Manchester University NHS Foundation Trust v PP [2025] EWHC 783 (Fam)

[2025] EWHC 783 (Fam)Case No FD25F00020
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 25/03/25
Before
MR JUSTICE MCKENDRICK
Between
MANCHESTER UNIVERSITY NHS FOUNDATION TRUSTApplicantPPRespondent
Ms Katie Scott (instructed by Hill Dickinson) for ApplicantMr Adam Fullwood (instructed by Advocate) for RespondentHearing Hearing date: 25 March 2025
Approved Judgment.............................This judgment was delivered in public but a reporting restrictions order is in force. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family and details of the treating clinicians must be strictly preserved. All persons, including representatives of the media and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.Mr Justice McKendrick:Introduction
[1]I will now give a short ex tempore ruling. I am sitting today to consider a Part 8 claim brought in very urgent circumstances by the applicant Trust. The only respondent is PP. It is important I say that as this is a CPR 8 claim, I am sitting in public, but I have made a Reporting Restriction Order (RRO) and gave reasons for doing so. I have seen a communication from the Guardian Newspaper, and a reporter from the Press Association is here - Mr Park. He did not make any submissions in respect of the RRO. Balancing the competing Article 8 and 10 ECHR rights, I have made an order that PP cannot be identified and nor can her child when s/he is born. I have also made an order that there can be no naming at this stage of the treating clinicians.[2]The note of the judgment was helpfully produced by the legal teams immediately after the hearing (given the urgency) and approved (in accordance with the guidance in Shirt v Shirt [2012] EWCA Civ 1029 (see paragraph 33)). It was subsequently amended to deal with corrections and anonymisation.[3]This application came into the urgent applications list fairly late yesterday afternoon. It was referred to me. I was concerned that the mother had no representation and inquired what had taken place to ensure the mother could be represented. I was told that when the mother was told about the application, she left the hospital to seek representation before she could be served with the papers. For that reason it was not possible to hear the matter yesterday. I therefore listed the matter before me at 12 today. The mother had been served with the papers in the interim.[4]I began hearing this matter at 12 pm, after I had heard two other matters. At the hearing which commenced at 12 pm, I dealt with issue of the RRO. During the short hearing the mother said that she had not felt the baby move for some time and so was advised by the treating clinician that she should go to the hospital to be checked. This she did. We resumed the hearing at 14.30 by which time the mother was in hospital and I am told the mother and baby were well.[5]That additional time had allowed the mother to obtain legal representation. I am indebted to Mr Fullwood for agreeing to act pro bono for the mother, instructed by Advocate.[6]The hearing started at 15.35. I heard evidence from Professor CC. She was questioned by Ms Scott, Mr Fullwood and answered some questions that concerned me. PP did not wish to give evidence, although she was in attendance at the hearing. She said that she was feeling too anxious.[7]In an ideal world there would be more time to consider legal and ethical issues that arise in this case, but this is not an option. The mother is going to give birth at any time, and so the determination of this application cannot wait.[8]The mother is 32 years old and pregnant with her fifth child. She is at 38 weeks. Her estimated date of delivery is 3 April 2025. As she has had a number of children already, there is a concern that she may give birth early. The current plan is that she will have a scan on Wednesday and be induced on Thursday. However she may give birth overnight.[9]The background to this application is that the mother has refused to consent to screening for blood borne viruses (BBVs), namely HIV, hepatitis B (HBV) and syphilis. The applicant has no record of her having had screening in her previous pregnancies. The applicant says there is a high prevalence of HIV in Manchester – every 6 out of 1000 people are infected. That is against a national prevalence of 2 out of every 1000 people.[10]More pertinent however in my view, is that the mother presented at hospital with Kikuchi Lymphadenitis which may indicate that she has HIV or even AIDS. The applicant considers that there is a real risk that she is infected with HIV.[11]Their application is in respect of a child who will soon be born. I am told that it is imperative that when the baby is born, it is investigated for these BBVs.[12]The results from both the new born baby’s blood and the cord blood, tests maternal antibodies to the BBVs not the child’s. Therefore, if the result is positive it does not mean that the child is infected. If the cord blood tests positive for HIV it will reveal the mother’s infection status. If the mother has HIV, then there is a risk that the baby does. There is a 4 hour window to get antiretroviral treatment into the baby to give the baby the best chance of avoiding developing HIV. The treatment is most effective within 24 hours. It has no effect after 72 hours.[13]If the cord blood is HBV positive, the baby will need treatment within 24 hours and if the cord blood tests positive for syphilis, treatment should ideally be provided within 12 hours. What the court is being asked to deal with is whether there should be testing and treatment of the baby, 4 hours after baby is born.[14]There is a question as to why it is that this application was issued only yesterday afternoon but there is no time to investigate that matter now.

