A and B v Eastern Health Board, Judge Mary Fahy and C and the Attorney General (notice party) High Court [1998] 1 ILRM 460

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1 A and B v Eastern Health Board, Judge Mary Fahy and C and the Attorney General (notice party) High Court [1998] 1 ILRM 460 HEARING-DATES: 28 November November 1997 Judicial Review -- Certiorari -- Application to District Court by health board for temporary care order in respect of child who had become pregnant as a result of an alleged rape -- Application for direction to permit child to travel outside the State for purposes of termination of her pregnancy -- Child evinced suicidal intentions should pregnancy continue -- Psychiatric evidence of a very significant risk of suicide -- Parents of child originally in favour of termination changing their minds and opposing a termination -- District Court order that child be afforded the right to travel to another jurisdiction to obtain a termination of her pregnancy -- Whether parents denied fair procedures -- Whether termination of pregnancy came within the statutory expression 'medical or psychiatric examination, treatment or assessment' -- Whether District Court had jurisdiction to construe statutory provisions which involved a consideration of conflict between different constitutional rights -- Whether statutory provisions were invalid having regard to the Constitution because they amounted to art unjust attack on the right to life of the unborn child -- Whether district judge failed to have regard to the rights and duties of parents -- Whether district judge had satisfied herself that there was a real and substantial risk to the life of the child -- Child Care Act 1991 (No 17), ss 13, 17, Constitution of Ireland 1937, Article o Article o of the Constitution originally provided that: The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right. The Thirteenth Amendment to the Constitution added the following provision to subs 3: This subsection shall not limit freedom to travel between the State and another State. S 17(4) of the Child Care Act 1991 provides: Where an interim care order is made, the justice may order that any directions given under s 13(7) 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. S 13(7) allows a court when making an emergency care order under s 13 to give directions in relation to the 'medical or psychiatric examination, treatment or assessment of the child'. S 24 provides that: In any proceedings before a court under this Act in relation to the care and protection of a child, the court, having regard to the rights and duties of parents, whether under the Constitution or otherwise, shall (a) regard the welfare of the child as the first and paramount consideration, and (b)

2 in so far as is practicable, give due consideration, having regard to his age and understanding, to the wishes of the child. The applicants, A and B, who were members of the travelling community were the parents of twelve children. On 27 August 1997 their daughter C, who was thirteen years of age, was allegedly raped by an adult male and became pregnant. C lived in very poor conditions. The alleged rapist was also a member of the travelling community and was alleged to be a long-standing friend of the family. C was very severely traumatised by the alleged rape. The Eastern Health Board applied to the District Court for an interim care order in respect of C. She was placed with a foster mother with the approval of her parents, A and B. At all times C expressed a wish to have an abortion. Her parents, A and B, for some period were not only supportive of their daughter's wish to have an abortion but were advocating it. The District Court hearing was listed for 21 November It appeared that up until 18 November 1997 it had been decided, with the approval of A and B, that the Eastern Health Board would not seek a further interim care order but it would permit the foster mother to travel to England with C so that she could have her pregnancy terminated. Counsel for C asked the District Court for a short adjournment to enable him to discuss the matter with C and to make absolutely sure that this was her wish. Following this adjournment it was confirmed to the court that C wanted to travel to England for a termination of her pregnancy. However, in the meantime A and B changed their minds and decided to oppose any abortion. On 19 November 1997 C's father personally informed the District Court that he was now opposing the abortion. The district judge informed him that all of these matters would be dealt with on Friday, 21 November The applicants discharged their solicitor and counsel and engaged new solicitors and counsel with a view to opposing the abortion. The application for the interim care order and unspecified directions in respect of the medical treatment of C under ss 13(7) and 17(4) was served on the applicants on Thursday night, 20 November Notice of the particular directions which were sought to accompany the interim care order was not given until the morning of Friday, 21 November 1997 when the applicants were represented by their new counsel and solicitors. In particular the Eastern Health Board sought an order 'directing that 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'. The District Court heard evidence from two psychiatrists, Dr McCarthy and Dr Byrne. Dr Byrne gave evidence that C had stated that she would kill herself if she had the child. It was his clinical judgment that her suicidal intentions were real and that she would act on them if she did not achieve the termination of her pregnancy. He stated that there was a very significant risk of suicide and that risk was becoming more immediate because as time went on she was becoming less able to deny the existence of the pregnancy. Towards the end of 21 November 1997 counsel for C's parents applied for a short adjournment until the following Monday so that he could consult with a psychiatrist with a view to cross-examining Dr Byrne. This application for an adjournment was refused. The district judge held that the threat of suicide was not imminent. However, she was satisfied that if the pregnancy was allowed to continue the threat would increase substantially. She made an order that C be afforded the right to travel to another jurisdiction to obtain a termination of her pregnancy. The applicants were granted leave to apply by way of judicial review for an order of certiorari quashing the order of District Judge Mary Fahy of 21 November The applicants claimed that they were denied a fair hearing in the District Court. It was also claimed that the expression 'medical or psychiatric examination, treatment or assessment' in s 13 of the 1991 Act could never be interpreted to include a termination of a pregnancy which was lawful or unlawful. It was further submitted that an interpretation of those words involved construing the statutory provisions and

