B1/2000/3303

Neutral Citation Number: [2001] EWCA Civ 230
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LIVERPOOL DISTRICT REGISTRY
(HIS HONOUR JUDGE HEDLEY)
		                          	 Royal Courts of Justice
                                         The Strand
                                         London
                                            
								                         Tuesday 13 February 2001

B e f o r e:

THE  PRESIDENT
(Dame Elizabeth Butler-Sloss)

LADY  JUSTICE  HALE

and

LADY  JUSTICE  ARDEN

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IN  THE  MATTER  OF  D  (A Child)

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(Computer Aided Transcription by
Smith Bernal, 190 Fleet Street, London EC4A 2HD
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Official Shorthand Writers to the Court)
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MISS A PAUFFLEY QC and MR JAMES GATENBY (instructed by Stephen D Brine Solicitors, Liverpool L5 6PU) appeared on behalf of THE APPLICANT
MISS L HARRISON (instructed by Cobleys Solicitors) appeared on behalf of THE RESPONDENT
MR J WALL (instructed by the Official Solicitor, London WC2A 1DD) appeared on behalf of the GUARDIAN AD LITEM
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J U D G M E N T

Tuesday 13 February 2001
1.	THE PRESIDENT: This is an application for permission to appeal in somewhat unusual circumstances. I gave a direction at the beginning of this case that there must be no identification of any of these parties or of anything that identifies any of the parties and particularly the child. 
2.	The couple with whom we are concerned met in 1988. Their relationship became closer by 1995. They became engaged to be married, but they did not in fact marry. They were anxious to have a child. For various medical reasons they were unable to have children themselves. As the judge said, they were both desperate for a child. Both had despaired of conceiving naturally. In 1996 they sought help from the Reproductive Medicine Unit of a hospital. They were given IVF treatment, using an anonymous sperm donor. 
3.	By the Human Fertilisation and Embryology Act 1990, section 28(3), if a couple who are not married are together treated by a person to whom a licence applies and the creation of the embryo carried by her was not brought about by the sperm of that man, then that man shall be treated as the father of the child. Under subsection (4), where a person is treated as the father of the child by virtue of subsection (2) or (3), no other person is to be treated as the father of the child. By section 29, where a person is to be treated as the father of the child, that person is to be treated in law as the father of the child for all purposes. 
4.	The couple engaged in the treatment together, signed the appropriate forms, were given the appropriate counselling, and they hoped that a child would be born. Very sadly, it was not possible and a child was not conceived. 
5.	They indicated that they were and were accepted by the unit at the hospital as a stable couple able to parent a child. 
6.	The treatment that they were both engaged in started in 1998. It was, as I said, unsuccessful. By 1999 the couple had separated. The mother by then had a new man in her life, a Mr S. She returned to the unit for a second attempt to have a child. On this occasion the fertility treatment was successful. The second man gave her moral support, but he did not attend for treatment. The consent achieved on the first occasion in 1998 was accepted by the unit in 1999 in ignorance of the fact that the couple who presented themselves at the unit were not the couple who had presented themselves a year before. The mother relied on the consent to treatment which had been provided in 1998. She did not tell the unit that she had changed her partner. On this occasion the treatment was successful and a little girl was born on 5 February 2000. She was born by an anonymous sperm donor. 
7.	By virtue of the consent, and the fact that he had taken part in the initial treatment process, the applicant before us today is for all purposes treated as the father. That was the finding of the judge. It is an unusual case. The Official Solicitor was invited by Judge Hedley to represent the child. 
8.	At a time prior to the hearing of the case it was agreed between the parties, and accepted by the Official Solicitor, that any question as to whether or not the situation between this couple came within subsection (3) of the 1990 Act was not to be explored before the judge; the judge would be asked to assume jurisdiction and look at the merits of the case and the welfare of the child. The judge was so informed. Clearly he considered it with some care, but has not in his judgment expressed his reasons for assuming jurisdiction and has not considered the possible implications of section 28(3) of the 1990 Act. It is always difficult, if the parties are agreed, for the Court of Appeal to “rock the boat” and express disagreement, but this case raises a possible question as to whether or not the court below had jurisdiction. 
9.	The two issues that came before His Honour Judge Hedley were: first, whether or not there should be contact and, if contact, whether it should be direct or indirect; and secondly, whether the father should have a parental responsibility order. 
