References: [2015] EWFC 13
Links: Bailii
Coram: Theis J
Ratio The required Form PP was not on the clinic’s file. Theis J set out four issues which accordingly arose: (1) Did X sign the Form PP so that it complied with section 37(1) of the 2008 Act? (2) If X did, was the Form PP subsequently mislaid by the clinic? (3) Was the treatment ‘provided under a licence’ as required by section 37(1)? (4) If the Form PP form was not signed can the court ‘read down’ section 37(1) to enable the court to make the declaration of parentage sought? She summarised her conclusions as follows: ‘I have concluded, on the facts of this case, that it is more likely than not that X did sign the PP form on 26 October 2012, and it has subsequently been mislaid by the clinic. I have also concluded, in the circumstances of this case, the failure by the clinic to maintain records did not amount to a breach of the licence so as to invalidate it, so that the treatment was ‘provided under a licence’ as required by s. 37(1).’
Ratio Theis J summarised the statutory record requirements: ‘Section 12(1)(d) HFEA 1990 provides that one of the conditions of every licence granted is that ‘proper records shall be maintained in such form as the Authority may specify in directions’. Direction 0012 requires licensed centres to maintain for a period of 30 years certain specific records, including ‘all consent forms and any specific instructions relating to the use and/or disposal of gametes and embryos’ (paragraph 1(f)). Licence condition T47 provides ‘All records must be clear and readable, protected from unauthorised amendment and retained and readily retrieved in this condition throughout their specified retention period in compliance with the data protection legislation’. At paragraph 31.2 of the guidance it provides ‘A record is defined as ‘information created or received, and maintained as evidence by a centre or person, in meeting legal obligations or in transacting business. Records can be in any form or medium providing they are readily accessible, legible and indelible’.’
It is clear from the findings I have made about the clinic not keeping the PP form for X that the CRM is in breach of Direction 0012.’
Statutes: Human Fertilisation and Embryology Act 2008
This case is cited by:
- Cited – In the matter of the Human Fertilisation and Embryology Act 2008 ; A and Others FD (Bailii, [2015] EWHC 2602 (Fam), [2016] 1 WLR 1325, (2015) 146 BMLR 123, [2015] 3 FCR 555, [2016] 1 All ER 273, [2015] WLR(D) 387, [2015] Fam Law 1333, WLRD)
The court was asked: ‘who, in law, is or are the parent(s) of a child born as a result of treatment carried out under this legislation’
Held: The court pointed again to the failures to keep proper records within several fertility clinics. . .
(This list may be incomplete)
Last Update: 17-May-16
Ref: 542927
