Re C (A Child) (HIV test)
| Jurisdiction | England & Wales |
| Judgment Date | 03 September 1999 |
| Date | 03 September 1999 |
| Court | Family Division |
Family Division
Before Mr Justice Wilson
Children - medical treatment - parents' wishes important but overridden
Where a local authority applied for an order that a baby be subjected to an HIV test notwithstanding the vehement opposition of her parents, there might be a rebuttable presumption that the united view of the parents was correct in identifying where the welfare the of the child lay.
Support for such a presumption was derived from section 1(5) of the Children Act 1989 which prohibited the court from making any order unless to do so would be better for the child than to make no order at all, and from article 8 of the European Convention on Human Rights (1953 Cmd 8969). In any event, the parent's views were important whatever the validity of the overlying grounds for them.
In the instant case, however, the overwhelming advantages of testing overrode the wishes of the parents.
Mr Justice Wilson so held in the Family Division when allowing an application by the London Borough of Camden for an order that a baby be subjected to a blood test with a view to determining whether she was infected with the HIV.
Mr Gordon Murdoch, QC, for Camden; Mr Michael Horowitz, QC, for the mother; Mr Anthony Kirk for the baby; the father in person.
MR JUSTICE WILSON said that in 1990 the mother discovered that she was HIV positive. She read widely and developed doubts about the validity of the generally accepted theories on HIV and AIDS. She began to explore complementary therapies and concentrated on healthy eating and keeping fit.
The father had practised for a number of years in the sphere of holistic health care, including massage and reflexology. He quickly came to share the mother's scepticism of the conventional approach to HIV and AIDS.
In July 1998, the mother became pregnant. She rejected the advice offered to pregnant women infected with HIV to take medication in the last weeks of pregnancy, to give birth by unforced caesarean section and not to breastfeed.
In April 1999, she had a natural water birth at home and within a few minutes, began to breastfeed the baby.
Notwithstanding repeated medical advice, the parents could not agree that the baby should be tested for HIV and in July their local authority commenced the instant proceedings.
His Lordship said that in determining the authorities' application it was accepted on all sides that the parent's wishes were of great importance...
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