The State has told the High Court that the Health Service Executive has no legal power, by virtue of a care order, to direct the Garda to restrain a pregnant 17-year-old girl from travelling anywhere.
Counsel for the HSE said it was anxious to take whatever course of action was in the best interests of the girl but "within the legal parameters".
The HSE and State were outlining their positions in the case of Miss D who is four months pregnant with a baby who suffers from anencephaly, a condition where a major part of the brain is missing and where there is no prospect of survival outside the womb for more than a few days.
Miss D wants to go to Britain to terminate her pregnancy. She secured leave from Mr Justice Liam McKechnie yesterday to bring judicial review proceedings against the HSE and State in which she is seeking orders that she is entitled to travel to Britain for an abortion and that the HSE is not entitled to direct the Garda to restrain her from leaving the country.
The full case will open before the judge tomorrow. Neither the State nor the HSE opposed the leave application, with counsel for both accepting the matter was very urgent and required immediate resolution.
Donal O'Donnell SC, for the State, said his side was anxious for a full hearing as soon as possible. The Attorney General's position was that the HSE had no legal power to direct the Garda to restrain a person who was the subject of a care order, he said.
The Garda also had no legal power to restrain the girl simply because she was the subject of a care order, Mr O'Donnell added.
It was the Attorney General's position that the District Court care order did not restrain the girl from travelling anywhere, Mr O'Donnell said. Miss D is in care as a result of a care order made by the District Court on April 2nd under the Child Care Act 1991.
Counsel for the HSE, Gerry Durcan SC, said it was anxious to take whatever course of action best secured the girl's welfare, having regard to legal restraints where a child was subject to a care order.
The HSE wished to have a consultant psychiatrist see the girl, Mr Durcan added.
Gerard Hogan SC, for Miss D, told the judge he understood the HSE was not disputing the diagnosis that, at best, the foetus had a two to three days prognosis of existence after birth. He said it was of the greatest importance that the case be heard as speedily as possible.
Miss D claims she has been advised by the HSE that the Garda has been notified that she is not permitted to leave the State and that the District Court care order makes it unlawful for her to leave the State without HSE permission.
She is seeking orders from the High Court quashing the care order to the extent that it restricts her from travelling from the State and quashing the decision of the HSE to contact the Garda to request that she not be permitted to leave the State.
In her proceedings against the District Justice, the Health Services Executive, Ireland and the Attorney General, she also wants the court to overturn the decision of the HSE refusing to permit her to travel to procure the termination of her pregnancy unless she presented as "a suicide risk".
She wants the court to declare that there is no lawful basis for interference with her right to terminate her pregnancy and that the HSE decision to prevent her from leaving the State to procure a termination of her pregnancy constitutes an unlawful interference with her constitutional rights to personal autonomy, bodily integrity, private life and to travel.
At the outset of the proceedings yesterday, Mr Hogan said the girl's mother was in the court building. He had been informed the mother supported her daughter and would go along with whatever she decided.
Mr Justice McKechnie said it would be helpful if the mother was in court. When the mother came in, the judge directed she could be identified only as "Ms A" from the Leinster region.
When Ms A said she intended to apply for free legal aid, Mr Durcan said that if the Free Legal Aid Board could not process that application in time, the HSE would fund a solicitor for her.
Granting leave, Mr Justice McKechnie said the issues raised were of considerable importance and, whatever differences there may have been in the past between mother and daughter, the natural mother was entitled to be a notice party to the proceedings.
Mr Justice McKechnie directed the HSE to have its replying affidavits filed by today, with skeleton legal submissions sent to the court before the case goes ahead tomorrow.