A and B v Eastern Health Board

• Jurisdiction: Ireland
• Judge: Mr. Justice Geoghegan
• Judgment Date: 01 January 1998
• Neutral Citation: [1997] IEHC 176
• Court: High Court
• Docket Number: [1997 No. 414JR],414 J.R./1997.
• Date: 01 January 1998

[1997] IEHC 176

THE HIGH COURT

414 J.R./1997.

A & B v. EASTERN HEALTH BOARD & AG (C CASE)

JUDICIAL REVIEW

BETWEEN

A. AND B.

APPLICANTS

AND

EASTERN HEALTH BOARD JUDGE MARY FAHY ANDC.

RESPONDENTS

AND

THE ATTORNEY GENERAL

NOTICE PARTY

Synopsis

Children

Constitutional rights; jurisdiction of District Court; termination of pregnancy; conflict between parents" and childrens" rights; child pregnant after rape made subject of Interim Care Order; order made with directions regarding medical treatment of child; directions related to termination of pregnancy; applicants sought to have order quashed; whether applicants given fair hearing in District Court; whether expression "medical treatment" could include termination of pregnancy; whether District Judge could determine conflicting Constitutional rights raised; whether parents" rights properly considered; whether given risk of suicide not imminent but increasing substantially District Judge had jurisdiction to make order; ss.13(7) & 24 Child Care Act, 1991 Held: Parents received fair hearing given urgency of case; where it averts risk of suicide termination of pregnancy can constitute medical treatment; District Court appropriate forum for considering all the issues in this case; welfare of child paramount consideration; grounds for lawful termination must exist for authorisation of travel; relief refused (High Court: Geoghegan J.28/11/1997)- [1998] 1 IR 464

- [1998] 1 ILRM 460

A v. Eastern Health Board

1 Judgment of Mr. Justice Geoghegandelivered on the 28th day of November, 1997

INTRODUCTORY

2 This is an application brought pursuant to leave granted by Mr. Justice Flood for Judicial Review of an Order of the District Court made by Judge Mary Fahy on the 21st November, 1997 in proceedings under the Child Care Act, 1991between 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 District Judge had no jurisdiction tomake the Order which she did make. The relevant proceedings in the District Court took the form of an application by the Eastern Health Board 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 Section 17 of the Child Care Act, 1991.Subsection (4) of that Section provides as follows:-

"Where an Interim Care Order is made, the Justice may order that any directions given under subsection (7) of Section 13 may remain in force subject to such variations, if any, as he may see fit to make or the Justice may give directions in relation to any of the matters mentioned in the said subsection and the provisions of that Section shall apply with any necessary modifications."

3 Section 13(7) of the 1991 Act allows a Court when making an Emergency Care Order under Section 13 to give directions in relation to a number of specified matters. One of those specified matters is:-

"The medical or psychiatric examination, treatment or assessment of the child".

4 The application for the Section 17 Interim Care Order in this case was successful but the Court was asked to exercise its power under Section 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:-

"An Order pursuant to Sections 13(7)(a)(iii) and 17(4) of the Child Care Act, 1991"

(i) directing that the child (C.) be permitted to proceed to such place as may be appropriate for the purpose of securing treatment, to wit, a termination of her pregnancy;

(ii) directing that the said (C.) be afforded the said treatment to wit the termination of her pregnancy;

(iii) directing that the Eastern Health Board, its servant or agent be permitted to execute all such documents whether in respect of consent to the said treatment being afforded to the said child or otherwise as may be necessary or incidental to the child receiving the said treatment or such further treatment or examination as may be advised by her medicaladvisers;

(iv) directing that the said child be afforded such further treatment(s) and/or examination(s) as may be advised by her medical advisers;

(v) permitting the Eastern Health Board to make all such arrangements as may be required to facilitate the implementation of these directions forthwith."

5 No attack is being made on the Interim Care Order. That Order was only to last till 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 donebyagreement 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.

GROUNDS OF APPLICATION

6 The challenge to the directions of Judge Fahy 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:-

7 1. That the Applicants who, at the stage of the District Court hearing were opposed to the proposed abortion, did not get a fairhearing.

8 2. That the expression "medical or psychiatric examination, treatment or assessment" could never be interpreted to include a termination of pregnancy whether lawful or unlawful.

9 3. That an interpretation of those words which included a termination of pregnancy or even only a lawful termination of pregnancy necessarily involved construing the statutory provisions and that that task in turn necessarily involved consideration of conflict between and the reconciliation of different constitutional rights, an exercise which the District Court allegedly is not empowered to do.

10 4. That if the expression "medical or psychiatric examination, treatment or assessment" does cover terminations of pregnancy whether lawful or unlawfulthe relevant statutory provision is invalid having regard to the Constitution on the grounds that such a provision would then be an unjust attack on the right to life of the unborn child and on the constitutional authority of the family and would also be a breach of the State's guarantee to respect the inalienable right and duty to provide for the moral education of C..

11 5. That she failed properly to have regard to the rights and duties of parents as she was obliged to do under Section 24 of the Child Care Act, 1991or alternatively if the Judge correctly construed that Section and her powers under it, it is unconstitutional.

12 6. That the Judge in her judgment had held that the evidence before her failed to satisfy the tests set down in the Attorney General -v- X. 1992 II.R. 1 but that she nonetheless made the direction sought.

REPRESENTATION

13 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. Iarfhlaith 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 Mr. Justice Flood 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. DonalO"Donnell, S.C. and Mr. Barniville have beeninstructed 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 having been instructed by the Attorney General to represent the unborn child whose rights are being asserted in the case.

GROUNDS OF OPPOSITION

14 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 Mr. Durcan 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 toargue:-

15 1. That the District Judge had found as a fact that there was a real and substantial risk to the life of the mother and that she was likely to take her own life if she was not allowed to terminate her pregnancy and that this danger of suicide was not otherwise preventable. Such a finding, of course, if established would bring the case within the principles laid down by the Supreme Court in A.G. -v-X. 1992 1I.R. 1.

16 2. That if he was wrong in that submission, then pursuant to the so called "travel amendment" incorporated into Article 40.3.3. of the Constitution, the Judge was lawfully permitting the child C. to travel to another jurisdiction to have an abortion. Mr. McDowell...