HSE to challenge separate District Court decision
Miss D is in her 18th week of pregnancy with a baby suffering from anencephaly, a condition where most of its brain is missing and where it cannot survive more than three days after birth.
Yesterday, after hearing three days of legal submissions from five sets of lawyers in two sets of proceedings arising from the girl’s wish to travel for an abortion, Mr Justice Liam McKechnie said he could not give an immediate decision as requested by the HSE.
During the hearing the court was told the right to life of Miss D’s unborn child continues until it is dead and the courts cannot engage in a “measuring exercise” about the capacity of the child prior to birth, lawyers for the unborn told the court.
At the outset of the case Gerard Durcan SC, for the HSE, had asked the judge yesterday morning if he would give a decision later yesterday on whether the girl could travel or not. Counsel suggested the judge could give his decision in outline form and give his reasons later.
He said there was an “obvious stress” to Miss D and her right to travel had to be clarified. It was “hugely important” that this be resolved one way or the other, he urged.
When submissions concluded just before 5pm yesterday, the judge said he will give his decision at 2pm tomorrow. The case had implications and he was extremely conscious of these, he said.
The judge now has to consider two sets of judicial review proceedings. In the first, he has to decide whether Miss D is entitled to an order restraining the HSE from preventing her travelling for an abortion. She is also looking for a number of declarations, including that the HSE is not entitled to restrain her unless she is a suicide risk.
The second set of proceedings involve a challenge by the HSE to a decision by a district judge, made just last Saturday during a private hearing, refusing to grant the HSE an order allowing the girl to travel to Britain.
The High Court was told yesterday the district judge refused to grant the order on grounds it would amount to a failure by him to vindicate the right to life of the unborn and would be improper and unlawful.
The HSE, which has argued that a District Court order is necessary before the girl may travel, contends the district judge was wrong to refuse that order.
In their submissions in the case, lawyers for the Attroney General have argued there is no law under which the girl may be prevented from travelling to Britain.
They have also submitted the fact the girl is the subject of an interim care order does not permit her right to travel to be impinged upon.
Counsel for the unborn has also accepted there is no law restraining the girl from travelling submitted that no State agency may facilitate that travel.
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