Background

[15]The mother is 32 and from a country in the Middle East. I have very little background about her, but I understand she has lived in the UK for some time. She has 4 children who are all in her care. They were born at various dates all in the last ten years She is of Muslim faith. I have made inquiries of the father and I am told that he has had no involvement and does not wish to be involved.[16]In August 2024 she presented to hospital and was investigated and found to have painful neck swellings and temperature spikes. By the end of August the working diagnosis for this illness was Kikuchi lymphadenitis. This is a condition that can be seen in people with HIV. There was an antenatal booking on 12 September 2024. As a routine part of the booking, BBV tests offered. These were declined. On 1 October 2024 she attended another antenatal booking. Again she did not consent to BBV screening. She was spoken to again in November 2024 and then the issue was raised in December at a meeting on the fifth with Professor CC, at which she refused consent for BBV for herself and in respect of the cord blood. A letter was sent to her explaining the importance of testing and she again declined screening in January 2025. She attended hospital with signs of an acute viral illness and again declined BBV screening. She made it clear on 5 March 2025 that she was upset and anxious about being continually asked about BBV screening.

The Evidence

[17]For the purposes of this application I have a very helpful witness statement from Professor CC. She has been a consultant physician for 22 years. She has established a specialist antenatal service for those living with HIV. She provides care routinely in this area. She is to my mind, a considerable expert in this narrow specialist field.[18]Paragraph 9 of her witness statement summarises the situation. She says this “Both the clinical team and I involved in [PP]’s care are increasingly and considerably concerned that [PP] may have an undiagnosed infection, possibly HIV, Hepatitis B or syphilis, which will put her baby at risk of infection, which could be prevented with appropriate management. We are of the view that the baby needs to be tested urgently for these conditions upon delivery and that [PP] has a heightened risk profile as detailed below, meaning this baby is particularly at risk.”[19]She goes on to set out her involvement with the mother and sets out the chronology and the mother’s persistent declining of BBV screening. She notes the working diagnosis of Kikuchi lymphadenitis. She is plainly concerned about the risk of the mother having an undiagnosed BBV infection.[20]Sadly she has had experience of situations where mothers have declined testing and where their children have contracted HIV. She has had experience of one child who died where there had been no testing.[21]In terms of the jurisdiction I am exercising today, she is clear that the mother has capacity to make decisions regarding her own medical treatment and to exercise her parental responsibility. She sets out the risks to the unborn baby if it has an undiagnosed BBV. She makes it clear that the complications are potentially fatal, and makes the point that all BBV infections are preventable with appropriate testing and treatments.[22]She goes on to say that for any potential HIV infection, the chance to stop transmission in utero has been lost, so it is even more important to take steps to reduce the risk now. She tells me that testing the cord blood tests for maternal antibodies, and that treatment for HIV must be given ideally within 4 hours and not later than 72 hours after birth. Treatment for HBV must be given within 24 hours of birth. She is clear that timely testing and treatment is essential.[23]She states that the mother is opposed to BBV testing and has repeatedly declined it. She states that the treatment options which include testing for BBVs via the cord blood, is non invasive and poses no risks to the child. She makes the point that one of the options is to do nothing, but this could mean an infection for the baby which may have fatal consequences. She sets out a table of the options with all the risks and benefits against them.[24]She repeats the urgency of the matter and the fact that the treatment for HIV must take place within 4 hours of birth. She states that rightly, the plan must involve the mother.[25]Professor CC gave oral evidence. Mr Fullwood’s essential line of questioning (which was undertaken with skill) was that the evidential basis to suspect that PP had a BBV was limited, as while there was a working diagnosis of Kikuchi lymphadenitis there was no confirmed diagnosis of Kikuchi lymphadenitis, no diagnosis of any BBV and no other non-clinical matters applied to PP (such as drug use or sex work). I remind myself that in her evidence Professor CC had said that PP did have raised infection markers (such as CR-P), which could be consistent with a BBV but also with a number of other conditions.[26]She also stated that there was some evidence that patients who repeatedly refused tests may be positive for BBV. She accepted there was no evidence of any safeguarding issues in respect of PP’s other 4 children. She was clear that the BBV screening tests posed no risk to the child. She stated that the local authority was aware of the matter but was not clear what the safeguarding issues are or what steps had been taken. She also told me that a mother breast feeding with HIV increases the risks of transmission to the baby. I am clear that the safe-guarding issues in this case need to be considered fully and soon.[27]I was referred to various academic journals, which for reasons of time, I cannot go into. The overall evidence and her assessment of the mother and what she gathers from academic articles, is that there is a real concern that the mother has an undiagnosed BBV, the baby is therefore at risk of infection and in order to reduce the risk the baby needs to be tested as soon as possible and given treatment within 4 hours of birth.[28]The mother was invited to give evidence but declined. I understand she is very anxious and concerned. These proceedings should have been brought earlier. I afforded her as much time as possible to get representation. Her case is that there is not enough evidence that she has a BBV for her baby to be tested.

