content to adopt the reasoning and conclusions of the Court of Appeal, in the judgment delivered by Hale LJ, as my own. But in deference to Miss Macur's submissions (in an appeal which has been argued by all counsel with conspicuous clarity and conciseness) I would add three observations.
42. First, the appellant stressed the need for certainty and clarity, a point which had carried the day before Hedley J. But important though legal certainty is, it is even more important that the very significant legal relationship of parenthood should not be based on a fiction (especially if the fiction involves a measure of deception by the mother). Infertility treatment may be very protracted and a general rule of "once together, always together" (absent express withdrawal of his acknowledgment by the male partner, or review by the clinic) could produce some very undesirable and unjust consequences.
43. Second, my last paragraph does not imply the view that no weight should be given to the perspective (or perception) of medical staff at the clinic (a matter emphasised by Craig Lind in an article criticising the Court of Appeal's decision in (2003) 15 Child and Family Law Quarterly 327, 332-3). The clinic's perception is one element to be taken into account in answering the factual question which the Court of Appeal posed, following the language of section 28 (3). The idea of providing treatment services to two people "together" does involve a "mental element" (the phrase used by Wilson J in U v W (Attorney General intervening)  2 FLR 282, 294) and the perceptions of the medical staff at the clinic are part of that. But they cannot be the decisive element if they are based partly on deception, and if the rest of the evidence shows that at the material time there is no longer any "joint enterprise" between the woman and her ex-partner.
44. Third, in common with the Court of Appeal I do not think that the appellant can get any assistance from Article 8 of the European Convention on Human Rights. The assertion that B has a right to family life with R (when he is neither her social father nor her biological father) really assumes that which has to be established. Miss Macur rightly did not press this point in her oral submissions to the House. Of the Strasbourg authorities referred to in her printed case, only two, Kroon v Netherlands (1994) 19 EHRR 263 and Yousef v Netherlands  1 FLR 210 come within hailing distance of the facts of this case. In both of those decisions the European Court of Human Rights recognised that the existence of a family tie with the child in question must be established: see at p283, para 32 and p219, para 52 respectively. They do not support the conclusion that there was such a tie in this case.
45. For these reasons I would dismiss this appeal.
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