Ivana Bacik The Irish Examiner Thursday May 10th 2007.
Justice McKechnie rejected the suggestion that a pregnant girl in care, who is not suicidal, might not be allowed to travel, writes Ivana Bacik.
Mr Justice McKechnie's judgment must be welcome for its clarity on key issues; and for the comprehensive way in which he identified those issues.
He began by stating his overall decision 'firmly and unequivocally', that there is no legal basis to prevent Miss D from travelling to Britain for termination of her pregnancy if she so wishes. He then proceeded to give his reasons.
He emphasised that the case was not about abortion, or 'born or unborn children with disabilities' since the foetus carried by Miss D is not in such a category. He pointed to the uncontested prognosis was that the child would not survive outside the womb.
The judge was very critical of the HSE's conduct in the case, saying that they had not carried out their crucial function to safeguard Miss D's welfare; and had failed to give due credit to her informed decision to have a termination. Instead, they had suggested that that they could prevent her from doing so, and had even contacted the gardaí about this.
He commented that they had tried to 'shoehorn' her case into an X situation; but to her credit, she had not perjured herself by saying she was suicidal. He praised Miss D in very strong terms, saying she had shown 'courage, integrity and maturity' throughout the proceedings.
He went on to consider whether District Court approval was a necessary precondition for Miss D to travel lawfully to Britain, and considered at length the provisions of the Child Care Act 1991, governing the terms on which children are placed in care. He concluded that because Miss D was under an interim care order rather than a full care order, the powers of the HSE were less extensive. For example, they had no express power to give consent to the issue of her passport.
He considered the right to travel, noting its importance in a democratic society. He referred to the travel referendum in November 1992, and stated that the right to life of the unborn cannot restrict the constitutional right to travel.
In an important decision on this point, he disagreed with an earlier judgment by Mr Justice Geoghegan in the 1997 C case, also involving a pregnant in the care of a health board. Because Miss C was suicidal, the High Court allowed her to travel for an abortion, on the basis that it would have been legal for Miss C to have the abortion in Ireland under the X case test, since the pregnancy posed a real and substantial risk to her life.
However, Mr Justice Geoghegan suggested in the C case that where a pregnant woman did not fall within the terms of the X case test, she might not be given permission to travel abroad.
In yesterday's decision, Mr Justice McKechnie rejected this interpretation of the Constitution. He said that the 1992 travel amendment prohibits barriers on the exercise of the right to travel, whatever form they might take. There might be cases, he said, where failure to make a positive order allowing someone to travel could constitute a barrier.
This was a very important ruling. It seems that Miss D herself does not require the assistance of the HSE in travelling to Britain. She has the support of family and can make her own arrangements. However, there might be future cases involving younger girls in care without supportive families, who require the positive assistance of the HSE in travelling abroad for an abortion. The effect of yesterday's judgment appears to be that the HSE will now be able to offer such assistance without having to ensure first that the girl falls within the X case test.
The judgment therefore marks an important statement of the right to travel and an important decision on the powers and duties of the HSE under the Child Care Act 1991. However it sidesteps the core question as to whether Miss D might have been entitled to an abortion in Ireland.
While the decision allowing her travel is very welcome, a truly compassionate response to Miss D's case would be to provide for her to have a lawful abortion in Ireland.
Ivana Bacik is Reid Professor of Criminal Law at Trinity College Dublin.