High Court of Ireland Decisions

1. This is an application brought pursuant to leave granted by Flood J. for judicial review of an order of the District Court made by the second respondent on the 21st November, 1997, in proceedings under the Child Care Act, 1991, between the Eastern Health Board as applicant and the above named A. and B. and the above named C. as respondents though under different initials. The primary relief sought is the quashing of the said order of the District Court but there are a number of consequential injunctions and declarations also sought. Essentially, however, the allegation is that the second respondent had no jurisdiction to make the order which she did make. The relevant proceedings in the District Court took the form of an application by the first respondent for an interim care order in respect of a 13 year old girl, the above named C., who is the child of the marriage of the above named A. and B. The jurisdiction to grant the interim care order arises under s. 17 of the Child Care Act, 1991. Subsection 4 of that section provides as follows:-

2. The application for the s. 17 interim care order in this case was successful but the Court was asked to exercise its power under s. 17 (4) and make a particular direction allegedly in respect of “the medical treatment. . . of the child”. The directions applied for and made took the following form:-

3. No attack is being made on the interim care order. That order was only to last until today but, as I understand it, there is agreement between all the parties that it would be renewed. Furthermore, in case there should be any doubt about the continued operation of the directions there is to be consent of all the parties this morning and on a “without prejudice” basis to those directions being continued or renewed. I emphasise that this was being done by agreement and not by any authority coming from this Court because, of course, until this judgment is delivered this Court could not express any view on the validity of the order giving the directions sought to be impugned and therefore could not expressly authorise a repeat order. But for the reasons which I have indicated the above list of directions are still prima facie in force.

4. The challenge to the directions of the second respondent is made on 16 grounds as set out in the statement of grounds for judicial review. But I think that these grounds can be neatly summarised as follows:-

5. As these proceedings have been held in camera and as media reports as to the nature of representation have not been entirely accurate, I think I should explain what parties were represented and in what capacity. Mr. Jarthlaith O’Neill, S.C. and Mr. Bernard McDonagh appear for the parents of the child, A. and B. and they are the applicants in the proceedings. Mr. Durcan, S.C. and Mr. McDermott, appear for the child in care, C. Mr. McDowell, S.C. and Ms. Stewart appear for the Health Board and there are then two sets of counsel appearing for the Attorney General. When granting leave, Flood J. had thought it proper that the Attorney General should be given notice and at any rate he would have had to be made a notice party once there was a challenge to the constitutionality of any post-1937 statutory provision. Mr. Donal O’Donnell, S.C. and Mr. Barniville have been instructed by the Attorney General for this purpose and for the purpose of assisting the Court in the constitutional interpretation of the statutory provisions generally. Mr. James O’Reilly, S.C. and Mr. Shane Murphy have been instructed by the Attorney General to represent the unborn child whose rights are being asserted in the case.

6. The application has been opposed by counsel for C. on the grounds that the procedures in the District Court were fair to the applicants and that the relevant statutory provisions are constitutional but more importantly counsel contends that the expression “medical treatment” must necessarily include termination of pregnancy in all circumstances but at the very least it must include it in the circumstances of this case having regard to medical evidence that termination of pregnancy was in the interest of C. He then goes on to argue:-

7. The young girl C. is now 13 ½ years of age. She was brutally raped by an adult male on the 27th August, 1997, and became pregnant as a result. She is a member of the travelling community and one of a family of twelve. The evidence before the District Court indicated that she lived in particularly squalid conditions which were quite unlike the conditions in which most travelling people lived. The alleged rapist is also of the travelling community and a long-standing friend of the family. It is not necessary to go into the facts in too much detail. It is sufficient to say that the girl was very severely traumatised by the rape and there was a well-founded view that the behaviour of her parents, the applicants A. and B. after the rape did not correspond in various respects to the kind of behaviour one would expect of parents in such appalling circumstances. It was in this context the temporary care orders were sought and made, though no permanent care order has yet been made. With the approval of the parents, the girl C. has been with a foster mother who has her own family some fifty miles away. The foster mother is a loving and caring person and would be happy to support and abide by the wishes of C. in relation to her baby, that is to say the foster mother would be supportive of a decision to keep the baby or a decision to have an abortion. 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 that baby is really hers. For quite some time the parents and particularly the father were not only supportive of the idea of an abortion but were advocating it. They had doubts about this at times however and ultimately changed their minds and opposed any idea of termination of pregnancy. It is clear from the evidence in the District Court that although the mother is now absolutely opposed, the father’s opposition is qualified and that he would favour it if otherwise his daughter was going to take her own life.

