The C Case

AuthorJames Dalton
PositionSenior Sophister Law student, Trinity College, Dublin
Pages55-70
The
C
Case
THE
C
CASE
JAMES
DALTON*
Introduction
The
C
case'
concerned
a
woman's
right
to
travel
out
of
the
state
to
procure
an
abortion,
as
did
the
X
case.
2 In
judicial
review
proceedings
in
the
High Court
Geoghegan
J.
resolved
this issue
3
by
directly
engaging
with
the
"substantive
issue",
i.e.
whether
the
mother
had
a
right
to
an
abortion
at
Irish
law.
While
it
may
be
desirable that
the
substantive moral
issues
underlying
the
abortion
controversy
are
addressed,
it is
questionable
whether
such
a
method
of
resolution
is
to
be
preferred
as
a
judicial
strategy
in
a
case
such
as
C.
It
put
a
court
in
the
invidious position
of
deciding
whether
a
life
4
might
lawfully
be
taken,
5
and
of
deciding
how certain moral
precepts,
encapsulated
in
judicial
formulae which establish
a
high
threshold
of
protection
for
the
unborn,
were to
be
applied
to
a
girl
whose
plight tended
to
evoke
sympathy rather than
condemnation.
The
application
of
this
strategy
to
the
C
case
will be examined; and
an
alternative
conceptualisation
of
the
problem,
which
views
it
as
a
right-to-travel
question
rather
than
an
abortion
issue
per
se,
will be
considered.
*Senior Sophister
Law
student,
Trinity
College,
Dublin.
1
A
and
B
v.
Eastern
Health
Board,
Judge
Mary
Fahy
and
C,
and
the
Attorney
General
(notice
party),
Unreported, High
Court,
28
November
1997,
Geoghegan
J,
hereinafter
referred
to
as
the
C
case.
2
Attorney
General
v.
X [
1,
hereinafter
referred
to
as
the
X
case.
Hence,
the
Irish
Law
Times' designation
of
the
case
as
"the
X
case
mark
II"
in
its
editorial
of
December
1997.
Inasmuch
as
the
High
Court
generally
resolves issues on
applications
for
judicial
review.
It
is
one
of
the cardinal
principles
of
judicial
review that
the
reviewing court
limits
itself
to
examining
the legality
of
the
decision
of
the
lower
tribunal's
decision
and
it
does
not
reverse
the
decision
because
it
would
have
appraised
the facts
differently.
4
The right
to
life
of
the
unborn
is
protected
by
the
Eighth
Amendment
of
the
Constitution,
Article
40.3.3.
5
Unlike
the
criminal case
of
self-defence,
where
the
decision
is
made
ex
post
facto,
a
court
is
obliged
to
make
a
positive
decision
before
the life
of
the
unborn
is
still
taken.
1998]
56
Trinity
College
Law
Review
[Vol.
1
Facts and
Decision
The
case
centred
on
a
pregnant
thirteen-and-a-half
year old
girl,
a
member
of
the
travelling
community,
who
had
allegedly
been
raped
by
a
friend
of
the family.
The
girl
had
been placed with
a
foster
parent. An
application
was
made
to
the
District
Court
for an
interim
care
order
under
s.17
of
the
child
care act
1991
requesting
that
specific
directions
be
made
under
the
aegis
of
s.
17(4)6
regarding
the
"medical
treatment"
of
the
girl,
7
so
as
to
enable
her
to
travel
abroad
for an
abortion.
Evidences
was
adduced
to
show
that
the
traumatised
girl
was
unable
to
relate
to the
unborn
child
inside
her;
that,
as
time
passed, the
girl
would
no
longer
be
able
to
deny
the
existence
of
the
child
and
a
critical
situation would
thus
develop.
The
evidence
described
threats
of
suicide
made
as
"real"
and
the
risk
of
suicide
in
the
event
of
an
abortion
being
denied
as
"very
significant",
although
it
was
not
"immediately imminent".
The
District
Court
judge
accepted
this
evidence and was
satisfied that
the
X
case
criterion
of
there
being
a
substantial
risk
to
the
life
of
the
mother
was
satisfied.
The
directions
sought
were
accordingly
made9.
6
This
section
reads:
'
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.
7
This
subsection makes
a
reference
to
s.13(7)
of
the
Child
Care
Act,
which
provides
that
directions
of
certain specified types
may
be
made regarding
the
care
of
the
child, including
"medical
treatment".
8
Dr
Gerard
Byrne,
a
paediatric
psychiatrist,
presented
this
evidence.
The
judge
also
relied
on
the
testimony
of
Dr
McCarthy:
Dr
McCarthy's
inquiry
was
directed
to
the issue
of
competency and not
to
any
suicidal intentions
the
girl
might have,
but
he
did
not
demur
in
any
way
from
the
report
of
Dr
Byrne.
See
Geoghegan
J.
at
p.18
of
the
judgment.
9
Judge Mary
Fahy's
statement
of
conclusions
was interpreted
to
this effect
by
Geoghegan
J.,
although
they did
not
precisely express
this conclusion
in
the eyes
of
the applicant-parents
in
the
High
Court.
The two key
paragraphs
read:
Therefore
I
am
not
satisfied
that
their
daughter's
welfare
is
the
most
important
consideration
for
[the
parents]. Having
talked
to
[C.]
and
having regard
to
the
professional
medical evidence
from
Dr.
McCarthy
and
Dr.
Byrne,
I
am
of
the
opinion
that
the test
as
set
down
in
the
X
case
has
not
been met,
as
I do
not
believe
that
the
threat
of
suicide
is
imminent.
However,
I
am
satisfied
that
if
the
pregnancy
is
allowed
to
continue
the
risk
will
increase
substantially
and
therefore
I
make
the
Order that
the child
be
afforded
the
right

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