Manchester University NHS Foundation Trust v PP

Factual and Procedural Background

This opinion concerns an urgent Part 8 claim brought by Applicant Trust relating to a pregnant woman, referred to as the Respondent, who refused consent to screening for blood borne viruses (BBVs) including HIV, hepatitis B, and syphilis. The Respondent is at 38 weeks pregnant with her fifth child and has a working diagnosis of Kikuchi lymphadenitis, a condition potentially linked to HIV or AIDS. The Applicant Trust seeks declarations permitting testing and treatment of the baby immediately after birth to prevent infection. The Respondent initially lacked legal representation but was later represented pro bono. The court made a Reporting Restriction Order to protect the identity of the Respondent, her child, and treating clinicians. The hearing was conducted urgently due to the imminent birth and the necessity of timely treatment for the child if infected.

The Respondent has persistently declined BBV screening throughout the pregnancy despite medical advice and concern from the clinical team. The Applicant Trust contends that testing cord blood or the newborn’s blood within hours of birth is essential to enable timely treatment, which is critical to reduce the risk of transmission and serious harm to the child.

The court was asked to make declarations regarding the lawfulness of testing and treatment of the newborn but was not asked to make orders under the Children Act 1989 or other statutory jurisdictions. The Respondent’s Article 8 rights under the European Convention on Human Rights (ECHR) were engaged, as testing would interfere with her private life.

Following the birth of the child, a subsequent hearing was held within an hour, and consent to testing was provided as being overwhelmingly in the child’s best interests.

Legal Issues Presented

1. Whether the court has jurisdiction to make anticipatory welfare decisions or declarations regarding testing and treatment of an unborn child immediately after birth.
2. Whether it is lawful to test the newborn for blood borne viruses and provide treatment without the mother's consent, balancing the rights of the mother and the child under Articles 8 and 10 of the ECHR.
3. The extent to which the unborn child possesses legal personality or rights that the court can protect prior to birth.
4. The application of established case law concerning the court’s jurisdiction over unborn children and the limits of anticipatory declarations.

Arguments of the Parties

Applicant Trust's Arguments

• The Trust seeks a declaration that it is lawful to test the newborn’s cord blood or blood for HIV, hepatitis B, and syphilis immediately upon birth.
• If any tests are positive, the Trust requests authority to carry out further investigations and provide treatment in accordance with a care plan.
• The Trust emphasizes the urgency due to the narrow window for effective treatment (4 hours for HIV, 12–24 hours for other infections).
• The Trust relies on expert evidence from a consultant physician specializing in antenatal HIV care, who considers the mother to be at heightened risk of undiagnosed BBV infection.
• The Trust argues that testing and treatment are in the best interests of the child and that the tests are non-invasive and pose minimal risk.
• The Trust submits that the court can make anticipatory declarations about the lawfulness of treatment plans.

Respondent's Arguments

• The Respondent refuses consent for BBV screening, citing insufficient evidence that she is infected.
• She did not give evidence at the hearing due to anxiety but was represented by pro bono counsel.
• The Respondent challenges the evidential basis for suspecting BBV infection, noting the lack of confirmed diagnosis and absence of other risk factors.
• She asserts her Article 8 rights and privacy interests, opposing interference with her bodily integrity and private life.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully considered the competing rights of the mother and the unborn child under Articles 8 and 10 of the ECHR, as well as the established common law principles and statutory frameworks. It acknowledged the urgency due to the imminent birth and the medical necessity of timely testing and treatment to prevent potentially fatal infections in the newborn.

However, the court emphasized the longstanding legal position that an unborn child has no independent legal personality or rights separate from the mother. Drawing on the authoritative case law of In Re F (In Utero) and Paton, the court held that it lacks jurisdiction to make welfare decisions or anticipatory declarations concerning the unborn child. The court rejected the argument that it could circumvent this principle by framing the application as a request for anticipatory declarations rather than welfare orders.

The court noted the difficulties in balancing the rights of the fetus against those of the mother, concluding that only the mother’s rights can be considered at this stage. It also highlighted the procedural and ethical complexities, including the lack of a guardian or party representing the fetus and the potential implications for reproductive rights if jurisdiction were expanded.

Despite the lack of jurisdiction, the court acknowledged the compelling welfare considerations favoring testing and treatment of the newborn. The expert evidence established a real risk of BBV infection and the critical importance of timely intervention. The court encouraged the mother to consent to testing and treatment once the child is born.

Accordingly, the court adjourned the application and directed the Applicant Trust to issue a C66 application to consider the welfare of the child once born, at which point the child will acquire legal personality and be a party to proceedings. CAFCASS was directed to appoint a guardian for the child upon birth, ensuring representation and safeguarding of the child’s interests.

Holding and Implications

The court HOLDING was that it lacks jurisdiction to make welfare decisions or anticipatory declarations concerning the unborn child. It cannot authorize testing or treatment of the child prior to birth or without the child having legal personality.

The application was therefore adjourned pending the child’s birth. The court ordered that once born, the child will automatically become a party to the proceedings, and a guardian will be appointed to represent the child’s interests. The Applicant Trust must promptly issue a welfare application (C66) for consideration of testing and treatment after birth.

This decision preserves established common law principles regarding the legal status of the unborn and the limits of court jurisdiction. It balances respect for maternal rights and reproductive autonomy with the child’s welfare, to be addressed fully once the child has legal personality. No new precedent expanding court jurisdiction over unborn children was established. The immediate effect is procedural: the court will consider welfare issues and authorize treatment only after birth, ensuring proper representation and legal safeguards.