Case No. FD25F00020 - [2025] EWHC 783 (Fam)

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.

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).

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.

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.

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.

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.

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.

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.

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.

I conclude I have no jurisdiction to determine what should happen to the foetus when born.