A court of final appeal available but ignored for an unborn child

Proposition No 1: The order made by District Judge Mary Fahy in the "C" case was made without jurisdiction and was invalid.

Proposition No 2: The order made by Mr Justice Geoghegan in the High Court on November 28th, 1997, did nothing to remedy the invalidity of the original order of the District Court, but compounded it.

The "C" named in the title of the proceedings was a 13-year-old girl, a child of A and B, who were the applicants in the High Court proceedings. She had become pregnant as a result of rape, some three months prior to the court hearings, and the Eastern Health Board sought an interim care order for the purpose of removing her from the custody and control of her parents and allowing temporary arrangements for fosterage to be made.

When the matter came on for hearing before District Judge Mary Fahy on November 21st, 1997, a further application was made for an order permitting the girl to go to "such place as may be appropriate" for the purpose of procuring an abortion, and authorising the EHB to make all necessary arrangements for the said purpose.

On that date the applicants were represented by senior counsel who then became aware for the first time that an authority to procure an abortion was being sought. The matter was then disposed of in a single day in the District Court, the judge refusing an application for a short adjournment to enable counsel for the parents to obtain and put forward psychiatric evidence to challenge the evidence of a psychiatrist called on behalf of the Eastern Health Board.

The order made by the District Judge purported to authorise the board to make all necessary arrangements to have the 13-year-old brought to England for the purpose of bringing about the death of the three-month baby she was carrying in her womb in an abortion clinic in that country.

An immediate application for judicial review of that order was made to the High Court and came on for hearing a few days later before Mr Justice Geoghegan. Once again, an application was made for a short adjournment to enable psychiatric evidence to be brought forward to challenge the claim that abortion was in the best interests of the pregnant girl, but once again it was refused, although the High Court judge made the remarkable finding that the District Court judge had acted "wrongly and unreasonably" when refusing a similar application only a week earlier.

In the interest of brevity, this article will deal with only one of a number of substantial grounds for contending that the orders made by both the District Court and the High Court were clearly wrong, bad in law, and invalid.

The District Court is a court of local and limited jurisdiction, as referred to in Art. 34.3.4 of the Constitution. The meaning of that descriptive phrase was considered by the Supreme Court when deciding whether the Incorporated Law Society could exercise powers to strike off solicitors for misconduct. In The Solicitors Act Case (1960) IR 239, it ruled as follows:

A Tribunal having but a few powers and functions, but those of far-reaching effect and importance, could not properly be regarded as exercising "limited" powers and functions . . . If the exercise of the assigned powers and functions is calculated ordinarily to affect, in the most profound and far-reaching way, the lives, liberties, fortunes or reputations of those against whom they are exercised, they cannot properly be described as "limited".

In the "C" case, the Eastern Health Board had no power to remove the young girl from the jurisdiction for the purpose of procuring an abortion and applied to the District Court to authorise it to do so.

The District Court judge, in other words, was being asked to make an order, the effect of which would be to bring about the death of the unborn child in the womb.

This was a matter of life or death for the child in the womb. It cannot possibly be regarded as the exercise of "limited jurisdiction", having regard to the very clear statement of principle by the Supreme Court in the Solicitors Act Case. The order made by District Judge Mary Fahy was made without jurisdiction and was unlawful and invalid.

Mr Justice Geoghegan, in the High Court, not only overlooked this obvious invalidity in what had taken place in the District Court, but devoted a large part of his judgment to urging that all future applications of this kind should be made to the District Court and not to the High Court.

He said: "I think it highly undesirable for the courts to develop a jurisprudence under which questions of disputed rights to have a termination of pregnancy can only be determined by plenary action in the High Court."

Where the learned judge went wrong, it is submitted, was in his failure to accord the constitutional right to life of a living human person to the child in the womb. From the moment of conception a new human life comes into being, but the Judges in the "X" case and in the "C" case have closed their minds to this fact of life and have signally failed to defend and vindicate the right to life of the unborn as they were bound to do under Art. 40.3.3 of the Constitution.

One person who appears to have been conscious of the fatal flaw in what had taken place in the District Court was counsel briefed to appear on behalf of "C" in the High Court, for he suggested that Mr Justice Geoghegan should convert the judicial review proceedings into an independent application, invoking the inherent jurisdiction of the High Court, and grant leave for the termination of pregnancy to take place. But this adroit suggestion was rejected by the High Court judge. He again stated that "the Child Care Act is a perfectly appropriate umbrella under which these questions can be determined".

What next took place is inexplicable. The Attorney General and senior and junior counsel were representing the unborn child in the High Court proceedings. They were representing a client under sentence of death by reason of what had been decided in the District Court and upheld in the High Court. There were very strong and cogent grounds for challenging the validity of those orders. The Supreme Court gave express notice to counsel that the court was available and prepared to deal immediately with any appeal that might be brought. A court of final appeal was available for the unborn child against whom sentence of death had been passed. The Attorney General and the counsel he had briefed on behalf of the unborn child informed the Supreme Court that they did not propose to avail of the right of appeal.

How can this be explained?

Rory O'Hanlon is a former judge of the High Court and a former president of the Law Reform Commission.