The Law

[29]Ms Scott in her helpful grounds and order asks me to make the following[30]I am asked under the Civil Procedure Rules, Part 8 to make a declaration regarding a future course of conduct. I am not being asked to make orders under the Children Act 1989 or the Inherent Jurisdiction/Wardship Parens Patriae jurisdiction, nor am I asked to make orders in the Court of Protection or pursuant to the Court’s inherent jurisdiction in respect of vulnerable adults. I am asked to make a declaration about the lawfulness of the proposed treatment.[31]I must turn to the case law. The first case I am asked to look at is In Re F (In Utero) [1988] Fam 122. This was an application brought in relation to an unborn child where the local authority sought to make the child a ward of the court while still a foetus. It was heard by Hollings J and went to the Court of Appeal. I do not have time to do justice to the important issue to which the judgment gives rise, but picking up the judgment of May LJ at138 D- E, he said this: Even though this is a case in which, on its facts, I would exercise the jurisdiction if I had it, in the absence of authority I am driven to the conclusion that the court does not have the jurisdiction contended for. I respectfully agree with the dictum from the judgment of Sir George Baker P. in the Paton case. I also agree with the comments made by E Heilbron J. in her judgment in C. v. 5. [1988] Q.B. 135, 140, which I have also quoted earlier in this judgment Secondly, I respectfully agree with Hollings J. in this case that to accept such jurisdiction and yet to apply the principle that it is in the interest of the child which is to be predominant is bound to create conflict between the existing legal interests of the mother and those of the unborn child and that it is most undesirable that this should occur. Next, I think that there would be insuperable difficulties if one sought to enforce any order in respect of an unborn child against its mother, if that mother failed to comply with the order. I cannot contemplate the court ordering that this should be done by force, nor indeed is it possible to consider with any equanimity that the court should seek to enforce an order by committal.[32]I turn next to the judgment to of LJ Balcombe at page 140 A-D and G-141A The child is not necessarily a party to the proceedings. Of particular significance in the present case is that there is no recorded instance of the courts having assumed jurisdiction in wardship over an unborn child. Indeed, the whole trend of recent authority is to the contrary effect. In B Paton v. British Pregnancy Advisory Service Trustees [1979] Q.B. 276, Sir George Baker P. refused an application by a husband for an injunction to restrain his wife from having an abortion. In the course of his judgment Sir George Baker P. said, at p. 279:
"The first question is whether this plaintiff has a right at all. The foetus cannot, in English law, in my view, have a right of its own at c least until it is born and has a separate existence from its mother. That permeates the whole of the civil law of this country (I except the criminal law, which is now irrelevant), and is, indeed, the basis of the decisions in those countries where law is founded on the common law, that is to say, in America, Canada, Australia and, I have no doubt, in others. For a long time there was great controversy whether after birth a child could have a right of action ^ in respect of pre-natal injury. The Law Commission considered that and produced a Working Paper No. 47 in 1973, followed by a Final Report (Law Commission Report, No. 60 (Cmnd. 5709)), …….. To the like effect is the judgment of Heilbron J. in C. v. S. [1988] ~ Q.B. 135. This was another attempt by a father to prevent the mother of his unborn child having an abortion, but in this case the unborn child was named as the second plaintiff, suing by his father and next friend (the first plaintiff). On this aspect of the case Heilbron J. said, at p. 140: "
