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

Fecha: 25-Mar-2025

The Law

29.

Ms Scott in her helpful grounds and order asks me to make the following 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.

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.