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Judge criticises clinic's 'seriously deficient' care of couple after clerical blunder

18 April 2016
Appeared in BioNews 847

A clerical mistake at a Sheffield IVF clinic meant that a father's status as his child's legal parent was put in doubt.

The couple affected was informed of the error when the clinic that had provided the treatment, CARE Sheffield, telephoned them some years after the birth and said there had been a mistake with the consent forms.

At the time of treatment the couple believed they had signed the correct forms to ensure that they would both be legally recognised as parents. They went on to register the birth of the child, listing themselves on the birth certificate, but the clinic later told them that there had been a mistake and the father should have been listed on the birth certificate as 'unknown'. The couple have said the news left them feeling 'physically sick' and 'numb and shocked'.

The mistake occurred when the clinic believed that a new version of consent forms, brought in by the Human Fertilisation and Embryology Act 2008, applied only to treatments carried out after 6 April 2009, which was the date that the treatment in question began, when they in fact also applied to treatments that commenced on that date – even though the consent was taken beforehand. In a further mistake, the forms stated that the man's sperm would be used when 'it was clear to everyone at the outset' that in fact donor sperm would be used.

The father initially sought to adopt the child, as the clinic had suggested, but a judge spotted that a declaration for legal parenthood from the High Court might be possible instead. The parents expressed great distress at having to initiate adopting proceedings, speaking of the 'devastation' upon realising that the man may have to adopt his own son.

Sitting in the High Court, the President of the Family Division, Sir James Munby granted a declaration that the man was the child's legal father. He held that even though an old version of the consent form was used, it was nevertheless valid and that consent was effective. He also said that the court could correct mistakes when it was 'plain what was meant', and drew on his decisions in previous cases to set out the court's power to correct mistakes that are 'obvious on the face of the document' as a matter of construction, without the need for rectification.

The case is one of several bought against fertility clinics after the Human Fertilisation and Embryology Authority identified the errors in filling out consent forms (see BioNews 819). There remain a further six cases awaiting a final hearing.

The senior judge was also highly critical of the clinic in their handling of the situation, saying that the couple did not receive the support that they should have, describing its behaviour as 'seriously deficient'.  

Lord Justice Munby said that a letter from the clinic to the parents outlining the legal position as they saw it 'contained not a single word of apology or regret'. A subsequent offer of £1,000 to each of the parents in 'settlement of all causes of action' also did not include an apology. He described the clinic's apology for 'the distress this matter has caused' in their witness statement in the case as 'anaemic'.

A spokesperson for CARE Fertility Group said it was 'sorry for the upset this has caused' and was 'working hard to correct the errors made', reports BBC News.

[2016] EWHC 791 (Fam)
Bailii |  12 April 2016
Father is told to adopt his own baby in IVF blunder: Parents' agony over mix-up in forms
MailOnline |  14 April 2016
Sheffield clinic criticised over IVF form blunder
BBC News |  12 April 2016
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