Manchester University NHS Foundation Trust v PP

The High Court has no jurisdiction to make a welfare decision for an unborn child who has no legal personality. An application concerning proposed testing or treatment after birth cannot acquire that jurisdiction merely because it is framed as an anticipatory declaration that the proposed care is lawful. A foetus has no independent legal rights against which the mother’s rights can be balanced. Any interference with the mother’s Article 8 rights must therefore be justified by the ordinary requirements that it be in accordance with the law, necessary and proportionate. The welfare decision may be made once the child is born and has legal personality.

A Trust issued an urgent Part 8 claim concerning a pregnant woman who repeatedly declined screening for HIV, hepatitis B and syphilis. It sought declarations that, after the child’s birth, umbilical cord blood or the baby’s blood could be tested and that further investigations and treatment could be undertaken if indicated.

The Trust relied on the serious consequences of delayed treatment and evidence that the mother might have an undiagnosed blood-borne virus. The central issue was whether the court had jurisdiction, before birth, to make what was substantively a welfare decision for the child when born.

1. Jurisdiction. The application was adjourned. The court held that it had no jurisdiction to determine, while the child remained a foetus, what should happen to the child after birth. The principle in In Re F (In Utero) [1988] Fam 122 was binding: an unborn child has no legal personality and the court cannot exercise a welfare jurisdiction in respect of it.
2. The court was being asked in substance to consent to medical treatment on the basis of the baby’s best interests. Calling the relief an anticipatory declaration of lawfulness did not alter its substance. The court would not circumvent the established principles by reframing a welfare decision.
3. The mother’s Article 8 rights were engaged because testing would disclose her health status. Any interference had to be necessary, proportionate and in accordance with the law. The court could not balance those rights against independent rights of the foetus, which had none. The absence of a party, guardian and appeal mechanism for the foetus created a further difficulty.
4. The court gave provisional observations on welfare. The evidence indicated a real risk of serious harm from an undiagnosed infection, while testing posed little or no risk to the baby and was time-critical. Those observations were not a concluded welfare determination. The issue was to be decided after birth, when the child acquired legal personality.
5. Short-form service was approved. The application was reserved to the judge, and the Trust was directed to issue a C66 application. On birth, the child would become a respondent automatically; CAFCASS was to appoint a guardian and the matter was to be brought before the court urgently. Following the birth on 27 March 2025, consent to testing was given as overwhelmingly in the baby’s best interests.