3 different constitutional rights which was an exercise which the District Court was not empowered to do. If the expression 'medical or psychiatric examination, treatment or assessment' covered terminations of pregnancy, whether lawful or unlawful, it was submitted that the relevant statutory provision was invalid having regard to the Constitution because such a provision would amount to an unjust attack on the right to life of the unborn child, 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. It was also claimed that the district judge failed to have regard to the rights and duties of parents under s 24 of the 1991 Act and, in the alternative, if the district judge correctly construed that section, it was unconstitutional. It was also submitted that the district judge had held that the evidence before her had failed to satisfy the tests laid down in Attorney General v X [1992] 1 IR 1; [1992] ILRM 401, but she nonetheless proceeded to make the directions sought by the health board. Held by Geoghegan J in refusing the relief sought: (1) It could amount to a breach of fair procedures to embark upon the hearing of an application for an important order in circumstances where the complaining party had no prior notice of the particular order sought. However, the circumstances of this case were exceptional. Quite a long period had already elapsed from the commencement of the pregnancy. If there was going to be a termination it was essential that the matter be dealt with as quickly as possible. The applicants were well aware that the question of the termination of the pregnancy was a very live issue. This had become all the more so as a result of their change of mind and the district judge had indicated on 19 November 1997 that this issue would be dealt with on the following Friday, 21 November (2) Proceedings under the Child Care Act 1991 were in the nature of an inquiry rather than adversarial. The district judge was entitled to take the view that as C had been assessed by two psychiatrists that she was entitled to proceed with the hearing notwithstanding the late notice of the directions sought. (3) There was evidence that further investigations either by a new psychiatrist or by the psychiatrists who had already questioned C were not in the interests of C's mental health. The District Court had the benefit of the evidence of two reputable psychiatrists. The trial judge was entitled to take the view that it was not desirable that another psychiatrist be introduced into the proceedings. She was also entitled to decide what witnesses were necessary for her to make up her mind as to what was in the best interests of the child, C, while giving a fair hearing to all the relevant parties which she did by hearing the evidence of the applicants. (4) The district judge wrongly and unreasonably refused the application for an adjournment of the proceedings on the afternoon of Friday, 21 November to enable the applicants to consult with a psychiatrist with a view to cross-examining Dr Byrne. Although the matter was urgent, there had to be a balance between the urgency of the case and the adoption of fair procedures. It was obvious that this case was going to end up in the High Court and Supreme Court. In a different type of case the High Court might take the view that the order ought to be quashed and the matter sent back to the District Court for hearing because of the refusal of the adjournment. However, certiorari was a discretionary remedy. Having regard to all the circumstances of the case, including the nature of the hearing which did in fact take place, 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 district judge, as a matter of discretion the order should not be quashed on this ground. (5) The district judge had a discretion whether to grant a stay pending an appeal. She chose not to do so. Even if she ought to have done so the applicants have not suffered as a result of her refusal as they proceeded by way of an application for judicial review. They obtained immediate

