Mary Carolan The Irish Times Tuesday May 8th 2007.
The Miss D case is not about the right to life of the unborn, it is about the right to travel and there is no law preventing 17-year-old Miss D travelling for an abortion, the State has told the High Court.
"This is a free country where people have the liberty to do as they please unless there is a law restraining them," Donal O'Donnell SC, for the Attorney General, said. Only "a totalitarian state" required citizens to have permits to travel.
It was the State's case that only a court order could stop Miss D from travelling and such an order could only be made on the application of a parent, he said.
Neither the HSE nor the Garda nor any care order could prevent Miss D exercising her right to travel, counsel added.
There was no law preventing her travelling or using her passport and the constitutional requirement to vindicate the right to life of the unborn was not a ground to restrain her travelling.
Mr O'Donnell also said there was no dispute that Miss D was fully competent to make the decision to travel.
The fact she is under-18 and in care does not limit her rights, he stressed. Children have constitutional rights from day one, "those rights are not delivered to them by courier on their 18th birthday", he said.
While children required someone to exercise those rights, principally their parents, the participation of parents in exercising those rights became less necessary as a child grew older, he added.
Sometimes the State had to do the job of exercising rights, he said. However, the making of a care order did not diminish the rights of a child. The "curiosity" of one argument of the HSE was that it was suggesting that the Child Care Act imposed a statutory restraint on the right to travel of children in care, a restraint which does not apply to children outside care. There was no such restraint.
The Child Care Act is "a patchwork quilt of laws and rights relating to children" and it was not the case that children have no rights until they are aged 18, he said. In this case, Miss D had, for example, exercised her right to bring the case and have it heard in public.
Mr O'Donnell, with Maurice Collins SC, said the first and foremost test in the case was to establish what piece of paper, what law, would require the Garda to exercise a power to restrain Miss D travelling. There was no such law.
The "total silence" in the HSE's submissions about the issue of the power of the Garda to restrain was unsurprising given what the Garda had said on April 26th about having no such power. It seemed self-evident the care order did not permit the Garda, either on their own initiative or at the direction of the HSE, to stop a person in care from travelling.
The HSE was not saying it could stop Miss D travelling but insisted she required a District Court order. That was the wrong starting point, counsel said. A person did not require authority to travel abroad. Rather, authority was required to restrain a person from travelling.
The Child Care Act did not deprive a person in care of the right to travel.
If there was any right to restrain travel, it was a parental right. There could not be a situation where the HSE could be put in a stronger situation than a parent, or where a child in care could be placed in weaker position than a child outside care.
The Child Care Act did provide for a health board to consent to medical treatment. It did not follow there was a negative prohibition on such treatment being carried out without HSE consent.
The fact the Child Care Act also provided that the HSE could consent to issue a passport for a child in care did not mean the child could not travel anywhere without the HSE's consent.