A rare order for a child in utero

Mary Welstead CAP Fellow Harvard Law School; Visiting Professor in Family law University of Buckingham

In 2023 Kettering NHS Trust applied for an anticipatory declaration for a child in utero to be treated with anti-retroviral medication immediately after birth. The respondent a Romanian woman was in hospital awaiting the imminent birth of the child. The woman had been opposed to medication of her child but had finally agreed to its administration. Nevertheless Hayden J granted the application in case she changed her mind again. Hayden J emphasised that his pessimism was not a criticism but merely an acknowledgment of the woman’s deeply embedded resistance to and anxiety about medication.

The judgment considered the exercise of the inherent jurisdiction the powers granted by a declaration the legal status of a child in utero and the limitations placed on the court with respect to mental capacity and medical decisions.  

The woman as a child had been vaccinated with infected needles and had contracted HIV.  She had declined treatment because of a bad reaction. Throughout her pregnancy she...