Practice Directions

HIV testing of children

1. The procedure, initiated by the decision in Re X (HIV Test) [1994] 2 FLR 116, whereby applications are made to a High Court Judge to permit the testing of a child for the presence of Human Immunodeficiency Virus (“HIV”) is to be revised in the light of judicial experience and having regard to developments in medical science.

2. The need to make application to the court is likely to arise only rarely. In cases where application to permit HIV testing is a necessary step, the application to permit testing should be made to the appropriate county court and only to the High Court if proceedings concerning the child are pending there or the application is made for an order under the inherent jurisdiction of the High Court.

2.1 If there are proceedings concerning the child pending in a family proceedings court, the application to permit HIV testing should be transferred to county court level for determination; the proceedings may then be remitted to the family proceedings court following the hearing of the application in the county court.

2.2 Applications made to, or transferred to, the county court should be determined by a judge or district judge nominated (at least) for private law children cases. In the High Court, the application may be determined by a High Court district judge unless the application is made for an order under the inherent jurisdiction, in which case the application should be made directly to a High Court Judge.

3. In cases where a child of sufficient understanding to make an informed decision opposes the testing, reference to the court is necessary. If there are no pending proceedings, the application should be made under the inherent jurisdiction of the High Court. Notice of the application should be given to the Legal Services and Special Casework department of the Children & Family Court Advisory and Support Service (CAFCASS Legal Services). Another category of case in which CAFCASS Legal Services should be given notice is where a decision about testing is urgently required and the parents may not be legally represented.

3.1 It should be noted that where all those with parental responsibility agree to the testing (and it is not opposed by the child) no reference to the court is necessary, unless the testing is for the preparation of expert evidence.

4. Issued with the approval and concurrence of the Lord Chancellor.

Elizabeth Butler-Sloss
President