Dearbhail McDonald The Irish Independent Thursday May 10th 2007.
Judge praises pregnant girl's courage
THE High Court decision to allow Miss D travel to have an abortion could wreak havoc on our child welfare system, legal experts warned last night.
Hundreds of children in the care of the State could leave the country as a result of yesterday's ruling, they said.
The court found the HSE had no right to stop the pregnant 17-year-old girl from travelling abroad.
This could have serious implications for the care system as it effectively means that many young people, over 15 years of age, in temporary care do not need court approval to leave the system and travel outside the country.
Last night, the girl, known as Miss D, who is 18 weeks pregnant, made arrangements to travel to England for an abortion.
Her foetus suffers from a condition which means it will not survive more than a few days after birth.
Judge Liam McKechnie said the HSE has no right to restrain a child subject to an interim care order from travelling abroad for an abortion. And he rejected the HSE's claim that court permission is required for children in its care to travel.
Although the ruling has defused the latest abortion crisis by permitting the teen to travel, it has now created uncertainty about the powers and duties of the HSE, which has more than 5,000 children in its care.
Last night the HSE, which was severely criticised over its handling of the case, said it had always considered a court order was necessary to allow the teenager to leave its care.
It said the ruling will require further consideration in terms of its duties and responsibilities under child care laws.
Catherine Ghent, a solicitor who represents children in care proceedings asked: "What will the authorities do now?
"If vulnerable children can leave the country without the permission of the HSE and the courts, regardless of the purpose of that travel, it will have wide ranging implications on the operation of the 1991 Child care Act.
"Children, of course, have rights, but they can not always exercise those rights on their own behalf especially if they are placed in emergency or interim care. The fallout from this ruling could be very significant".
Yesterday, Judge McKechnie said he "firmly and unequivocally" held the view there is no law 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.
This case, he stressed, was about the right to travel. It was "'not about abortion" or about a decision to terminate the existence of a healthy foetus or a disabled child.
The judge said his decision had no impact on children born with profound disabilities who, in any civilised society, "'must be cherished and loved".
He ruled Miss D is entitled to a declaration that there is no law preventing her travelling for an abortion and praised her courage in taking the case to court.
He found the HSE had failed to address the best interests of Miss D in addressing her plight.
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.
The judge said it was imperative to recognise the rights of children and parents and that children's rights continue throughout childhood.
The HSE seemed to have tried to "'shoehorn" Miss D into an X case type situation although it had no evidence that she was ever suicidal, Mr Justice Liam McKechnie said.
While it would "perhaps be unfair" to criticise the HSE for seeking to create an X case scenario, he said he was "most surprised" at the absence of any recorded decision of the HSE on the most crucial aspect of the case - what course of action would be in the best interests of the welfare of the girl.
The Judge said the position of the HSE had changed significanlty, "some would say dramatically", during the case.
It had initially told Miss D she could not travel for an abortion without its consent and that it she tried, she could be restrained, by force if necessary, but that claim was not pursued during the court hearing.