8. The District Court hearing took place on the 21st November, 1997. But as late as the previous Tuesday, i.e. the 18th November, it had been decided with the approval of the parents and indeed encouragement of the parents that the Health Board would not seek a further interim care order but that instead the parents would undertake to leave the girl with the foster mother and would permit the foster mother to travel to England with the girl so that she could have her pregnancy terminated in England. Very properly counsel for the girl, C. and who had only just been instructed, asked for a short adjournment first to enable him to discuss the matter with his client and make absolutely sure that that was her wish. That was done and counsel confirmed that it was her wish but in the meantime and it would appear, as the result of outside influence, the parents changed their minds, discharged their solicitors and counsel and engaged new solicitors and counsel with a view to opposing any abortion. The first inkling of this change of mind came on Wednesday the 19th November, in the District Court when the father, A., who at that time was still been represented by his original counsel Mr. Fitzgerald, personally informed the Court that he was now opposing the abortion. He was told by the second respondent that all of these matters would be gone into at a full hearing on the Friday and that she was clearing her list so as to devote Friday to the case. The importance of this is that counsel for the first respondent and for C. strongly argued that at the very latest from that Wednesday, the father A. was aware that the question of a proposed termination of pregnancy would be aired in court on the Friday. It is true however, that although an application for the interim care order and unspecified directions was served on the Thursday night on the applicants, no notice was given of the particular directions sought to accompany the care order until the Friday morning in court when the applicants were represented by their new counsel, Mr. O’Neill.

9. At this point it is appropriate to deal in turn with each of the grounds on which the applicants seek to impugn the second respondent’s order. As I have already indicated the first of these grounds is that the applicants were not given a fair hearing. There are several respects in which this is alleged. They are:-

10. There can be no doubt that in a conventional situation it might be a breach of fair procedures to embark upon the hearing of an application for an important order when the complaining party had had no prior notice of the particular order sought. But the situation in this case was exceptional. Quite a long period had already elapsed from the commencement of the pregnancy and if there was going to be a termination it was essential that the matter be dealt with as quickly as possible. Whatever of his counsel, the applicant A., for the reasons which I have indicated and I have little doubt his wife would have been well aware that the question of the termination of the pregnancy was a very live issue and had become all the more so as a result of their change of mind and it had been indicated to them that it would be dealt with on the Friday. Furthermore, the proceedings in my view under the Child Care Act, 1991 are in the nature of an inquiry rather than an adversarial nature. The second respondent was entitled to take the view that as the girl had been assessed by two psychiatrists, one on behalf of the Health Board and one on behalf of the girl herself, she was entitled to proceed with the hearing. It might of course have been a different matter if it was appropriate for her to have acceded to the applicants’ application to have the girl assessed by yet another psychiatrist. This indeed is the second ground of objection. She did not accede to that request and in my opinion quite rightly so. There was evidence before her that further investigations either by a new psychiatrist or indeed by the psychiatrists who had already questioned C. were not in the interests of C.’s own mental health. The Court had the benefit of two very reputable psychiatrists, Dr. McC. and Dr. B., the paediatric psychiatrist who regularly gives evidence in the family courts. The second respondent was entitled in my view to decide what witnesses were necessary for her to make up her mind what was in the best interests of the child, while of course giving a fair hearing to all relevant parties. She did this, in as much as she heard the evidence of each of the applicants. She did not think it desirable that another psychiatrist should be introduced into the case and I believe that not only was she entitled to take that view but that it was the correct view. In expressing the view that the proceedings should be regarded as an inquiry rather than as a lis inter partes I find support in the judgment of O’Flaherty J. in Southern Health Board v. C.H. [1996] 1 I.R. 219. Having regard to the clear urgency of the matter the second respondent was entitled also to proceed with the case notwithstanding the late notice of the direction sought.

11. The third of counsel for the applicants’ procedural objections is rather different and I believe it to be well-founded. Towards the end of a very long day of hearing counsel for the applicants applied to the second respondent that he should have the benefit at least of a short adjournment until the Monday so that he could consult a psychiatrist with a view to cross-examining Dr. B. In my view, she wrongly and unreasonably refused the application as, although the matter was urgent, there had to be a balance between the urgency and the adoption of fair procedures. It was obvious that this case was at any rate going to end up in the High Court and the Supreme Court. In other circumstances and in a different type of case, this Court might take the view that the order ought to be quashed and that the matter be sent back to the District Court for further hearing because of the refusal of that adjournment. But certiorari is a discretionary remedy and I am quite satisfied that in all the circumstances of this case, including the nature of the hearing which did in fact take place and the absolute urgency for finality and the firm belief that even if such an adjournment had been granted it would have made no difference to the order made by the second respondent that as a matter of discretion I ought not to quash the order on this ground.