10.	The hearing came before His Honour Judge Hedley on 20 September 2000. He considered the two issues of contact and parental responsibility. He did not deal with the issue of jurisdiction. There is no application for permission to appeal to this court on the issue of jurisdiction. Speaking entirely for myself, I am a little disturbed by that because the concessions of the parties would not seem to me to be able to bind anyone other than the parties and potentially the child as to the exact status of the father. This is an issue which may raise its head at some stage in the future. 
11.	The hospital was eventually told that the consent form used for the second course of treatment related to a man who was no longer involved. That was an extremely unusual experience for them. They were very concerned about the way in which the mother had deceived the hospital. With some hesitation, I do not propose therefore to explore this matter any further and I shall treat the applicant as the father for the purposes of this hearing. It seems to me that the Human Fertilisation and Embryology Authority ought, however, to be made aware of the concerns that I (and my Ladies) have expressed. I would propose that Judge Hedley's judgment, together with our judgments, should be provided to the Authority at public expense. 
12.	I turn to the issues that are before this court. The decision of Judge Hedley on 20 September refers, first, to the question of contact, and second, to the question of parental responsibility. The judge accepted that, under sections 28(3) and 29 the father (as I shall call him) was the father for all purposes, although he was not the biological father. The judge had to consider the welfare of the child under section 1 of the Children Act 1989. He looked at the interrelation between the 1990 Act and the 1989 Act. Nothing turns on that at this stage of the proceedings, although at one stage it was an issue raised by Miss Pauffley QC in her arguments before us. At paragraph 13 of his judgment, the judge said: 
	“.... I must turn to consider what orders I ought to make in the best interests of R.” 
13.	The judge, who saw the father as a stabilizing member of the child's in the future, continued: 
	“It seems to me that the following factors ought to weigh with me. First, R depends upon her mother for her nurture and welfare. Secondly, the mother is mentally and emotionally fragile and, I am satisfied, genuinely would be unable to cope with direct contact. Thirdly, this child is likely to encounter serious issues in understanding her background and for that will be dependant on a mother in whom I do not have confidence to face up to those issues; I think there is a real risk that the issue will be shelved and even that the child will initially, at least, be misled. Fourthly, there is no basis on which this child could understand who Mr B was or why he was being introduced into her life and, whilst that is sometimes an issue with a putative father, it is exacerbated in this case by the unusual biological background. Fifthly, I am satisfied that Mr B is genuine in his desire for contact and parental responsibility and may well have an important role in helping the child to come to terms with her origins; moreover, I am not satisfied that I can rely on Mr S (from whom I have not heard) to provide a father figure indefinitely or, indeed, to be allowed by the mother to do so.” 
14.	He then described the father's decision not to press for direct contact as responsible. He thought that indirect contact was valuable for the child. He went on: 
	“Whilst I would not rule out direct contact for the future, especially if Mr S ceases to be the father figure, I do think it lies well into the future. Although I do not propose to make an order under section 91(14) of the 1989 Act, I do propose to reserve further applications to myself and I think it unlikely that I would seriously contemplate direct contact before this child was say 3 years old, barring unforeseen circumstances.” 
15.	He further directed that the father should be given photographs of the child. 
16.	That is the basis of the first application for permission to appeal by the father. He takes the view that to impose upon him a requirement to wait for three years (two‑and‑a‑half years from the time of the hearing) was excessive; that it was in effect applying a section 91(14) restriction by the back door; and that it would be reasonable for the father to be able to make applications for contact within perhaps a year or eighteen months. 
17.	Miss Pauffley told us in support of her application for permission that the father has been sending entirely sensible presents for the child. He received before Christmas a polite “thank you” letter from the mother, indicating her pleasure at receiving the presents and also indicating a friendly approach towards him. Miss Pauffley urged this in support of reducing the period that Judge Hedley had said should expire before it came back before him or before a High Court Judge. 
18.	I see it quite differently. It seems to me that this is a good example of letting sleeping dogs lie, allowing the process to calm down, allowing the parties themselves to make the moves to improve the situation between them. Section 1(5) of the Children Act, whereby it is better to make no order than to make an order, is for consideration in this particular case. If the father continues to supply suitable presents in a modest way, and continues to be sensible and responsible, as he has been up to now, the mother's reaction may continue to be sensible, responsible and friendly. It is not beyond the bounds of possibility within the next year that she might agree to them having a brief meeting so that he can see the child. If he does not then force the situation, but accepts whatever she may offer, then there is the possibility that both of them could build on that, without the intervention of lawyers and the inevitable consequence of the intervention of lawyers and court proceedings of the adversarial atmosphere. This case cries out for a non‑adversarial atmosphere and an attempt by these sensible grown‑ups to try and resolve their own problems themselves. 
19.	There is a very practical point: How could the father have any real contact with this child before she is of an age that she can be detached from her mother? If his relationship with the mother is not friendly, then it will be almost impossible to remove the child from the mother for the purpose of contact (even supervised contact) until she is of an age when she would not cling to her mother. Consequently, between the age of six months and three years old, the opportunity to have some sort of contact which means something for the child (rather than for the father) would be difficult to manage. I would urge this father to be patient and see what emerges. If circumstances improve dramatically so that everybody believes that a contact order would be desirable, there is nothing in the judge's order to prevent the father from returning before three years. The judge has not made an order to that effect. On the contrary, he has only given an indication. Indications are relevant at the time they are made, but may not be relevant at the time that the next application is heard. I would therefore urge on the father patience, an element of good humour, and hope that the mother will respond to his moderation. He may then have a chance to see the child, even if only briefly, within a much shorter period than three years. To a father wanting to get to know his child, that may sound like a life sentence. However, it is worth him remembering that children have eighteen years of minority; they are rather more rewarding as they become older than they are when they are extremely young. If he is patient now, and the mother does not become upset (bearing in mind what the judge said about her fragility), she may find it much easier to let the child and the father have a relationship when the child is older. Not only do children remain minors until they are 18, a relationship with them when they are grown up can be equally valuable. This father will want to have a relationship with his daughter for the rest of their lives. The rest of their lives is more important than the next year. That may be a disappointing suggestion for the future, but one well worth taking into account. 
20.	I cannot see that the judge can conceivably be said to be wrong in saying that there should not be an application for direct contact until the child is around three years old. In the circumstances of this case it was extremely sensible and, in my view it is utterly unappealable. Consequently, there is no purpose in giving permission to appeal. 
21.	The second issue is more difficult. It concerns the question of parental responsibility. In the unusual way in which this child has been born (it may not be unusual for the future, but is relatively unusual at present), the child will, as the judge said, have to face aspects of her background that most children do not have to face. The judge sees the father at some stage as having a part to play in helping the child to come to terms with how she was born and being a person, and (I hope) in having a relationship with her father. 
22.	Should the father have parental responsibility now? He is to be treated, in my view, in exactly the same way as any other father who has a child by a woman to whom he is not married. Under our present law, those fathers are not automatically given parental responsibility. They have to apply for it if the mother will not consent. There are many cases where a father, who shows potential commitment and has genuine motives but has not yet had an opportunity to know the child and there is no intention of having direct contact in the immediate future, does not necessarily obtain a parental responsibility order. It is deferred until a later date. This is not an unusual situation. That is exactly what Judge Hedley did. At paragraph 15 of his judgment he said: 
“I am clear that in the light of the history of this case it would be quite wrong to dismiss his application; quite apart from anything else, it would send all the wrong signals to the mother. On the other hand he has really no forum in which to exercise parental responsibility at this stage. He shows potential commitment, there can be no attachment and I do not doubt his motives.” 
23.	(Judge Hedley is there summarising the judgment of Balcombe LJ in Re H [1989] 2 FLR 215). 
	“Whether or not he has parental responsibility at the moment hardly affects the welfare of R. In the end I have come to the conclusion that I should adjourn the father's application for a parental responsibility order generally with this observation: if he maintains his commitment to indirect contact for the next couple of years then, barring unforeseen circumstances, I can really see no proper basis for not then granting his application.” 
24.	The question was raised before the judge that the mother was talking about making an adoption application with her present partner, Mr S. She is not married to him. There is therefore no immediate right to make such an application. The judge considered the possibility of an application and made the point at the end of paragraph 16 of his judgment: 
	“[If the mother made an application for adoption] it would also of course require the restoration of the father's application for parental responsibility.” 
25.	The judge in his order specifically said: 
	“The father's application for parental responsibility shall be adjourned generally to be reinstated on application by the father [without any requirement of time] or in the event of any application for the adoption of the child.” 
26.	The judge recorded that it was the intention of the court that the father be served with any applications in court proceedings relating to the child. Therefore this father has some elements of protection against the mother if she was foolish enough to try and make applications of any sort in relation to the child that might adversely affect his position. It would be inconceivable, in my view, that it would be possible for the mother to make a successful adoption application without notifying the father and giving him the opportunity to have a parental responsibility order. If she attempted to do it by misleading the court, such an order for adoption would be likely to be set aside because the proper parties had not been brought before the court. 
27.	In my view, the judge very carefully covered the aspects that the father required to protect him without a parental responsibility order. He weighed up the factors for and against parental responsibility. He clearly had section 1 of the Children Act (the welfare of the child is paramount) uppermost in his mind, as he thought of these difficult factors, and he considered it a very difficult case. The more difficult the case, the more difficult to mount an appeal. 
28.	This was, in my view, an impeccable judgment by an experienced judge dealing with a most unusual situation. He has given the father hope for the future and I cannot see that his approach to parental responsibility can in any way be criticised. In that matter also I would refuse permission to appeal. 
29.	LADY JUSTICE HALE: I agree that this application should be refused for the reasons given by my Lady, the President. 
30.	I wish to add only a few words because of the unusual circumstances of this child's conception and birth, the consequences of those circumstances for all concerned, and my disquiet about how this matter was handled in the litigation on behalf of the child. 
31.	There have been no detailed findings of fact about those circumstances. As far as they can be discerned, they appear to be as follows. The couple went together for fertility treatment, having been on the waiting list for some time. They underwent the required counselling together to explore the consequences of that treatment. They presented as a united couple with a stable relationship. They undertook a course of donor insemination in the first instance because it was known that the male partner was infertile. That treatment was unsuccessful. It was therefore proposed that they engaged in in vitro fertilisation because of problems with the mother's eggs. 
32.	The only consent form which was before the court was a consent form for IVF treatment. It is dated 3 August 1998. In it the mother consents to be prepared for egg retrieval, to the removal of the eggs, to the administration of drugs, to the mixing of her eggs with an anonymous donor's sperm, and to the placing in her uterus of embryos. That is a form recommended by the Human Fertilisation and Embryology Authority. Her male partner states that he is not married to her, but he acknowledges that: 
	“She and I are being treated together and that I will became the legal father of any resulting child”. 
33.	It would appear that thereafter she was given the usual drugs to stimulate ovulation. Her eggs were harvested and they were fertilised with the donor's sperm. There was one attempt at implantation of the resulting embryos in the latter part of 1998, which failed. The couple then separated. 
34.	There was a second attempt at implantation at around the beginning of June 1999. That succeeded and, happily, the child who is the subject of these proceedings was born. It would appear that the embryo or embryos then implanted were those that had been fertilised from the earlier treatment and had then been frozen. But by that time the mother's version was that she had not only parted company with the father, but had formed a new relationship with a new partner. He went with her to the hospital, but she did not tell the hospital that her former relationship had ended. It would appear that the hospital did not seek any further specific consent to that implantation. 
35.	In those circumstances (if those be the facts), a serious question arises as to whether section 28(3) of the Human Fertilisation and Embryology Act 1990 does in fact apply. That applies if 
		“(a) the embryo .... [was] placed in the woman .... in the course of treatment services provided for her and a man together ....” 
36.	I express no view at all as to what the answer to that question is. The concession which was made by the mother and on behalf of the child may or may not be well founded. But, in my view, it was highly undesirable that a novel and difficult set of circumstances such as these were allowed to determine an important issue of jurisdiction and fact, which will have implications for this child, for her mother, for her father, for all their families, for many years to come. It is a matter of jurisdictional fact because the jurisdiction to make a parental responsibility order at all depends upon the male person being the father of the child. On that also depends his ability to apply for a contact order without leave of the court. 
37.	It is also a matter which may have considerable implications for other people, and those other people cannot possibly be bound by the concession that was made in this case. Indeed, I express no view at all as to whether the parties are bound by the concession of jurisdictional fact because we have not heard argument on that matter.Furthermore, it is an issue in which there are third party interests. Had this been handled by way of a declaration of parentage under the amended Family Law Act 1986, the Attorney General would probably have been notified so that the point could be fully and properly argued, and the facts fully and properly explored. But in any event, the Human Fertilisation and Embryology Authority, which is charged by Parliament to regulate treatment such as this ‑‑ and without a licence from the authority section 28(3) could not apply ‑‑ has an interest in these matters. I echo what my Lady has said about the necessity of drawing this case to their attention. It raises all sorts of issues, in particular about the wording of the consent form in which the proposed father has to acknowledge that he will be the father, but the mother apparently does not have to make the same acknowledgement, and in which a consent form signed in August in one year is regarded as appropriate for handling the circumstances of attempted implantation in around June of the following year. 
38.	For all those reasons I consider it most unfortunate that the matter was handled in the way that it was. However, in many ways that may have been fortunate in the longer term because once it was dealt with on the welfare issues alone, it is quite plain that His Honour Judge Hedley handled this with his customary clarity of thought, humanity and common sense of approach. He rightly took the view that the fact of biological parentage could be relevant to the welfare of a child. In this case he took the view that it was beneficial to the child that there should be a potential relationship with the man deemed to be the child's father because he had more confidence that the father would be able to deal in due course with the delicate issue of the circumstances of her conception and birth than the mother. He was further entitled to take the view that it was wise to go gently in the matter of contact, and he was entitled to take the view that on balance it was premature to make a parental responsibility order while taking great care to protect the father's position in relation to any future application about the child. 
39.	In my view, this was an impeccable judgment. It was only unfortunate that proceedings arrived at that stage without a previous stage in which the other issues had been properly explored. 
40.	LADY JUSTICE ARDEN: I agree with the judgment of the President and with the judgment of Hale LJ, and that for the reasons which they have given this application must be dismissed. 
41.	I wish to add that I have heard this application as one made de bene esse. As has already been stated, the Judge accepted a concession by the parties as to whether the applicant was the father of the child. As I see it, it was not beyond reasonable argument that the father is not indeed the father by virtue of section 28(3) of the Human Fertilisation and Embryology Act 1990, but I express no view on that. 
42.	The court has to be satisfied that there is jurisdiction. Jurisdiction cannot be founded on a concession. Because the concession has been extended to this application, I have therefore treated this application as one made de bene esse. In the circumstances it is not necessary for me to say more, save this. The question of whether the father is indeed to be treated as the father under section 28(3) of the 1990 Act, and accordingly whether the court has jurisdiction founded on his capacity as father, is a matter which may have to be considered by the Judge on a future occasion. 
43.	I agree that an anonymised version of the judgment of the Judge and of this Court should be sent to the Human Fertilisation and Embryology Authority so that that authority can consider whether there are circumstances of general application arising out of this case which they ought to consider in the public interest, such as the form of consent to be signed before treatment is given. Of course that body may well have considered these matters before, but if they have, no harm is done by drawing this matter to their attention and hopefully some good will come of it. 
ORDER:Applications for permission to appeal refused; no order for costs, save legal aid assessment.
(Order does not form part of approved Judgment)