Last updated on April 29th, 2016 at 08:51 am

The couple, who were unmarried at the time, but have since married, attended the CARE clinic in Sheffield for fertility treatment that commenced on 6 April 2009.  They had, in their view, completed the forms that would recognise them both as parents of the child that would be conceived using donor sperm.  Their child was born and both parents were named on the birth certificate.  No more was thought about it until the parents received a letter from CARE in 2014 stating that it had not taken the correct consent from them to establish that the man was the father of the child and that the couple would have to go through an adoption process.

Father told to adopt own child

Nicola’s clients were, of course, devastated that the only route appeared to be that the man had to adopt a child he thought was his own child, but, thinking there was no other way, and saying it was ‘against all they had hoped for’ when they started the treatment, they commenced adoption proceedings.

Graysons sought advice from counsel, Marisa Allman and Deirdre Fottrell QC, who had involvement in similar cases where errors had been made by fertility clinics.  They advised the couple to apply for a declaration of parentage.

IVF paperwork blunder

The error came about when the clinic sought consent (to both people being named as legal parents) on forms in February 2009.  These forms related to the law that was in force for treatments undertaken before 6 April 2009 (the day the treatment actually took place).  The Human Fertilisation and Embryology Act 2008 came into force on 6^th April and required different authorisation to allow both people to be declared as parents.  The clinic says that it had misunderstood the rules – despite guidance given by the Human Fertilisation and Embryology Authority (“the HFEA”), the independent body responsible for overseeing fertility treatment – and thought the new regulations came into force for treatments carried out after 6 April 2009.

The case was heard by the president of the Family Division in the High Court in London on 6^th April 2016.  In declaring that the man is indeed the legal father of the child, Sir James Munby said that the clients had believed that they had signed the correct forms and had both intended that they should both be declared as parents, following the original counselling given to the couple by the clinic.  He also declared that another error (the clinic had ticked the wrong box which indicated that the man’s own sperm was to be used, when it was always known and intended that it was to be donor sperm) was simply an administrative error and caused no issues.  He criticised the clinic’s treatment of the couple as ‘seriously deficient’ and deserving of the couple’s, and the child’s guardian’s, criticism.  The guardian said that the clinic’s actions didn’t ‘compare favourably to those of the other clinics’, that it had been ‘defensive and insensitive’ and that its comment to the mother that she would have to take the father’s name off the birth certificate and declare the father as ‘unknown’ was ‘not only factually incorrect but most terribly hurtful.’

Nicola’s help leads to success

Nicola’s clients were delighted with the outcome of the case, despite the terrible difficulties they have had to overcome.  They say

“We are very unhappy that we did not receive the support we should have had from CARE in Sheffield.  Only now, in 2016, has it made any apology to our family whatsoever – and that was in a witness statement!  We have had no personal apology.  The information the clinic gave us in 2014 was heart breaking.  We had no reason to believe that anything was wrong at all until this point, and the journey since then, from having to start the adoption process to our getting the declaration of parentage, has been devastating.  We are so pleased at the outcome and would like to thank Nicola and Graysons for all their help and expertise in getting us to this point.  We would also like to thank our barristers Deirdre Fottrell QC, Marisa Allman and the guardian’s barrister, Sarah Morgan QC, for their guidance and hard work.  Our thanks also to Sir James Munby for giving us the declaration and for his appreciation of what a difficult time it has been for us. We are particularly pleased with the last two paragraphs of his judgment in which he recognises the particularly poor service we received from the CARE clinic.  We are looking forward to getting on with our lives as a normal family now.”