12. The fourth procedural objection of the applicants is not sustainable in my view. The second respondent had a discretion whether to grant a stay or not. She chose not to do so but even if she ought to have done so the applicants have not suffered in that they went the route of judicial review and got an immediate leave accompanied by an injunction in the form of a stay from Flood J. I therefore refuse to quash the order of the District Court on any of the natural justice grounds.

13. I now turn to the second main ground of challenge as summarised above. This is the question of the interpretation of the expression “medical or psychiatric examination, treatment or assessment of the child”. Counsel for the applicants argues that the expression “medical treatment” could never include termination of pregnancy. I disagree. Counsel for C. has drawn my attention to the fact that in the English abortion legislation, termination of pregnancy is regarded as a medical treatment. I do not think much importance can be attached to that as there could have been political and other reasons for such definition. But where a psychiatrist, as in this case, gives strong evidence to the effect that a child is likely to commit suicide unless she has a termination of pregnancy, that termination of pregnancy, which is a medical procedure, is clearly in my view also a medical treatment for her mental condition. It is not necessary therefore to consider whether all terminations of pregnancy come within the expression “medical treatment” I am satisfied that on the facts of this case it would come within that expression. At this point, it might be useful to refer briefly to some of the relevant evidence of Dr. B. In answer to question 336 in the transcript i.e. “Did she go any further in regard to what her intentions were if she did have a child?” he replied that she said “I would kill myself if I had the child”. He explained that he asked her why she might do that and she replied “Because it is not my child”. He then went on to say that she was very vehement when she said that. At question 364 Dr. B. was asked did he form any clinical judgment in regard to her thoughts about suicide, he said that he did and that he felt they were real and he further felt that if she did not achieve the termination of the pregnancy that she would act on them. When asked about the degree of the risk, he said it was a very significant risk and he had very little doubt about that. When he was asked at question 374 how great were his fears for her, he said they were very great but the threat was to her life. In answer to question 376 he said that the risk of suicide was becoming more immediate because as time went on she was getting less and less able to deny the existence of the pregnancy. 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.

14. At question 381 Dr. B. said there was an urgent situation because of the suicidal risk which was an immediate risk. At question 392 Dr. B. was asked about time scales. He said that the termination of pregnancy should take place as soon as possible. Although agreeing that therapy was required, Dr. B. also made it clear in answer to question 395 that he was still of the view, whether there was therapy or not, that the termination of the pregnancy was the priority. In the light of this evidence coming from a consultant psychiatrist, including the advice that she undergo 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. I am therefore of opinion that the direction of the second respondent did involve medical treatment and came within the statutory provision.

15. This brings me to the next main ground of challenge put forward by counsel for the applicants. He says that if a termination of pregnancy was ever to be included in the expression “medical treatment” which he disputes, it could only be a termination of pregnancy which was lawful, having regard to the Irish Constitution, and that in order to consider whether such termination was constitutional or not the second respondent would have to reconcile different rights under the Constitution including above all the right of the unborn and would have to deal with conflicts of rights. He seems to think that that is not appropriate for the District Court and certainly not an exercise that should be done in the context of an application to the District Court under the Child Care Act, 1991. I agree with the arguments put forward by counsel for the respondents and the Attorney General that underlying that submission of counsel for the applicants is a misconception as to the powers and jurisdiction of the District Court. The District Court is a court established under the Constitution. Its judges are sworn in to uphold the Constitution. In relation to every matter that a District Court Judge decides, he or she must always be conscious of the Constitution and rights under it. The only constitutional area in respect of which there is no jurisdiction in the District Court is the question of the validity of any statutory enactment having regard to the Constitution. That function is peculiarly reserved to the High Court or on appeal to the Supreme Court. But every other area of the Constitution comes within the province of both the District Court and the Circuit Court in the carrying out of their ordinary jurisdiction. Far from considering that a District Court Judge dealing with applications under the Child Care Act, 1991, is an inappropriate court to determine whether in any given case a termination of pregnancy should occur, I think that the opposite is the case. If anything, with the regular experience of dealing with children and their welfare, he or she may well be better equipped than a judge of the High Court. Furthermore, 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. The High Court undoubtedly has a function in granting injunctions to prevent unlawful terminations taking place and it may in certain circumstances properly entertain an action brought for declarations and consequential orders if somebody is being physically prevented without just cause from having a termination. But it would be wrong to turn the High Court into some kind of licensing authority for abortions and indeed it was for this reason that I have rejected a suggestion made by counsel for C. in this case that I should effectively convert the judicial review proceedings into an independent application invoking the inherent jurisdiction of the High Court and grant leave for such a termination to take place. I took the view that the case should continue in the form of a judicial review and nothing more. The Child Care Act, 1991 is a perfectly appropriate umbrella under which these questions can be determined. I therefore wholly reject the argument that a termination of pregnancy could not be included within the expression “medical treatment” because it would involve the consideration of various constitutional rights which is not the province of the District Court.