4 leave to apply in this regard which was accompanied by an injunction in the form of a stay. (6) Where a psychiatrist gives evidence to the effect that a child is likely to commit suicide unless she has a termination of her pregnancy, that termination which is a medical procedure is clearly also a medical treatment for her mental condition. The psychiatric evidence was that C had stated that she would kill herself if she had the child and if she did not achieve the termination of her pregnancy she would act on these suicidal intentions. Dr Byrne gave evidence that there was a very significant degree of risk in this regard. In the light of this psychiatric evidence, including the advice that she undergo medical procedures involving the termination of her pregnancy because of her suicidal tendencies, such medical procedures had to constitute 'medical treatment' within any normal definition. (7) It was not necessary to consider whether all terminations of pregnancy came within the expression 'medical treatment' contained in s 13 of the 1991 Act. On the facts of this case the termination of pregnancy came within that expression. (8) 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 judge decides, he or she must always be conscious of the Constitution and the rights under it. The only constitutional area in respect of which the District Court has no jurisdiction is the question of the validity of any statutory enactment having regard to the Constitution. That function is reserved to the High Court and on appeal to the Supreme Court. 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 jurisdictions. (9) The District Court in dealing with applications under the 1991 Act is an appropriate court to determine whether in any given case a termination of pregnancy should occur. Having regard to the regular experience of dealing with children and their welfare, a district judge may well be better equipped than a judge of the High Court in this regard. (10) It was not desirable 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 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 physically prevented without just cause from having a termination. However, it would be wrong to turn the High Court into some kind of licensing authority for abortions. The Child Care Act 1991 was a perfectly appropriate umbrella under which these questions can be determined. It had not been established that the provisions of the 1991 Act were unconstitutional. (11) In relation to the unborn child the applicants would be grandparents and as such they have no constitutional rights. They would, prima facie, have rights in relation to their daughter, C. It was clear that full regard was given to the rights and duties of the natural parents. First, the district judge was entitled to take the view that the applicants were neglectful parents and their child C should properly be in temporary care. Secondly, she listened to the evidence of the father and she asked that the mother also give evidence. (12) Under s 24 of the 1991 Act the court must regard the welfare of the child as the first and paramount consideration. It must give due consideration to the wishes of the child, but it must do so within a constitutional framework. There was nothing whatsoever in s 24 to indicate that the court was to ignore the right to life of the unborn conferred by the Constitution. Accordingly, there could be no question of s 24 being invalid having regard to the Constitution.

5 (13) The original part of Article o of the Constitution clearly not only prohibited abortion but also gave a positive right to life to the unborn subject only to the exception where the mother's life is endangered. The thirteenth amendment is framed in negative terms and must be interpreted in the historical context in which it was inserted into the Constitution. There was a widespread feeling in the State that a repetition of the circumstances of the X case should not occur in that nobody should be injuncted from actually travelling out of the State for the purpose of an abortion. It was in that context that the amendment was made. It was not intended to give some new substantial right. Instead, it was intended to prevent injunctions against travel or having an abortion abroad. (14) A court in considering the welfare of an Irish child in Ireland and whether on health grounds a termination of pregnancy was necessary must confine itself to a consideration of the grounds for a termination which would be lawful under the Irish Constitution. The court 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 an abortion outside Ireland. It merely prevents injunctions against travelling for that purpose. (15) If there is a real and substantial risk to the life, as distinct from the health, of the mother and that risk can only be avoided by the termination of the mother's pregnancy then such a termination is permissible and is not unlawful having regard to the provisions of Article o of the Constitution. This position is unaltered by either the provisions of the thirteenth or fourteenth amendments to the Constitution. (16) The fact that there may be different views as to the importance of the constitutional right to travel does not affect the issue of whether the District Court under the 1991 Act can actually exercise a jurisdiction authorising travel abroad for an abortion in circumstances where the proposed abortion would not be permitted under Irish law. The court in such circumstances would be prevented from doing so by the terms of the right to life of the unborn expressed in the Constitution which was unaffected by the thirteenth amendment. (17) While the district judge found that the threat of suicide was not immediately imminent, she was satisfied that if the pregnancy was allowed to continue the risk would increase substantially. She concluded that 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. The termination of pregnancy which was authorised by the district judge was one which was lawful under the Irish Constitution. (18) The court would have taken a different view and would have granted the relief sought if on an analysis of the District Court order it was found to authorise an abortion outside the State of a kind which would not be in conformity with the Irish Constitution. CASES-REF-TO: Article 26 and the Regulation of Information (Services outside the State for Termination of Pregnancies) Bill 1995, In re [1995] 1 IR 1; [1995] 2 ILRM 81 Attorney General v X [1992] 1 IR 1; [1992] ILRM 401 Society for the Protection of Unborn Children Ireland Ltd v Grogan Supreme Court, 1992 No 317, 6 March 1997 Southern Health Board v CH [1996] 1 IR 219; [1996] 2 ILRM 142 State (M) v Attorney General [1979] IR 73 COUNSEL: Iarfhlaith O'Neill SC and Bernard McDonagh for the applicants; Gerard Durcan SC and Paul

