Ex-husband is legal parent of children conceived following fertility treatment

Children|November 13th 2019

Legal parent following fertility treatment 

Some family cases have what one might call a ‘complex history’ (well, at least they seem complex to me). I came across one such case last week: PQ v RS and others (Legal Parenthood: Written consent), which involved cross-applications by former spouses in relation to two children: one by the ex-husband for a declaration of parentage in respect of the children, and the other by the former wife for a declaration of non-parentage.

In case that is not clear, the ex-husband was seeking a declaration that he is the legal parent of the children, and the former wife was seeking a declaration that he is not their legal parent.

Complex history

To explain this we need to look at the background of the case, which was as follows:

  1. The parties’ relationship began in 2008, and they started living together in 2010.

  2. The couple consulted a fertility clinic in 2011 and were informed that the man was unable to have children. They, therefore, agreed to undergo fertility treatment at the clinic and both signed the necessary consent forms, regarding consent to the man being a parent.

  3. Treatment followed and the children were born in 2013.

  4. The parties were married in the following year. (I shall hereafter refer to them as ‘the husband’ and ‘the wife’, despite the fact that they are now divorced.)

  5. Later that year the clinic contacted them to say that there had been an error in the paperwork. The wife had signed the section consenting to be the legal parent of any child born as a result of the treatment. Obviously, that section should have been signed by the husband. The parties decided to take no action to correct the error.

  6. The marriage broke down, and the parties separated in March 2017. Unfortunately, their relationship deteriorated to the extent that a dispute arose as to the extent of the husband’s involvement in the care of the children, and the husband alleged that the wife was telling people that he was not their father.

  7. The husband applied for a child arrangements order in October 2017.

  8. The wife applied for child maintenance from the husband. An assessment was made for the husband to make payments, but he subsequently successfully challenged it, on the basis that he was not the father of the children. (The husband explained that his actions were caused by the financial pressure the parties were under at the time, and his wish to maintain the mortgage payments on the family home.)

  9. In April this year, the husband issued his parentage application. The wife cross-applied for a declaration of non-parentage. The husband’s application was supported by the Children’s Guardian and the clinic and opposed by the wife. No other party supported the wife’s application.

So, in short, we had a man who thought he was the father but then found that he wasn’t. He still proceeded as if he was until asked to maintain the children. Notwithstanding that, he then sought a declaration that he was the father, but the mother sought a declaration that he wasn’t. With respect, I am reminded of the catchphrase from the TV series Soap (for those who are old enough to remember): Confused? You will be.

The applications fell to be determined by Mrs Justice Theis.

Rectification

Without going into the legal technicalities, she found that the errors in the consent form were a ‘clear and obvious mistake’. The parties believed that they were consenting to the husband becoming the parent of any child born as a result of the treatment, and they both believed that they had signed whatever was legally required to ensure that they both became parents. The form did not reflect their agreement. The errors could be corrected by way of rectification.

In the circumstances, she made a declaration of parentage in relation to both children in favour of the husband and dismissed the wife’s application for a declaration of non-parentage.

The full report of the judgment is here.

Get in touch

If you would like any advice on issues about being the legal parent following fertility treatment or fertility law, please do contact our Client Care Team to speak to one of our specialist fertility lawyers here. 

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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