When is a parent not a parent?

Administrative errors are a common fact of life. All of us (lawyers included) are prone to mistake. Unfortunately, sometimes those mistakes can have quite significant consequences. The President of the Family Division, Sir James Munby, had to grapple with that problem when he heard the matter of HFEA 2008.

The matter concerned the applications of no less than 7 parents who were seeking declarations of parentage in respect of their children. In each case, the children concerned had been born by way of donor insemination, overseen by a number of fertility clinics. These parents clearly considered themselves to be parents of their children. However, the fertility clinics said otherwise. This was because in the case of these 7 parents, the correct forms to confirm that the donors consented to fertility treatment had either gone missing, or were not the mandated forms specified by the Human Fertilisation and Embryology Authority (HFEA).

The President indicated in his judgment that it would clearly be wrong to deprive a child and parents of a legal relationship because of an administrative error relating to incorrect paperwork. As far as he was concerned, the crucial issue was that each donor had provided written and informed consent to fertility treatment, as required by the law. He heard evidence at length from the parents, commenting that it was:

“…some of the most powerful, the most moving and the most emotionally challenging I have ever heard as a judge. It told of the enormous joy, both for the woman and her partner, to discover, in some cases after a hitherto unsuccessful journey lasting years, that she was pregnant, having taken a pregnancy test that they had scarcely dared to hope might be positive; the immense joy of living through the pregnancy of what both thought of from the outset as “their” child; the intense joy when “their” child was born. In contrast, it told of the devastating emotions – the worry, the confusion, the anger, the misery, the uncertainty, the anguish, sometimes the utter despair – they felt when told that something was wrong about the parental consent forms, that, after all they had been through, all the joy and happiness, [her] partner might not legally be the parent.”

The oral and written evidence presented to the President left him in no doubt that in each case, it was clear that the relevant consent to fertility treatment had been provided, even if not in the correctly prescribed manner. Declarations of parentage were accordingly made in favour of the 7 parents.

The President’s clear regard for the emotional turmoil and distress suffered by the parents contrasts starkly with his criticism of the “administrative incompetence” demonstrated by the fertility clinics. As a postscript to his judgment, he made a series of recommendations to the fertility clinics to avoid future repetition of the mistakes inflicted upon the 7 parents. However, he feared that given the number of fertility clinics in the UK (over 100), it was more than likely that the 7 parents he had dealt with were “only the small tip of a much larger problem.”


A Stranger to Charity? The case of Ilot v Mitson

The Inheritance (Provision for Family and Dependants) Act 1975 gives the court the power to make orders where the deceased individual failed to make reasonable financial provision to a dependant upon their death. Claims under the Inheritance Act are often made by children of the deceased, or by surviving spouses. In deciding the outcome of such claims, the court must take into account competing interests. On the one hand, the court must consider that the deceased has the right to leave their assets to whomever they wish. On the other hand, the court can and should intervene when it is clear that the deceased has failed to make adequate financial provision (or failed to make any financial provision) for a dependant.

The recent case of Ilot v Mitson and Others highlights how the court exercises its discretion in deciding claims under the Inheritance Act. Mrs Melita Jackson died in 2004. Mrs Ilot was her only child. Sadly, Mrs Jackson and her daughter were estranged from 1978 onwards. Despite several attempts at a reconciliation between the parties, they remained estranged up until the death of Mrs Jackson.

In 2002, Mrs Jackson made a Will. Within this, she made no financial provision for Mrs Ilot, nor any provision for Mrs Ilot’s five children or her husband. The entirety of Mrs Jackson’s estate was left to various charities, including the RSPB and RSPCA. It was accepted by all involved that Mrs Jackson had not enjoyed any connection with the various charities during her lifetime. Unsurprisingly, Mrs Ilot made a claim under the Inheritance Act following the death of her mother.

By August 2007, Mrs Jackson’s estate was valued at £486,000. The circumstances of Mrs Ilot and her husband were extremely modest. They did not own a property and were renting. They had no savings. Their total combined annual income including state benefits was less than £19,500. Mrs Ilot was in her 50s and had no pension to look forward to upon retirement.

Following a hearing before a District Judge, Mrs Ilot was awarded £50,000. This sum was awarded to her on the basis that she had previously been living within her means and such an award, capitalised over time, equated to around £4000 per year. She appealed against that decision and the case eventually came before the Court of Appeal in July 2015.

The Court of Appeal agreed that the decision of the District Judge was unfair. They found that the District Judge had made an error in limiting his award purely because Mrs Ilot had been living within her means. The fact that Mrs Ilot was estranged from her mother and had no expectation of receiving anything from the Will should also be discounted. Moreover, they found that the District Judge had not considered that a capital sum of £50,000 awarded to Mrs Ilot would actually lead to a reduction in her state benefits. She would therefore be worse off under the order of the District Judge than if there had been no award in her favour at all.

The Court of Appeal noted that because Mrs Ilot was reliant on state benefits to supplement her income, the practical effect of any alternative award in her favour had to be carefully considered. In essence, the only real way to protect her ability to claim state benefits would be if she was awarded enough capital to enable her to purchase a property for herself and her husband. The Court of Appeal awarded her £143,000 to purchase a property as a result. They also gave her the option of claiming a further capital sum of £20,000, should she wish to do so. Claiming such a sum would impact on what she received by way of state benefits but it was down to her as to whether she wanted to make that decision.

If you are worried over the terms of your own Will, or believe that you may have a claim under the Inheritance Act, we are here to help.