6 McDermott for C; Michael McDowell SC and Carmel Stewart for the Eastern Health Board; Donal O'Donnell SC and David Barniville for the Attorney General; James O'Reilly SC and Shane Murphy for the Attorney General (representing the unborn child) Solicitors for the applicants: Seamus Maguire & Co; Solicitors for C: Hussey & Bates; Solicitors for the Eastern Health Board: Roger Greene & Son; Solicitor for the Attorney General: Chief State Solicitor PANEL: Geoghegan J JUDGMENTS: GEOGHEGAN J delivered his judgment on 28 November 1997 saying: Introductory This is an application brought pursuant to leave granted by Flood J for judicial review of an order of the District Court made by Judge Mary Fahy on 21 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 district judge 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 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 s 17 of the Child Care Act Subs (4) of that section provides as follows: Where an interim care order is made, the justice may order that any directions given under s 13(7) 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. S 13(7) of the 1991 Act allows a court when making an emergency care order under s 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. 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: An order pursuant to ss 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 medical advisers;

7 (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. 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 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 is still prima facie in force. Grounds of application 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: 1. That the applicants who, at the stage of the District Court hearing were opposed to the proposed abortion, did not get a fair hearing. 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. 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. 4. That if the expression 'medical or psychiatric examination, treatment or assessment' does cover terminations of pregnancy whether lawful or unlawful the 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. 5. That she failed properly to have regard to the rights and duties of parents as she was obliged to do under s 24 of the Child Care Act 1991 or alternatively if the judge correctly construed that section and her powers under it, it is unconstitutional. 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] 1 IR 1; [1992] ILRM 401 but that she nonetheless made the direction sought. Representation 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 SC and Mr Bernard McDonagh appear for the parents, A and B, of the child C and they are the applicants in the proceedings. Mr Durcan SC and Mr McDermott, appear for the child in care, C. Mr McDowell SC and Ms Stewart appear for

8 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 SC 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 SC and Mr Shane Murphy have been instructed by the Attorney General to represent the unborn child whose rights are being asserted in the case. Grounds of opposition 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 to argue: 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 Attorney General v X [1992] 1 IR That if he was wrong in that submission, then pursuant to the so called 'travel amendment' incorporated into Article o of the Constitution, the judge was lawfully permitting the child C to travel to another jurisdiction to have an abortion. Mr McDowell and Mr O'Donnell have essentially adopted the first of these arguments and adopted a neutral stance on the second or in the case of Mr O'Donnell it might now be more accurate to note that he did not see any reason to argue the point as he did not think it arose. Background facts The young girl C is now 13 1/2 years of age. She was brutally raped by an adult male on 27 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 that 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 that 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 50 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

9 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. The District Court hearing took place on Friday, 21 November But as late as the previous Tuesday, ie Tuesday, 18 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 Mr Durcan SC, counsel for the girl 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 Mr Durcan 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, 19 November in Judge Fahy's court when the father, who at that time was still being represented by his original counsel Mr Coleman Fitzgerald, personally informed the court that he was now opposing the abortion. He was told by Judge Fahy 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 Mr Durcan and Mr McDowell strongly argued that at the very latest from that Wednesday, the applicant B 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. The applicants' case At this point it is appropriate to deal in turn with each of the grounds on which the applicants seek to impugn Judge Fahy'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: 1. That Mr O'Neill was unable to do proper justice to his client's case, in that he had no knowledge that an authority to terminate the pregnancy was being sought until the morning of the hearing. 2. That the District Court judge refused his request to make a direction under s 17(4) of the Child Care Act 1991 that C be assessed by a psychiatrist nominated by the applicants. 3. That an application made in the late evening for a short adjournment until the Monday to enable the applicants' lawyers consult with a psychiatrist in order to be in a position to challenge the psychiatric evidence before the court was refused. 4. That a stay on the order pending an appeal was also refused. 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 B for the reasons which I have indicated and I have little doubt his wife as well would have been well aware that the question of the termination of