16. It is obvious from what I have already said that I totally reject the fourth and alternative ground of challenge put forward by the applicants, namely, that the relevant statutory provision under the Child Care Act, 1991, under which this direction was made is unconstitutional. In this regard I accept and adopt the arguments that have been made in court for the upholding of the constitutionality of those provisions and particularly the arguments of counsel for the Attorney General.

17. The next main ground of challenge is a somewhat related one. Section 24 of the Child Care Act, 1991, provides as follows:-

18. It is suggested that in disregarding the wishes of the applicants the second respondent failed in the application of s. 24, to have proper regard to the presumption that the paramount welfare of the child and her unborn child is best served by the care and control of the applicants as her parents contrary to the guarantee given by the State to protect the family in its Constitution. The first point to be made is that in relation to the unborn child the applicants would be grandparents and they have no constitutional rights as such but they would, prima facie, of course, have rights in relation to their daughter. However, it is quite clear from the transcript that full regard was given to the rights and duties of the natural parents. First of all the second respondent took the view and was entitled to take the view that the parents were neglectful parents and that the child should properly be in temporary care and secondly, not only did the second respondent listen to the evidence of the father A. but she specially asked that the mother B. should give evidence. It is clear that she listened to and absorbed the submissions made to her in relation to The Attorney General v. X [1992]1 I.R. 1. It is perfectly obvious, in my view, that she would have had regard to the constitutional right to life of the unborn, though it is not an absolute right. Under s. 24 the court must undoubtedly regard the welfare of the child as the first and paramount consideration and must give due consideration to the wishes of the child but it must do so within a constitutional framework and there is nothing whatsoever in s. 24 to indicate that the court is to ignore the right to life of the unborn conferred by the Constitution. Accordingly, there can be no question of s. 24 being invalid, having regard to the Constitution, which is the alternative claim.

19. The last ground of challenge relates to the actual findings of the second respondent. Counsel for the applicants argues that she did not find that, as a matter of probability, there is a real and substantial risk to the life of C. which can only be avoided by the termination of her pregnancy but, that rather, she made her order without regard to The Attorney General v. X [1992] 1 IR 1 and in the belief that she could make it pursuant to “the travel amendment”. The second respondent heard this case over many hours on the one day and gave judgment that evening. It is perfectly understandable that when the judgment was not reserved it could contain an unintended ambiguity, as I think there is in this case but I do not say that by way of any criticism of the second respondent who obviously prepared it under great pressure. What has given rise to the controversy is the wording of the following two paras. in the judgment which follow criticism of the parents:-

20. Those two passages in her judgment must be put in the context of the evidence as a whole with special reference to the evidence of Dr. B. and also to the legal submissions made to the second respondent by counsel. When she says that the threat of suicide is not imminent, I am satisfied that she is not intending to say anything different from what Dr. B. had said in evidence. What she is saying is that it is not immediately imminent and of course it is not required by The Attorney General v. X that the danger of suicide be immediate or imminent. But importantly she goes on to say that she is satisfied that if the pregnancy is allowed to continue the risk will increase substantially and I think that the use of that word “substantially” was deliberate and intended to correspond with the wording of the test under The Attorney General v. X. It is true that she does refer to Dr. McC. as well as Dr. B. Dr. McC. had carried out an assessment which was largely directed at competency and was never directed at the question of whether the girl had suicidal intentions. Although it did not occur to him that she could have suicidal intentions, he did not in any way demur from the report and evidence of Dr. B. When one reads the transcript as a whole, including the various interjections by the second respondent, I cannot interpret those passages in the judgment as being tantamount to saying that the grounds for a lawful termination of pregnancy in Ireland do not exist and that the termination of pregnancy can only take place in a foreign jurisdiction pursuant to an alleged right to travel. I am bound to say that on a reading of the transcript of the evidence, I fail to 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 could only be avoided by the termination of her pregnancy and I do not interpret the second respondent as coming to any different conclusion. I believe that her reference to “imminent” related in part to the answer which Dr. B. gave to question 322 in which he said that he had asked C. if she had any immediate intent of killing herself with a knife and she had said that she did and partly also from the evidence of Dr. B. to the effect that the suicidal intention would become real and immediate once she realised a court was not going to permit termination of her pregnancy.