The authorities, it seems to me, show that a child, after it has been born, and only then, in certain circumstances, based on he or she having a legal right, may be a party to an action brought with regard to such matters as the right to take, on a will or intestacy, or for damages for injuries suffered before birth. In other words, the claim crystallises upon the birth, at which date, but not before, the child attains the status of a legal persona, and thereupon can then exercise that legal right. This also appears to be the law in a number of Commonwealth countries ………… Heilbron J then cited with approval the last portion of the passage of the judgment of Sir George Baker P. in Paton v. British Pregnancy C Advisory Service Trustees [1979] Q.B. 276 and continued, at p. 141:
"In his reply, Mr. Wright's final position was summarised in this way: (1) he no longer relied on the numerous succession cases but he wished to retain some reliance on the position of the unborn child in Thellusson v. Woodford (1799) 4 Ves. 227; (2) he did not claim that a child had either a right to be born nor a right to life in D view of the terms of the Abortion Act 1967; but he maintained (3) the unborn child had a right to be a party because it was the subject of a threatened crime, that is to say, that of child destruction. If there was no such threat, then this claim too failed. In my judgment, there is no basis for the claim that the foetus can be a party, whether or not there is any foundation for the contention with regard to the alleged threatened crime, and I would dismiss the second plaintiff from this suit and the first plaintiff in his capacity as next friend."
[33]I then pick it up at page 143F Approaching the question as one of principle, in my judgment there is no jurisdiction to make an unborn child a ward of court. Since an unborn child has, ex hypothesi, no existence independent of its mother, F the only purpose of extending the jurisdiction to include a foetus is to enable the mother's actions to be controlled. Indeed, that is the purpose of the present application.[34]And next the judgment of Staughton LJ at 144 F: When the wardship jurisdiction of the High Court is exercised, the rights, duties and powers of the natural parents are taken over or superseded by the orders of the court. Until a child is delivered it is not, in my judgment, possible for that to happen. The court cannot care for a child, or order that others should do so, until the child is born; only the mother can. The orders sought by the local authority are not by G their nature such as the court can make in caring for the child, they are orders which seek directly to control the life of both mother and child[35]I accept the orders sought in Re F are not the same as the orders sought in this case. Re F was heard in January 1988 before the coming into force of the Children Act 1989.The important issues of principle are however binding on me.[36]I turn next to a decision of Munby J (as he then was) in Bury MBC v D [2009] EWHC 446 (Fam). This was an ex parte application brought in extreme emergency to conceal the information around a birth plan from the mother. At paragraph 6 Munby J holds: I am not concerned with the exercise of any jurisdiction directly concerned with the welfare of the child. The child is, as I speak, still en ventre sa mere and, accordingly, no court has jurisdiction to make any order under the Children Act 1989, nor (see In re F (In Utero) [1988] Fam 122) can the court exercise its inherent or wardship jurisdiction in respect of children.[37]Munby J held that it was lawful and not in breach of the mother’s article 8 rights to conceal the birth plan from her. He went no further and he made no welfare decisions.[38]I turn next to Kettering General Hospital NHS Foundation Trust v C [2023] EWFC12. The facts of that case are similar to the facts of this case. The application was for permission to withhold the birth plan from the mother and to carry out testing and treatment of the baby after birth. Paragraphs 16 and 17 cite In re F (In Utero) and Re D. Hayden J was principally focused on whether the test of necessity was met by not giving the mother the detail of the birth plan and the judgment sets out typically erudite reasons for making those orders. It is less clear to me the basis upon which the anticipatory declarations were made, but understandably Ms Scott relies on this decision. Factually Kettering is rather different as I am not dealing with withholding information from the mother, only the welfare of the child when born.

