After four days, High Court gets to key issue

IT took four days for the High Court to address the key question in the landmark hearing in which a pregnant teenager challenged the right of the Health Service Executive to try and prevent her travelling to Britain for an abortion.

While time might be of the essence for the young girl — known only a Miss D — who is 17 weeks’ pregnant with a child that will not survive outside the womb, the fact is that wheels of justice still manage to grind very slowly.

It was already known that a HSE official had written to the local garda superintendent where Miss D lives, in Leinster, requesting gardaí to prevent her from travelling to Britain for an abortion.

Yesterday, it emerged that the HSE had taken the additional step of writing to the Passport Office to say that it did not consent to the issuing of a passport to Miss D.

Counsel for the HSE, Gerard Durcan SC, was already on his feet for over an hour defending the controversial stance adopted by the health authorities when Mr Justice Liam McKechnie made a timely intervention.

In his gentle, affable manner, the judge inquired what exactly was the HSE’s view on what was the girl’s best interests. It was a question that cut to the kernel of the case and one which seemed long overdue.

However, Mr Durcan effectively kicked to touch by claiming the HSE’s position had always been that Miss D would require the authorisation of the District Court to travel outside the jurisdiction for an abortion.

Showing the slightest hint of impatience, Mr Justice McKechnie observed that he could never see the case being finalised until the HSE was prepared to state its view on what it thought was best for Miss D.

Mr Durcan outlined how HSE personnel had acted in good faith and in the young girl’s interests at all times in the context of their legal obligations to her, especially given they had found themselves “in awkward circumstances”.

Mr Durcan also argued that the HSE would no longer be in a position to exercise direction and control over a girl in their care, if she was allowed to travel abroad for whatever reason. Nobody pointed out that a similar situation seemed to exist already as Miss D has left the B&B accommodation provided by the HSE to go and live with her boyfriend and his family.

After adjourning for lunch, Mr Durcan finally got around to answering the judge’s key question by stating that the HSE would not stop the teenager from travelling abroad if:

a) The District Court was satisfied that her decision to have an abortion was fully considered.

b) She preferably had received counselling,

c) Miss D’s mother supported her daughter’s wishes.

d) The District Court was satisfied allowing her to travel was lawful.

Translated: “We’re happy if everyone else is.”

Mr Justice McKechnie pointedly remarked that he would have thought the HSE and not Miss D’s representatives should make such an application to the District Court.

Although the HSE had taken the view that Miss D should not be allowed to travel abroad, Mr Durcan said, in a reply to a query from the judge, that the HSE had not sought a High Court injunction to prevent her from getting a foreign abortion because they would have been “subject to even greater criticism”.

While Miss D’s mother listened intently to yesterday’s proceedings, her daughter stayed well away from the courtroom and the HSE’s confused attempt at conducting a U-turn without anyone noticing.