21. The acceptance by the judge of the medical evidence is further indicated by her question to A., when he gave evidence at question 494:-

22. However, B. then gave evidence to the effect that she did not believe that if the child was back with her parents she would be suicidal. All the indications from the transcript, however, are that the second respondent accepted the evidence of Dr. B. An example of this is at p. 137 of the transcript where the second respondent, in dealing with submissions by counsel for the applicants, says the following:-

23. As I have earlier indicated, counsel for C. argues that even if the second respondent was not holding that there was a substantial risk of suicide which could only be avoided by the termination of the pregnancy, she was still lawfully entitled to make an order in all the circumstances permitting C. to travel to another jurisdiction to have an abortion. His argument is that as a result of “the travel amendment”, the child, in the care of her parents, can be brought to England by her parents to have an abortion on one of the grounds for which abortions are done in England. He says that if that is so, why should a child who is in care be disadvantaged and be not permitted to do so. He concludes from that, that a District Court Judge, exercising the jurisdiction under the Child Care Act, 1991, could authorise such travel. While of course I see the force of his argument and the anomaly in the eyes of a layman, (though possibly not in the eyes of a lawyer), which arises if he is wrong. On the other hand, counsel for the applicants points out that some pregnant children who might want an abortion in England would not be allowed to travel to have it by their parents whereas others would be and therefore he says that there is not necessarily anything unique about a child in care being prevented from doing so. Whether it throws up an anomaly or not, I cannot really accept counsel for C.’s argument in this regard. The original part of Article 40.3 .3° of the Constitution reads as follows:-

24. If there had not been the two amendments, that provision of the Constitution quite clearly not merely prohibits abortion but gives a positive right to life to the unborn, subject only to the exception where the mother’s life is endangered. The so-called travel amendment provides as follows:-

25. This amendment is framed in negative terms and must, in my view, be interpreted in the historical context in which it was inserted. There was, I think, a widespread feeling in the country that a repetition of The Attorney General v. X [1992] 1 IR 1, should not occur in that nobody should be injuncted from actually travelling out of the country for the purpose of an abortion. It must be remembered that three out of the five judges of the Supreme Court took the view that in an appropriate case a travel injunction could be granted. It was in that context, therefore that the amendment was made and I do not think it was ever intended to give some new substantial right. Rather, it was intended to prevent injunctions against travel or having an abortion abroad. A court of law, in considering the welfare of an Irish child in Ireland and considering whether on health grounds a termination of pregnancy was necessary, must, I believe, be confined to considering the grounds for termination which would be lawful under the Irish Constitution and cannot make a direction authorising travel to another jurisdiction for a different kind of abortion. The amended Constitution does not now confer a right to abortion outside of Ireland. It merely prevents injunctions against travelling for that purpose. I think that the view which I have taken conforms with the view of the Supreme Court in the Article 26 reference relating to the Information (Termination of Pregnancies) Bill, 1995 [1995] 1 I.R. 1 and as expressed in the judgment of the Court at p. 47. The Court says the following:-

26. The provisions of the Thirteenth Amendment are the provisions relating to travel. Counsel for C. in his argument relies particularly on the judgment of Keane J. in the Supreme Court in the Society for the Protection of Unborn Children Ireland Ltd. v. Grogan (Unreported, Supreme Court, 6th March, 1997) where at p. 34 Keane J. says the following:-

27. Keane J. then goes on to refer to the importance of the right to travel as a constitutional right and as discerned by Finlay P. (as he then was) in the State (M) v. Attorney General [1979] I.R. 73. But the fact that there may be different views as to the importance of the constitutional right to travel does not in my view affect the issue of whether the District Court under the Child Care Act, 1991, can actually exercise a jurisdiction authorising travel for a particular purpose, namely, for an abortion in circumstances where the proposed abortion would not be allowed under Irish law. I think that the court would be prevented from doing so by the terms of the right to life of the unborn expressed in the Constitution and as the Supreme Court have held, unaffected by “the travel amendment”.

28. But, as I have at any rate taken the view that the termination of pregnancy which was authorised by the second respondent was one which, both in her view and in my view, was lawful under the Irish Constitution, the question which I have just been discussing does not arise. But in case, as seems likely, this judgment is appealed to the Supreme Court, I think I should make clear that while I am refusing the judicial review sought for the reasons which I have indicated, I would have taken a different view and would have granted the order if contrary to my view on a true analysis the effect of the order is to authorise an abortion outside Ireland of a kind which would not be in conformity with the Irish Constitution. In the event, however, I refuse the orders and reliefs sought.