The court’s jurisdiction to make anticipatory declarations for treatment on behalf of the unborn child

Background

An important and helpful judgment has been published - Manchester University NHS Foundation Trust -v- PP [2025] EWHC 783 (Fam) - following an application brought by Manchester University NHS Foundation Trust (the Trust) in relation to the testing of an unborn child for blood borne viruses (BBVs), including HIV, upon birth. The healthcare team at Hill Dickinson represented the Trust.

PP was 32 years old and 38 weeks pregnant. She had repeatedly declined to consent to routine screening of Hepatitis B, HIV and syphilis (referred to collectively as blood borne viruses – BBVs – in the Judgment) during pregnancy.  PP had previously presented in hospital with symptoms potentially indictive of a BBV, however without further testing this could not be confirmed. There was therefore concern that a BBV could be transmitted to her baby. 

In the absence of antenatal testing of the mother, the newborn baby’s blood or cord blood could be tested for BBVs upon delivery. However, PP confirmed she would not consent to such testing on the baby’s behalf. Testing was indicated within 30-60 minutes of birth and there was a 4-hour window for antiretroviral treatment to give the baby the best chance to avoid developing HIV (if the test was positive), albeit some benefit from treatment may still be derived up to 72 hours post birth. Therefore, the Trust considered it was necessary to ask the court to make decisions about testing (and if necessary, treatment) of the baby in advance of its birth. 

The Law

Recognising that the baby had no legal personality until birth, and therefore the court had no jurisdiction to make welfare decisions under the Children Act 1989, the application was originally brought as a Part 8 claim, seeking anticipatory declarations that, upon the birth of the child, it was lawful for the Trust to test (and if necessary, treat) the baby for BBVs including HIV. No application was made in relation to PP’s antenatal care, it being accepted that she had capacity to refuse testing and there was no legal basis upon which to override her consent.

This case grappled with difficult legal and ethical principles, examining case law on the legal standing of the foetus and anticipatory declarations. 
 
The Trust relied on the case of Kettering General Hospital NHS Foundation Trust -v- C & Anor [2023] EWFC 12, which was similarly an application for anticipatory declarations that it was lawful to test and treat the baby for BBVs upon birth. In Kettering – unlike PP – the Trust sought to withhold the treatment plan from the mother (who was not on notice of the application). In that instance, Mr Justice Hayden made the anticipatory declarations sought prior to the birth of the baby.

However, in PP, Mr Justice McKendrick KC was concerned that this conflicted with longstanding principles and authorities about the legal standing of the foetus. He considered, in particular, the Court of Appeal case of Re F (In Utero) [1988] Fam 122, which was an application by the local authority to make the child a ward of the court while still a foetus. In that case the court refused the application and concluded: 

"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… 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 is most undesirable that this should occur… The foetus cannot, in English law, in my view, have a right of its own at least until it is born and has a separate existence from its mother”.

Similarly, in the case of Heilbron J. in C. -v- S. [1988] ~ Q.B. 135, which was an attempt by a father to prevent the mother of his unborn child having an abortion, the court held: 

"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… In other words, the claim crystalises upon the birth, at which date, but not before, the child attains the status of legal persona and thereupon can then exercise that legal right”. 

McKendrick J accepted that the orders sought in Re F were not the same as the orders sought in PP, and that Re F was heard in January 1988 before the coming into force of the Children Act 1989, however, he noted: “the important issues of principle are however binding on me”.

The decision of Munby J in Bury MBC -v- D [2009] EWHC 446 (Fam) was also considered, which was a case where 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. However, the court was not asked to make any welfare decisions on behalf of the unborn child and therefore it was of limited application in PP.

Jurisdiction decision 

McKendrick J considered this to be a difficult case which raised, as he put it in the judgment, “profound ethical issues including the rights of mothers, the right of an unborn foetus and matters of women’s reproductive health… issues of human rights both for the mother and the child, when s/he is born”. 

Ultimately, he concluded that the unborn child did not have any legal personality – “it is part of the mother’s body and does not have independent rights” - and that he was bound by Re F. In his view, this could not be overcome by framing the order as an anticipatory declaration, as Hayden J had done in Kettering. McKendrick J stated:

"…with some regret, I conclude, there is no jurisdiction to make a welfare decision for this foetus when s/he is born…
I conclude I have no jurisdiction to determine what should happen to the foetus when born.”

Importantly - and powerfully - McKendrick J recognised that he may otherwise be “opening a can of worms”, noting:

"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.”

It was also recognised that, at the time of the Part 8 application, the child was not a party, could not have a Guardian appointed, and could not appeal the decision, yet would be bound by it.  

‘Provisional’ welfare analysis

Interestingly however, having agreed to hear oral evidence and submissions as to the welfare decision, McKendrick J went on to provide a “provisional welfare analysis” prior to the baby’s birth, given the urgency for the matter to be determined post-birth. In doing so, he concluded:

"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…. 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. …. 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.”

Welfare proceedings post-birth

Helpfully, McKendrick J made a number of directions which enabled this matter to be determined swiftly upon the birth of the child. This may act as guidance for how to approach similar cases in the future.

McKendrick J adjourned the Part 8 application, directed the Trust to immediately file a C66 application (for welfare orders for the child under the High Court’s inherent jurisdiction) and serve Cafcass with the application, and made orders that the child would automatically become a party to those proceedings upon birth without further order. He also reserved the matter to himself, even if the child was born out of hours. 

As noted in the postscript to the judgment, this approach enabled a hearing to be convened (with the Children’s Guardian in attendance on behalf of the child) within an hour of the baby’s birth. Having reviewed his provisional welfare analysis and heard further submissions on behalf of the Trust and the child (the mother not being in attendance or represented), McKendrick J made an order that it was in the child’s best interests to be tested (and if necessary, treated) for BBVs immediately.  

Commentary 

This case re-confirms the well-established legal standing of the foetus and provides clarity as to the court’s jurisdiction to make anticipatory declarations on behalf of the unborn child following Kettering.

It also highlights the procedural difficulties in bringing such applications, where urgent tests or treatment are indicated upon birth. Absent the earlier Part 8 proceedings, which enabled oral evidence and submissions to be heard prior to the birth of the child, it would have been extremely difficult for the court to determine the application within the required 4-hour window for HIV treatment post-birth. It would almost certainly have narrowed the scope of the evidence heard at such a hearing, putting the court and parties at a disadvantage. Importantly, the earlier Part 8 proceedings also enabled the child’s mother, PP (represented by Counsel on a pro bono basis) to attend the hearing and put questions to the Trust’s witness, which would not have been possible in the immediate aftermath of the birth of her child. 

Such cases are novel and exceptional, and the procedural approach to be taken will be fact specific. It is recommended that legal advice is sought at an early stage to consider the legal frameworks which may be available to resolve disputes about treatment prior to and upon the birth of a child.