Kettering General Hospital NHS Foundation Trust v C & Anor

Anticipatory declarations concerning an unborn child are available under the High Court’s inherent jurisdiction, but they are rare and exceptional. An application made without notifying or involving a parent must be shown to be necessary and proportionate, with compelling reasons for such an exceptional procedure. The criteria governing removal of a child without parental involvement apply with equal rigour. The court must balance the parent’s rights under Articles 6 and 8 of the European Convention of Human Rights against the child’s rights and welfare. Where immediate treatment is essential and delay would materially increase the risk of serious, lifelong harm, those criteria may be satisfied.

The Trust applied for anticipatory declarations concerning the medical treatment of an unborn child. The mother was HIV positive, had declined antiretroviral treatment during pregnancy and was considered at significant risk of transmitting HIV to the child. The proposed treatment needed to begin immediately after birth, preferably within four hours, to maximise its preventive effect.

The application was made shortly before a planned caesarean section and without notice to the mother. The central issues were whether the court had jurisdiction before birth, whether the application could properly proceed in the mother’s absence, and whether the evidence established the exceptional, necessary and proportionate circumstances required for the declaration.

1. Jurisdiction. The application was properly founded on the High Court’s inherent jurisdiction. The local authority had no power to intervene without a court order. Because the child remained en ventre sa mere, the court had no jurisdiction to make an order under the Children Act 1989 or under its wardship jurisdiction. The Mental Capacity Act 2005 and the Court of Protection were likewise inapplicable. The mother’s views, although contrary to medical opinion, did not rebut the presumption that she had capacity to decide for herself.
2. Parental participation and proportionality. The mother’s rights under Articles 6 and 8 of the European Convention of Human Rights required full involvement in planning the birth and postnatal care, but those rights were not absolute. Without-notice proceedings could be Convention-compliant where carefully assessed alternatives were inadequate and the interference was necessary and proportionate.
3. Exceptional threshold. The criteria governing removal of a child without parental involvement applied with equal rigour to an application directly engaging parental rights before birth. The Trust therefore had to establish compelling reasons, an overriding necessity and proportionality. The application was an exceptional procedure and should ordinarily have been brought earlier so that the issues could be properly ventilated.
4. Application. The evidence established a high viral load, uncertainty about compliance with treatment, a real possibility of maternal withdrawal of consent after birth, and a narrow clinical window in which treatment could prevent an established infection. Immediate treatment was plainly in the baby’s best interests. The exceptional criteria were satisfied and the anticipatory declaration was granted.