The parents of a baby born to a HIV positive mother were strongly opposed to the testing of the child for HIV and to any form of medical intervention.
Held: There is a presumption that the united view of the parents of a child as to the treatment of the child correctly identified the best interests of the child and should be followed. This follows from section 5. The presumption is however rebuttable, and where the overwhelming evidence was contrary to that of the parents, it could be rebutted. the views of the parents looked at widely and generously were important factors in the decision, even, to some extent, irrespective of the validity of the underlying grounds for those views. The court noted that any applicant for an order had, in effect, to persuade the court that there positive grounds for taking the matter out of the hands of those with parental responsibility for the child. A court invited to over-ride parental wishes had to move extremely cautiously. However, in the instant case the arguments for over-riding the wishes of the parents and for testing the baby were overwhelming. The baby had rights of her own recognised in national and international law, the baby’s welfare was paramount, and in the baby’s interests the test should take place. ‘This baby has rights of her own. They can be considered nationally or internationally. Under our national law I must determine the case by reference to her welfare (s.1(1)); and, in particular, I must have regard to her physical needs (s.1(3)(b)); to her background, namely her mother’s infection (s.1(3)(d)); and to the harm which she is at risk of suffering (s.1(3)(e)). The UK has ratified the United Nations Convention on the Rights of the Child 1989 The Convention does not have the force of law but assists in our interpretation and development of the law. It is interesting to note that, in requiring respect for the responsibilities and rights of the parents, Art. 5 links them to the provision of appropriate direction and guidance in the child’s exercise of her or his own rights.’
Judges:
Wilson J
Citations:
Times 14-Sep-1999, 1999 2 FLR 1004
Statutes:
Cited by:
Cited – A and D v B and E FD 13-Jun-2003
In two separate actions, fathers with parental responsibility sought orders requiring the mothers of their children to ensure they received the MMR vaccine. Each mother objected, having suspicions as to the safety of the treatment. Specific issue . .
Lists of cited by and citing cases may be incomplete.
Children
Updated: 08 April 2022; Ref: scu.81768