10 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 are in the nature of an inquiry rather than adversarial in nature. The judge 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 parents' 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 McCarthy and Dr Gerard Byrne the paediatric psychiatrist who regularly gives evidence in the family courts. The judge 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 CH [1996] 1 IR 219; [1996] 2 ILRM 142. Having regard to the clear urgency of the matter the judge was entitled also to proceed with the case notwithstanding the late notice of the direction sought. The third of Mr O'Neill's procedural objections is rather different and I believe it to be wellfounded. Towards the end of a very long day of hearing Mr O'Neill applied to the judge 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 Byrne. In my view she wrongly and unreasonably refused that 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 district judge, that as a matter of discretion I ought not to quash the order on this ground. The fourth procedural objection of Mr O'Neill's is not sustainable in my view. The judge 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. I now turn to the second main ground of challenge as summarised above. This is the question of the interpretation of the expression 'the medical or psychiatric examination, treatment or assessment of the child'. Mr O'Neill argues that the expression 'medical treatment' could never include termination of pregnancy. I disagree. Mr Durcan 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

11 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 Byrne. In answer to question 336 in the transcript ie '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 Byrne 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. At question 381 Dr Byrne said there was an urgent situation because of the suicidal risk which was an immediate risk. At question 392 Dr Byrne 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 Byrne 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 Judge Fahy did involve medical treatment and came within the statutory provision. This brings me to the next main ground of challenge put forward by Mr O'Neill. 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 District Court judge 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 I agree with the arguments put forward by Mr McDowell, Mr Durcan and Mr O'Donnell that underlying that submission of Mr O'Neill 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 jurisdictions. 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

12 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 Mr Durcan 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 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. 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 provisions under the Child Care Act under which this direction was made are 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 Mr O'Donnell, counsel for the Attorney General. The next main ground of challenge is a somewhat related one. S 24 of the Child Care Act 1991 provides as follows: In any proceedings before a court under this Act in relation to the care and protection of a child, the court, having regard to the rights and duties of parents, whether under the Constitution or otherwise, shall -- (a) regard the welfare of the child as the first and paramount consideration, and (b) in so far as is practicable, give due consideration, having regard to his age and understanding, to the wishes of the child. It is suggested that in disregarding the wishes of the applicants the judge 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 judge 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 judge listen to the evidence of the father B but she specially asked that the mother A should give evidence. It is clear that she listened to and absorbed the submissions made to her in relation to the X case. 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

13 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. The last ground of challenge relates to the actual findings of the judge. Mr O'Neill 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 X case and in the belief that she could make it pursuant to 'the travel amendment'. Judge Fahy 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 District Court judge who obviously prepared it under great pressure. What has given rise to the controversy is the wording of the following two paragraphs in the judgment which follow criticism of the parents: Therefore I am not satisfied that their daughter's welfare is the most important consideration for them. 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 to travel to another jurisdiction to avail of the facility of termination of her pregnancy, with all ancillary services to include counselling for her to be provided. 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 Byrne and also to the legal submissions made to the judge 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 Byrne had said in evidence. What she is saying is that it is not immediately imminent and of course it is not required by the X case 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 X case. It is true that she does refer to Dr McCarthy as well as Dr Byrne. Dr McCarthy 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 Byrne. When one reads the transcript as a whole, including the various interjections by the judge, 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 Judge Fahy as coming to any different conclusion. I believe that her reference to 'imminent' related in part to the answer which Dr Byrne gave to question 332 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 not and partly also from the evidence of Dr Byrne 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. The acceptance by the judge of the medical evidence is further indicated by her question to B when he gave evidence at question 494: