Case O (Human Fertilisation and Embryology Act 2008) Neutral [2016] EWHC 2273 (Fam)

A same-sex couple’s first child was wrongly adopted by the non-birth mother due to a clinic’s lost consent form. The President of the Family Division declared legal parentage under the 2008 Act and, exceptionally, revoked the adoption order.

Facts

The applicant, X, and her partner Y entered into a civil partnership in 2009 (later converted to marriage in 2015). They planned their family carefully, each intending to bear a child using sperm from the same donor. X received IUI treatment at St Bartholomew’s Hospital Centre for Reproductive Medicine (operated by Barts Health NHS Trust), a clinic regulated by the HFEA, and gave birth to C1 in 2010. Y subsequently gave birth to C2 at a different clinic.

Although X signed a Form WP at the appropriate time, no Form PP signed by Y could be located in the Barts records, nor any Form IC. However, the Barts Treatment Checklist contained manuscript ticks evidencing that Y had attended the information session and signed consent. The file was found to be deficient: it omitted a Characteristics Sheet known to have been completed, and contained a document relating to an entirely different patient.

On discovering the alleged defect some years later, X and Y were told by the clinic and their then solicitors that the only remedy was for Y to adopt C1. An adoption order was duly made by a District Judge in 2014, before Theis J’s clarifying judgment in X v Y [2015] EWFC 13. X and Y found the process deeply distressing. They subsequently applied for a declaration of parentage under section 55A of the Family Law Act 1986 and for revocation of the adoption order.

Issues

The court had to determine two issues:

• Whether, notwithstanding the missing Form PP, Y could be declared the legal parent of C1 under section 36 of the Human Fertilisation and Embryology Act 2008.
• Whether the High Court had jurisdiction, and should exercise it, to revoke the adoption order made in 2014.

Arguments

Mr James Turner QC for X, supported wholeheartedly by Y, sought a declaration of parentage and revocation of the adoption order. Ms Dorothea Gartland for Barts supported the applications and acknowledged the clinic’s responsibility, offering an apology and agreeing to pay costs. Ms Deirdre Fottrell QC and Mr Thomas Wilson, on behalf of the child’s guardian, unequivocally supported both applications, submitting that C1’s welfare would be better served by restoring the status quo ante and that the adoption was, in Ms Fottrell’s words, a wholly contrived position.

Judgment

Parentage

Applying the statutory framework and principles established in In re A (Legal Parenthood: Written Consents) [2015] EWHC 2602 (Fam), Sir James Munby P found as fact that treatment was embarked upon jointly with full knowledge, that both intended Y to be a legal parent, and that both believed they had signed the requisite forms. The manuscript entries on the Treatment Checklist sufficiently evidenced a Form PP signed by Y at the appropriate time, which had subsequently been lost or mislaid. The case was analytically indistinguishable from Cases A, F and H in In re A. X was entitled to the declaration sought.

Revocation of the adoption order

The President reviewed the authorities, including In re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239, Webster v Norfolk County Council [2009] EWCA Civ 59, and Re W (Inherent Jurisdiction) [2013] EWHC 1957 (Fam). He identified key propositions: the High Court has inherent jurisdiction to revoke an adoption order in an appropriate case; the bar is very high; regularly made adoption orders cannot normally be set aside for mere mistake or even miscarriage of justice; and exceptionality alone is insufficient.

However, this case was unprecedented. The central fact was that when Y applied for the adoption order she was already, in both fact and law, C1’s mother. The entire adoption proceeded on a fundamental mistake of law going to the very root of the need for adoption at all. Revocation would not uproot C1 from one family and return the child to another; C1 would remain with the same parents emotionally, psychologically, socially and now also legally recognised as such from birth. The President held that public policy in this highly exceptional case marched in step with justice and C1’s welfare demanded revocation.

Birth certificate

Pursuant to Schedule 1, paragraph 4 of the Adoption and Children Act 2002, quashing of the adoption order results in the cancellation of the “Adopted” marking and any future birth certificate will not reproduce any adoption-related annotations. The court directed that the original birth certificate held on the adoption file be returned to X and Y.

Implications

The decision confirms that where a clinic’s record-keeping failure is the source of an apparent consent defect, contemporaneous documentation such as a treatment checklist may suffice to evidence the existence of a properly signed but lost consent form, enabling a declaration of parentage under the 2008 Act.

More significantly, the case establishes that the High Court’s inherent jurisdiction to revoke an adoption order may be exercised where the adoption was made on a fundamentally mistaken legal premise — specifically, where the applicant was already in law the child’s parent and the adoption was therefore entirely unnecessary. The judgment is careful not to widen the established high threshold: the President emphasised that the circumstances were unprecedented and far removed from earlier authority, and that mere mistake or miscarriage of justice remains insufficient.

The case matters particularly to same-sex couples and others who, following erroneous advice in the wake of HFEA consent anomalies identified before Theis J’s February 2015 decision in X v Y, pursued adoption as a supposed remedy when a declaration of parentage was in fact the correct route. It demonstrates a judicial willingness to remedy, where possible, the consequences of earlier professional misunderstanding of the statutory scheme. The judgment also draws attention to the continuing scale of the HFEA consent problem, referring to around 90 cases identified with anomalies.

Verdict: The court granted X’s application, making a declaration under section 55A of the Family Law Act 1986 that Y is the legal parent of C1 pursuant to section 36 of the Human Fertilisation and Embryology Act 2008, and revoked (quashed) the adoption order previously made in favour of Y. The original birth certificate was directed to be returned to X and Y, and the clinic agreed to pay the costs.

Important update – see: In the matter of X and Y [2026] UKSC 13

Source: Case O (Human Fertilisation and Embryology Act 2008) Neutral [2016] EWHC 2273 (Fam)