Region: Europe
Year: 1999
Court: Court of Appeal, Civil Division
Health Topics: Child and adolescent health, HIV/AIDS, Informed consent, Sexual and reproductive health
Human Rights: Right to bodily integrity, Right to family life
Tags: AIDS, Breast feeding, Child development, Children, Compulsory testing, HIV, HIV positive, HIV status, Infant health, Involuntary testing, Mandatory testing, Minor, Most-at-risk, Non-consensual testing and treatment, Non-evidence based treatment, Parental consent, Pediatric health, People living with HIV/AIDS, PLHIV, Transmission
C’s mother was HIV infected. C, who was born in April 1999 was breastfed by her mother despite concern that this increased C’s potential to become infected by HIV if she was not already HIV positive. The local authority sought a direction for a blood test to be carried out to test C’s HIV status after the parents refused and an order preventing C from being breastfed.
The Family Division found that, although the parent’s wishes were of the utmost importance, the welfare of the child was of paramount importance. The Family Division held that it could make an order for an HIV test to be carried out, but could not make an order preventing C from being breastfed, which would be impossible to enforce.
The parents appealed the decision, but disappeared prior to the Court’s decision.
[Adapted from INTERIGHTS summary, with permission]
The Court refused the parent's application for leave to appeal. It noted that the preponderance of medical information given in the lower court showed that testing and treatment were required to safeguard the health of the baby. Ultimately, the Court noted that the child would remain at risk without knowledge of its medical condition and that its welfare therefore demanded such test be conducted. The Court noted that the rights of the child were not subsumed by the rights of the parents.
"The issue before this court is an issue of knowledge. What is the position of this child? In my view, the child is clearly at risk if there is ignorance of the child's medical condition. The degree of intrusion into the child of a medical test is slight. The degree of intrusion into the family of taking the child to the hospital for a medical test would for most people be comparatively slight. The parents have magnified this into a major issue because they do not accept any of the premises upon which the tests will be carried out. But the welfare of the child is paramount." Page 4
"It does not matter whether the parents are responsible or irresponsible. It matters whether the welfare of the child demands that such a course should be taken and, as Evans L.J. was asking during this hearing in argument: Can it be in the child's best interests for the parents to remain ignorant of their own child's state of health? You only have to ask that question for most people to say no. We are not talking about the rights of parents. We are talking about the rights of the child." Page 4.