Unborn Child: Rare Anticipatory Declaration

31 January 2023

An application founded in the Inherent Jurisdictional powers of the High Court for a rare anticipatory declaration in relation to an unborn child was heard before Hayden J on 23 January: Kettering General Hospital NHS Foundation Trust v C & Anor [2023] EWFC 12

C was 37 weeks pregnant, HIV positive (as a result of needle contamination during routine childhood vaccinations in a foreign country) and had declined anti-retroviral treatment during the course of her pregnancy. It was believed that the child may well be born HIV positive.

A caesarean section was planned for 24 January 2023 and the application was intended to secure the administration of anti-retroviral medication to the baby, commencing immediately upon birth and to continue for a period of 28 days. It was critical to the prospects of success that the treatment was commenced within four hours of birth.

The jurisdictional basis of the application struck the court as a paradigmatic example of both the parameters and reach of the Inherent Jurisdiction. The Local Authority, which was present and represented at the application, had no power to intervene without Court order.

As Munby J emphasised[1] the Court was not concerned with any jurisdiction relating to the welfare of a child. The child remained env entre sa mere and, accordingly, the Court had no jurisdiction to make any order either pursuant to the Children Act 1989 or under its wardship jurisdiction.[2]

It was also important to state that no jurisdiction arose under the Mental Capacity Act 2005 in the Court of Protection. The fact that C’s views in relation to the proposed treatment may be entirely out of step with received medical opinion did not challenge, and certainly did not rebut, the presumption that she was capacitous to take the decision herself.

The court was required on this occasion to consider an application made in the absence of C. It was elementary that C had rights, pursuant to Arts. 6 and 8 of the European Convention of Human Rights, to be fully involved in the planning both for the birth of her baby and the baby’s postnatal care.

Although these principles were reflected in the ECHR case law, Art. 6 and 8 rights were not absolute rights and required to be balanced against other competing rights and interests. Without notice applications in this sphere had been endorsed as compatible with the Convention in a number of cases.

The identifiable risks were stark and to some degree complex:

• Based on the history, it was possible that C may simply not co-operate with the birth plan at all;
• It seemed unlikely that C had been taking the retroviral medication in the period leading up to her birth, thus increasing the risk of infection in labour;
• C had a heavy viral load, a poor immune system and had not really ever taken anti-retroviral medication at any stage since her initial infection. Accordingly, there was risk that her baby would already have been infected during the course of her pregnancy. These last two factors rendered it necessary for the baby to have retroviral medicine almost immediately on birth in order to have the best chance of becoming HIV negative. Time was therefore of the essence.
• There was a later risk that C’s initial cooperation with the baby’s medication may be withdrawn if she considered the baby to be sick.

At the time of the application C was in hospital being prepared for her caesarean. It was obvious, given the nature of the treatment involved and the importance of timing, that it could only be achieved by prospective declaration.

Towards the end of counsel’s submissions, the Official Solicitor indicated that if the court considered that the “exceptional” criteria identified in the case law were met they would not press against it.

The court was entirely satisfied that the circumstances of the case did meet those criteria. The fact that the baby may be able to live with HIV did not mean that he should; it was wholly contrary to his best interests.

The doctors and medical team were entirely right to identify the immediate medical treatment as an imperative which established a secure basis for what remained an exceptional declaration.

Postscript: As the court was concluding its judgment it was notified of the birth of a baby boy who was doing well. Both parents were expressing clear consent to the 28-day treatment regime.

[1] Bury Metropolitan Borough Council v D [2009] EWHC 446 Fam

[2] Re F (In Utero) [1988] Fam 122