The Irish Times Saturday May 5th 2007
The HSE contacted the passport office to stop the issuing of a passport to the pregnant 17 year old at the centre of the latest abortion controversy, the High Court heard yesterday. This was in addition to informing gardaí (Irish police) about Miss D's plans to go to Britain for an abortion, Gerard Durcan SC, for the HSE said.
Miss D, who is four months pregnant, has told the HSE of her proposal after learning on April 23rd that her baby had a serious head defect preventing its survival for more than three days after birth. The hearing of Miss D's application for an order restraining the HSE from stopping her travelling for an abortion entered its second day yesterday (Friday) and continues on Monday before Judge Liam McKechnie. The judge said that the basic question for the HSE was, in light of the scan result on Miss D's baby and her wish to travel for a termination, whether it considered if it would be in her best interests if she travelled abroad.
He added that he ventured to suggest that it would have been 'exceedingly difficult' for the District Court not to permit her to travel in view of her wishes. The core point was whether this 17-year-old could travel or not, the judge added. The court could have a good debate over rights and powers and what and which order but there was a 'core human issue before us all'.
Mr Durcan said that while nobody could ignore the tragedy, the HSE had to deal with it within the legal parameters. He welcomed Miss D's lawyers remarks that the HSE had acted in good faith. Everybody was attempting to do their best within certain legal parameters, he siad. Mr Durcan said the HSE had a lot of children in its care and the implications of this case may be greater in child care law than in the area of termination of pregnancy. The HSE had to act within the legal parameters.
Mr Justice McKechnie said while that was laudable, time was running and was of the essence. He also asked why, if the HSE was contemplating going to the District Court for an order under the Child Care Act in the case, it did not do so before contacting the gardaí or the passport office. Mr Durcan said the HSE found itself in awkward circumstances. The HSE was not entitled to facilitate the termination of a pregnancy. 'We can't get involved,' he said. The HSE could only get involved in situations similar to the X case, he added. If a girl in care travelled abroad when she was the subject of a care order, then the statutory body might be criticised for letting her go.
It was 'not fanciful' that the HSE thought it might be dealing with another X case but it was satisfied it was not when it got a consultant psychiatrist's report. In submissions on behalf of Miss D's mother, Dervla Browne SC said the argument had not been made anywhere that travelling abroad would be adverse to Miss D's welfare. If the parent of Miss D consented to travel and the HSE also consented, then no order was required from the District Court, Ms Browne said. There was no allegation that Miss D's mother was acting against her daughter's interests in supporting her and in making arrangements for her to travel to Britain for an abortion.
The HSE's letter to the passport office to stop Miss D getting a passport was contrary to her mother's right to guardianship and also in breach of her constitutional rights, Ms Browne argued. Miss D's mother believed it was in the best interests of her daughter to travel to have the termination.