Analysis: Jurisdiction

[39]This is a difficult case which requires much greater time and thought and care than I can provide for in an urgent application. It raises profound ethical issues including the rights of mothers, the rights of an unborn foetus and matters of women’s reproductive health. It also raises issues of human rights both for the mother and the child, when s/he is born. As I have set out, and this is not in doubt as established in In Re F (In Utero), an unborn child does not have a legal personality. It is part of the mother’s body and does not have independent rights. That has been the settled status of the law for a long time, and no one says that is wrong. It is also established in a Court of Appeal judgment that I am bound by.[40]I am in essence being asked to provide the Court’s consent to the treatment plan on the basis that it is in the best interests of the baby to be tested for BBV and treated within 4 hours of birth if HIV is indicated. I am being asked to make a welfare decision. I can only consent if the treatment plan is in the child’s best interest. This is clear from established case law such as Aintree v James[2013] UKSC 67 (which although concerned with adults, also applies to children). The law is also set out most recently and clearly by Harrison J in the case of C (A child) (Life sustaining treatment)[2025] EWHC 413 (Fam).[41]The Trust are alive to the difficulties with this application, which is why Ms Scott says in her elegant submissions that I am not being asked to make a welfare decision about the foetus. Rather I am being asked to make anticipatory declarations that the care plan is lawful.[42]However in my view, what I am being asked to make in substance is a welfare decision. I am being asked to determine, whilst the child remains a foetus, the welfare of the baby when born. Munby J in the case of Re D,when he set out his anticipatory declarations, made it clear that the jurisdiction did not include the welfare of the child. His declaration is about withholding information from the mother. Ms Scott is asking the court to make a welfare decision about a foetus who has no legal personality. The foetus is not a party to this application.[43]PP’s Article 8 ECHR rights are fully engaged. Testing will reveal the status of her health. Such testing plainly amounts to an interference in her respect of a private life. This interference may amount to a violation. That depends on whether the interference is necessary, proportionate and in accordance with the law. I therefore cannot balance the rights of the foetus against the rights of the mother to justify an interference with the mother’s rights. The potential ‘rights’ engaged are those of the foetus, but I am bound by Re F and as such the foetus has no legal personality and no rights. It is therefore very difficult to balance the rights to justify an interference with the mother’s rights. Re-framing the question to consider anticipatory declarations does not, in my judgement, resolve this difficulty.[44]There is also a difficulty with the best interests welfare jurisdiction as the child is not a party, but the declaration would bind the child. The child does not have a Guardian (CAFCAS will not accept an invitation to act for a foetus) and as the foetus is not a party it could not appeal the decision.[45]If I conclude that I can make a declaration about a foetus that goes to the welfare of the child when born, I may, if I can put it this way at this late hour, be opening a can of worms. What other declarations would be sought by others in the future? Accepting jurisdiction to make welfare decisions for a foetus is fraught with some danger. In as much as I have digested the learning of Re F such a step would be for Parliament to decide not the courts. Care is necessary before determining such a jurisdiction exists, other than the circumstances that pertained before Munby J in Re D. It has the potential to undermine women’s reproductive rights.[46]Ms Scott seeks to bolster her argument by reference to the anticipatory declarations made in the Court of Protection. That does not assist me however, as P in the Court of Protection has rights which are protected both when capacitous and when incapacitous. There is not a read across from a capacitous P to a foetus.[47]Therefore, with some regret, I conclude, there is no jurisdiction to make a welfare decision for this foetus when s/he is born. I am not prepared to circumvent long established common law principles by dressing up a welfare decision to consent to medical treatment by re-framing the issues as an anticipatory declaration.[48]I conclude I have no jurisdiction to determine what should happen to the foetus when born.

