Neutral Citation Number: [2016] EWCA Civ 102
Case No: C1/2015/2189/PTA
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Ouseley
CO30772014
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 24/02/2016
Before :
LORD JUSTICE TREACY
and
LORD JUSTICE FLOYD
--------------------Between:
THE QUEEN ON THE APPLICATION OF MR & MRS
M
- and HUMAN FERTILISATION AND EMBRYOLOGY
AUTHORITY
Appellant
Respondent
----------------------------------------Jenni Richards QC (instructed by Natalie Gamble Associates) for the Appellant
The Respondent did not appear and was not represented.
Hearing date : 4 February 2016
---------------------
Approved Judgment
Judgment Approved by the court for handing down.
R (on the application of) Mr & Mrs M v HFEA
Lord Justice Treacy :
1.
The appellants seek permission to appeal the order of Ouseley J of 15 June 2015
dismissing their claim for judicial review of a decision of the respondent, the Human
Fertilisation and Embryology Authority (HFEA). The HFEA had refused a special
direction under the Human Fertilisation and Embryology Act 1990 (the Act)
permitting the export of the claimants’ daughter’s (AM’s) gametes (frozen eggs) to a
treatment centre in New York so that they could be fertilised and implanted into IM,
AM’s mother.
2.
It was accepted by the appellants that they could not satisfy certain requirements
necessary to enable the export of AM’s gametes abroad under the general directions
pursuant to the Act. Where those requirements cannot be met the respondent may
issue a special direction permitting export. Such special directions permitting export
may permit the requirement for written consent by the gamete provider to be
modified.
3.
Although a number of grounds are raised they centre upon the question of whether
AM during her lifetime gave a sufficiently informed consent to the procedures now
proposed so as to enable a special direction to be given. I have to say that on a reading
of the papers I was doubtful whether the appellants would be able to establish a
sufficiently strong case so as to enable this matter to go forward. However we have
had the benefit of clear and persuasive submissions from Ms Jenni Richards QC
which have led me to change my mind and to conclude that there is an arguable case
with a real prospect of success.
4.
It seems to me that it is arguable that the HFEA and the judge took too stringent an
approach to the question of special directions. Ms Richards took us to various forms
which are part of the process and argued that they supported her contentions and that
the available evidence had been examined in a way which took too narrow an
approach. An important part of her submissions was that there had been inappropriate
emphasis on what AM had not done or said rather than what she had done and said
prior to her death. There had been a failure to approach the available evidence
correctly in relation to an important part of the evidence, namely a conversation
between AM and her mother in January 2010. The judge had acknowledged that
HFEA had taken too narrow an approach but had gone on to hold that the claim for
judicial review should be dismissed.
5.
Ms Richards QC was critical of the conclusion of HFEA at paragraph 36 of its
decision:
“None of the conversations contemplated or considered the use
of donor sperm outside the UK and the particular implications
of such arrangements.”
She argued that AM had no reason to know that treatment in the UK would not be
possible or permitted.
6.
Ms Richards also criticised passages in paragraphs 46 and 51 of Ouseley J’s judgment
as imposing a greater burden on the appellants than the Act required in an assessment
of AM’s intentions and understanding. Overall it was submitted that where the
Judgment Approved by the court for handing down.
R (on the application of) Mr & Mrs M v HFEA
statutory scheme permits consent requirements to be modified the approach of HFEA
and the judge had been to adopt a more rigorous approach than the statute required.
7.
Moreover, it was contended that the approach taken failed to take sufficient account
of AM’s terminal condition, particularly in circumstances where it was said that she
had no reason to know that further decisions on her part were required or that it was
necessary for evidence of them to be obtained.
8.
On reflection I consider that there was enough in the points made by Ms Richards to
warrant a grant of permission centring around the issue of whether, in the
circumstances, an improperly rigorous approach was adopted to the question of
special directions. Given the interrelationship between the four grounds advanced, I
would permit the whole matter to be argued. I give a time estimate of one day.
Lord Justice Floyd :
9.
Like Treacy LJ, my initial reaction was to refuse permission, but I was persuaded by
the oral advocacy of Ms Richards that her arguments deserve the attention of the full
court. For the reasons Treacy LJ has given I agree that we should grant permission.