Order allowing girl to travel for abortion upheld by court

 

The High Court yesterday upheld orders allowing a 13-year-old pregnant rape victim - identified only as Miss C - to travel to Britain for an abortion after hearing there was a real and substantial risk to her life if the pregnancy continued.

Mr Justice Geoghegan said the termination of pregnancy authorised by the District Court was lawful under the Constitution. According to legal sources yesterday, the decision will not be appealed to the Supreme Court and the girl is free to travel.

Delivering judgment on judicial review proceedings challenging the order allowing the girl to travel, Mr Justice Geoghegan said he could not see how any judge could have avoided the conclusion that "as a matter of probability there was a real and substantial risk to the life as distinct from the health of C which would only be avoided by the termination of her pregnancy".

The judgment was delivered after three days of an in camera hearing of an appeal taken by the girl's parents against an order made by Judge Mary Fahy on November 21st in proceedings under the Child Care Act involving the Eastern Health Board, the girl's parents and the girl.

The parents sought an order quashing Judge Fahy's order directing that Miss C be allowed to travel for the purpose of terminating her pregnancy and be afforded the termination and whatever medical treatments were deemed necessary by her medical advisers.

The parents alleged the judge had no jurisdiction to make the order.

Mr Justice Geoghegan said the girl was the subject of an interim care order which was to last until yesterday, but there was agreement among all parties that it be renewed.

He said the directions of Judge Fahy were challenges on 16 grounds which could be summarised under six headings. The parents, represented by Mr Iarfhlaith O'Neill, contended they did not get a fair hearing at the District Court.

They also submitted that the expression "medical or psychiatric examination, treatment or assessment" could not be interpreted to include a termination of pregnancy, whether lawful or unlawful, and that the interpretation of those words involved construing the statutory provisions and constitutional rights. The District Court was not empowered to do that, they said. The parents further argued that, if the expression "medical or psychiatric examination, treatment or assessment" did cover terminations of pregnancy, lawful or unlawful, the relevant statutory provision was invalid under the Constitution on the grounds it would be an unjust attack on the right of life of the unborn child, the constitutional authority of the family and would also be a breach of the State's guarantee to respect the inalienable rights and duty to provide for the moral education of C.

The parents also said Judge Fahy failed to have regard to the rights and duties of parents under Section 24 of the Child Care Act 1991 and, if she had correctly construed that Section, it was unconstitutional.

They said the judge had also held that the evidence before her failed to satisfy the tests set down in the X case but that she had nonetheless made the orders sought.

Mr Justice Geoghegan said counsel for Miss C was opposing her parents' application on the grounds that the District Court procedures were fair and that the relevant statutory provisions were constitutional.

He said Mr Gerry Durcan SC, for Miss C, contended the expression "medical treatment" must necessarily include termination of pregnancy in all circumstances but at the very least in the circumstances of the present case having regard to medical evidence that termination was in the interest of C.

Mr Durcan also said Judge Fahy had found there was a real and substantial risk to the life of the mother and she was likely to take her own life if not allowed to terminate her pregnancy and that this danger of suicide was not otherwise preventable. Mr Justice Geoghegan said such a finding would bring the case within the principles of the X case.

Mr Durcan had further submitted, if he was wrong in the latter argument, then, under the "travel amendment", Judge Fahy was lawfully permitting the girl to travel to another jurisdiction to have an abortion.

Mr Justice Geoghegan said counsel for the Eastern Health Board and for the Attorney General had essentially adopted the X case argument advanced by Mr Durcan and adopted a neutral stance on the second. In the case of Mr Donal O'Donnell SC, for the Attorney General, the judge said it might be more accurate to note he did not see any reason to argue that point as he did not think it arose.

Outlining the background to the case, the judge said Miss C is now 13 1/2 years old and one of a traveller family of 12. She was brutally raped on August 27th and became pregnant as a result. She was severely traumatised by the rape.

The judge said there was a well-founded view that the behaviour of the girl's parents after the rape did not correspond to the kind of behaviour expected of parents in such appalling circumstances and it was in that context that temporary care orders were made.

He said the girl has been with a foster mother who was a loving and caring person and would be happy to support and abide by C's wishes irrespective of whether she had an abortion or continued with the pregnancy. "The girl at all times has wanted to have an abortion because she is quite unable to relate to the baby inside her and cannot accept and claims that she will never accept that the baby is really hers."

Her parents had been supportive of the idea of abortion for some time but had changed their minds. Her mother was now absolutely opposed while her father's opposition was qualified.

Mr Justice Geoghegan upheld Judge Fahy's decision to proceed with the hearing of the case on November 21st and her refusal to grant a stay on her order. He found she was wrong in refusing an application by counsel for the girl's parents for a short adjournment so he could consult a psychiatrist with a view to cross-examine psychiatrists who gave evidence on behalf of the girl.

However, as a matter of discretion, he would not quash the judge's orders on that ground or any of the natural justice grounds advanced.

The judge also disagreed with Mr O'Neill's argument that the expression "the medical or psychiatric examination, treatment or assessment of the child" could never include termination of pregnancy. He said it was not necessary to consider whether all terminations come within the expression "medical treatment". He was satisfied it did within the facts of the present case. There was medical evidence that the girl had said: "I would kill myself if I had the child." When asked why, she had said: "Because it is not my child" and was vehement in saying that.

Mr Justice Geoghegan said Dr Gerard Byrne, a paediatric psychiatrist, was asked if he had formed any clinical judgment in regard to the girl's thoughts about suicide. Dr Byrne said he felt the thoughts were real and he further felt, that, if termination of pregnancy was not achieved, she would act on them. The risk was described as "very significant" and Dr Byrne said he had great fears for her. The risk of suicide was becoming more immediate because as time went on, the girl was getting less and less able to deny the existence of her pregnancy.

The judge said: "It was becoming more and more real that up to now she has been able to avoid facing up to it in the hope of having the termination carried out and that if that did not happen, the suicidal risk was immeasurably increased making the termination a matter of urgency."

Dr Byrne also said he was of the view, whether there was therapy or not, that the termination of pregnancy was the priority.

Mr Justice Geoghegan said: "In the light of this evidence coming from a consultant psychiatrist including the advice that she under go medical procedures involving the termination of her pregnancy because of her suicidal tendencies, such medical procedures must in my view constitute medical treatment within any normal definition." In those circumstances he was of the view that Judge Fahy's direction did involve medical treatment and came within the statutory provision.

The judge also rejected the argument that the District Court had no jurisdiction, because it would involve the consideration of various constitutional rights, to determine whether termination of a pregnancy should occur.

If anything, a District Court judge with the regular experience of dealing with children and their welfare may well be better equipped than a judge of the High Court, he said. It would be wrong to turn the High Court into "some kind of licensing authority for abortions" although it had a function in granting injunctions to prevent unlawful terminations.

`There was medical evidence that the girl had said: "I would kill myself if I had the child . . . because it is not my child' "