Analysis: Welfare

[49]Notwithstanding my lack of jurisdiction, and given the urgency, I should say a little about the welfare issues involved. From the information provided to me, the welfare analysis is relatively straightforward. Prof CC’s evidence is clear – there is a risk that the mother has a BBV. The Trust cannot say definitely if this is so, but even if I assess that risk as being small or medium, it is a risk of very significant harm to the baby due to the effects of BBV on a newborn child. There would be almost no impact or risk to the child of checking the blood cord or even the blood of the baby. There will be no psychological or physical risks, but very many downsides if a blood test does not take place and essential treatment cannot be provided, giving the child risks of developing HIV, HBV or syphilis. The magnitude of that risk is set out in submissions and it is drawn from academic literature. At present I am clear this innocuous blood test is essential to the baby when born, to protect the baby from the symptoms of any serious illness.[50]The best interests analysis incorporates the article 8 rights, which would require me to balance the mother’s rights against that of the baby. However the mother has not put forward a good reason for the tests not to take place. If I have to carry out the balance the rights would come down on the side of the child. However, I am not persuaded I have a jurisdiction to make welfare decisions, even anticipatory declarations. Therefore I will not decide today what is in the best interest of the unborn baby, but will do so when the baby has been born and has a legal personality. It is highly likely my provisional welfare analysis will not evolve from what I have said today, but of course I have reached no concluded view. I encourage PP to reflect carefully on what she has heard and consider consenting to a test and treatment for her baby when born.

Decision

[51]I will make directions as follows:a. This application is adjourned.b. The court approves short form service on the respondent.c. This matter is reserved to me if available, even if pursued out of hours.d. The applicant shall issue a C66 form for consideration of the welfare of the child once born, forthwith.e. When the respondent’s child is born, (s)he will automatically become a respondent to these proceedings and to the C66 application without further order.f. CAFCASS High Court team are to appoint a guardian to the baby as soon as they are notified (s)he has been born.g. CAFCASS must be served with this order and the papers in this application.h. The applicant is to inform the respondent’s legal team, CAFCASS and the Court when the respondent goes into labour.i. Costs in the application.[52]I thank solicitors and counsel for their adroit assistance and ask an order is drafted in these terms. Postscript On 27 March 2025 PP was delivered of her baby. A hearing took place before me within an hour of the baby’s birth. The baby’s guardian was able to attend the hearing and instruct a solicitor to represent the baby’s interests. Consent to test was provided as being overwhelmingly in the baby’s best interests.

order

IT IS DECLARED PURSUANT TO THE COURT’S INHERENT JURSIDICTION THAT: 1 On the birth of the respondent’s child, it is lawful for the applicant to test the umbilical cord blood or alternatively the baby’s blood for HIV, hepatitis B and syphilis. 2 In the event that the blood tests positive for any of these blood borne viruses, it is lawful for the applicant to carry out further investigations on the baby, and provide treatment to the baby, in accordance with the care plan dated 24 March 2025.

Cited in 1 later judgment