Ann O'Loughlin The Irish Independent Thursday May 10th 2007
Judge says no legal or constitutional bar exists
THE 17-year old girl at the centre of the latest abortion controversy can travel to the UK for an abortion after a judge ruled there was no law to prevent her doing so.
Mr Justice Liam McKechnie said he "firmly and unequivocally'" holds the view that there is no legal or constitutional impediment preventing Miss D travelling for the purpose of terminating her pregnancy.
He also ruled the right to life of the unborn cannot interfere with the right to travel for an abortion.
Given those findings, he said it was not necessary to address the issue of whether the foetus Miss D is carrying, given its medical condition and prognosis, is an "unborn" within the meaning of the right to life provisions of the Constitution. This case, he stressed, was about the right to travel.
It was "not about abortion". His decision had no impact on children born with profound disabilities who, in any civilised society, "must be cherished and loved".
The HSE is to pay the costs of Miss D and her mother in the legal actions in both the District and High Courts. Total costs of the actions are estimated at up to €1m.
The High Court judge was delivering his reserved judgment yesterday on proceedings arising after Miss D, who is some 18 weeks pregnant and from the Leinster region, told a HSE social worker on April 26 of her intention to travel for an abortion.
She made that decision after learning, from an ultrasound scan on April 23 that her baby had a fatal brain condition. She was later told the HSE would not consent to her travelling for an abortion and that it had contacted gardai.
On April 30 last, she initiated proceedings for a declaration that she is free to travel for an abortion.
During the hearing last week, the judge said, the position of the HSE changed "dramatically" and last Saturday it applied to the District Court for an order permitting her to travel, which District Judge Flann Brennan refused on the grounds that it would fail to vindicate the right to life of the unborn. The HSE on Sunday secured leave to challenge the District Court's decision.
Mr Justice McKechnie heard both legal actions together. Yesterday, he ruled Miss D was entitled to a declaration that there is no law preventing her travelling for an abortion and he also ruled the District Court judge was not entitled to refuse to grant the order sought by the HSE.
Mr Justice McKechnie began reading his lengthy judgment to a packed courtroom at 3pm yesterday. Miss D was not present but her mother was as were members of pro-choice and anti-abortion groups.
In his decision, the judge noted Miss D was the subject of an interim care order. The scan of April 23 had revealed her baby had a lethal abnormality which was incompatible with life outside the uterus. The judge outlined evidence of certain medical risks to the mother where anencephalitic pregnancies are continued with. After expressing sharp criticism of how the HSE responded to Miss D's situation, the judge found the HSE had failed to address the best interests of Miss D. He found there was no law or provision of the Child Care Act 1991 which restrained a child in care travelling for an abortion or which would support the HSE's claim that District Court permission was required for travel. He also ruled there was no power under an interim care order for the HSE to consent to medical treatment or the issuing of a passport for Miss D.