HSE May Appeal Part Of Miss D Ruling

The Irish Times Friday May 9th 2007

The Health Service Executive (HSE) is still considering the possibility of appealing aspects of the Miss D judgment, due to its possible implications for children in State care. Carl O'Brien and Alison Healy report.

The ruling, which granted a 17-year-old girl in care the right to travel to the UK for an abortion, has cast doubt on the HSE's authority to act in the place of parents on behalf of hundreds of children who are the subject of interim care orders.

In particular, senior officials are concerned that older children in care who want an abortion may not need a District Court order to travel abroad.

In a statement yesterday, the HSE said that it would examine the legal implications in terms of the HSE's duties and responsibilities under childcare legislation.

In addition, it said that it would carefully study the judgment of the High Court to see what changes, if any, may be required in its procedures and practices for dealing with such cases.
Meanwhile, solicitor and children's law expert Geoffrey Shannon said that the Miss D judgment was unlikely to cause chaos for children in care and its implications should be not exaggerated.

He insisted that the ruling would not lead to children in care leaving the country whenever they felt like it. "Let's not overly exaggerate the significance of this case," he said, adding that the HSE still had the power to act in place of the parent on behalf of children under 16.

Questions did arise for mature minors, children aged between 16 and 18, whether they were in care or not, Mr Shannon said.

"There's always been a twilight zone for children aged 16 and 17. A child has rights and, as the State argued, those rights are not delivered to them by courier on their 18th birthday. Miss D was 17 and we see that Miss D had actually quite significant rights."

He also pointed out that, from the age of 16, a child had the right to make decisions on medical treatment.

The issue affected a very small number of children, he said. Of the 5,330 or so children in care, just "a small fraction, perhaps less than 10 per cent" were aged 16 or 17.

Minister for Justice Michael McDowell welcomed the fact that the High Court had found "a humane and common-sense solution". He said that the court ruling supported his view that the gardaí were not a group of people who could be deployed to keep people in Ireland in such circumstances. "I'm glad to see that the High Court judge echoed my view in this regard," he added.

Asked if something should be done to ensure that a similar case would not arise again, he said: "If you're suggesting that we're going to at this stage start discussing the abortion issue in the context of the general election - I'm not going to do that."


Dr Declan Keane, master of the National Maternity Hospital in Holles Street, told RTÉ yesterday that there was "a strong cohort" of obstetricians who believed that terminations should be carried out in this country if the baby had absolutely no chance of life outside the womb.