C (A Child), Re

Where the court’s jurisdiction is invoked in relation to a child’s medical care, the child’s welfare is paramount. A responsible and devoted parent’s views must receive due weight, but parental autonomy is subject to the welfare principle and cannot prevent the court from reaching and giving effect to its own independent judgment.

That principle applies where a medical test is sought to establish the child’s medical status. The court may order testing where knowledge of the child’s condition is important to proper care, even if the parents reject prevailing medical opinion and regard testing as an unwarranted interference.

The parents sought permission to appeal from an order made by Wilson J in the Family Division requiring their infant daughter to attend hospital for testing for HIV. The mother was HIV positive, the father was HIV negative, and the parents had declined testing and medical treatment because they rejected the prevailing medical evidence concerning HIV.

The medical evidence before Wilson J indicated a significant risk that the child was infected and that knowledge of her status was important to appropriate treatment. The central issue before the Court of Appeal was whether the judge’s exercise of discretion in ordering the initial test disclosed an arguable basis for appeal.

1. Application refused. The Court of Appeal unanimously refused permission to appeal. The order requiring the child to be tested was continued until further order of the High Court.
2. The parents’ conduct and their strongly held views were not determinative. The question was whether the child’s welfare required testing, not whether the parents were responsible or irresponsible, nor whether the court should vindicate parental rights.
3. Under section 1(1) of the Children Act 1989, the child’s welfare was paramount. The space in which parental decisions are ordinarily respected existed subject to that statutory principle. A court exercising its jurisdiction had to make an independent and objective judgment, giving due weight to the views of devoted and responsible parents but giving effect to its own judgment where necessary.
4. The issue was the acquisition of knowledge about the child’s medical status, not an order for treatment. The proposed test involved little intrusion into the child and was important because ignorance of her condition could lead either to unnecessarily aggressive treatment or to inadequate treatment.
5. The Court accepted the medical evidence that the child faced a substantial risk of HIV infection and that testing would enable those responsible for her care to make informed decisions. Wilson J had carefully evaluated the competing arguments and the expert evidence. His findings on the medical issues were unassailable, and any appeal would have no prospect of success.

• Court of Appeal (Civil Division): permission to appeal from the decision of Wilson J was refused. The order requiring HIV testing continued until further order of the High Court.