High Court grants HSE consent for termination of pregnancy for minor lacking capacity with parental non-objection.

[APPROVED]

[REDACTED]

THE HIGH COURT

WARDS OF COURT

[2025] IEHC 604

WOC 11893

IN THE MATTER OF AN INTENDED APPLICATION FOR MINOR WARDSHIP

IN THE MATTER OF:-

DE [A MINOR]

Ex Tempore JUDGMENT of Mr Justice David Barniville, President of the High Court, delivered on 29th October 2025

1. This is a very urgent application which has been made by the HSE in the context of minor wardship proceedings involving a young girl who will turn 16 in just over a week. I will refer to her as the “minor”.

2. The application by the HSE is that the Court would provide consent to the termination of a pregnancy of the minor in circumstances where the evidence establishes that the minor herself lacks capacity, not just legal capacity, but also mental capacity in the sense of the capacity to make a decision, on a functional capacity basis, to provide her own consent to the procedure and where, for their own good reasons, her two parents are both not in a position to provide consent to the termination procedure. However, both have now confirmed that they are not objecting to the orders being made and I will come to the slightly more nuanced difference between the two of them shortly.

3. I do not intend to deliver a very lengthy judgment in the application; it is my intention to make the orders sought by the HSE in this case, in the exercise of my minor wardship jurisdiction, taking into account the provisions of Article 42A of the Constitution.

4. The minor wardship proceedings commenced when an application was made by the HSE, on an ex parte basis, to Heslin J on 21 October 2025. On that date he made various orders, including an order directing that the proceedings be heard in camera under section 45 of the Courts (Supplemental Provisions) Act 1961. I continued that order when the matter was before me last Friday, 24 October and again today on 29 October 2025.

5. On 21 October Heslin J appointed Ms K to act as Guardian ad Litem for the minor respondent to the proceedings and made an order joining the Child and Family Agency as a Notice Party. He gave liberty to the HSE to issue a Notice of Motion in the proceedings and that motion then was served on the minor’s mother and father. The motion was returnable before me on Friday, 24 October. On that occasion it emerged that it was going to be necessary for the minor’s parents to be separately represented and the matter was adjourned to be heard by me this afternoon.

6. I also made an order giving the HSE liberty to issue a minor wardship summons, which I directed also be returnable before the Court today. The minor summons, therefore, also appears before the Court as well as the HSE’s motion.

7. In the meantime, the minor’s father has obtained separate representation and we also have the benefit in court today of a translator/interpreter Ms Nonsi Phuti who has been available to assist in the event that either the minor’s mother or father required any particular aspect of the hearing to be translated.

8. The circumstances in which the application is made were set out in Ms Kelleher’s original affidavit sworn on 21 October 2025. As she explained, the minor is a 15, now almost 16 year old, young girl living in International Protection Accommodation. She was at that point 13 weeks pregnant and is now 14 weeks pregnant and it is her wish to terminate the pregnancy.

9. Two medical practitioners, having examined the minor, formed the opinion that there is a risk of serious harm to the health of the minor unless a termination were to take place. As Ms Kelleher explained, the Court was being asked to exercise its minor wardship jurisdiction in order to provide consent on behalf of the minor to the termination of the pregnancy. Ms Kelleher contended that provisions of the relevant statutory provision, which is section 9 of the Health (Regulation of Termination of Pregnancy) Act 2018 (the “2018 Act”) have been complied with, and I will come to those in a moment, in that two medical practitioners have confirmed their opinion that there is a risk of serious harm to the life of the minor and that it is appropriate to carry out termination of the pregnancy in order to avert that risk.

10. The two relevant medical practitioners are Dr C, a consultant obstetrician and gynaecologist, and Dr M, a consultant child and adolescent psychiatrist. Dr M gave oral evidence to the Court today. Dr M has prepared a number of different reports and documents for the purpose of this application and, as I say, has given evidence to the Court this afternoon.

11. In his first report dated 20 October, he set out in some detail the circumstances in which the minor came to the attention of the HSE. She presented to HSE obstetrics on 6 October 2025 following a positive home pregnancy test. On 9 October there was a follow up appointment where the pregnancy was confirmed, at that stage, as of over 12-week gestation. As Dr M reports, the minor threatened to harm herself if she could not terminate the pregnancy. She said that if she were not to have the option, in terms of having a termination of pregnancy, she would:

“…‘cut the baby out with a knife’ or procure unknown pills online in an effort to abort the pregnancy herself.”

12. Dr M explains that there was a multidisciplinary team meeting on 10 October where the risk of harm to the minor was discussed and a plan of care moving forward was discussed, in particular the risk of harm to the minor in the context of the pregnancy and indeed alongside the pregnancy. The provisions of section 9 of the 2018 Act, the exceptional circumstances under the Act and various other matters were discussed. Dr M and Dr G, another consultant psychiatrist, then carried out a joint psychiatric assessment over two days, on 15 and 17 October, of this year. Dr M reported at the time of both assessments, the minor said she would self-harm if she had to maintain the pregnancy including, as I mentioned, indicating that she intended to stab herself with a knife in the stomach, “to cut the baby out myself” should she have to carry the foetus to full term. She also reported to the doctors that she would:

“...do whatever I have to and get rid of it...I’ll buy abortion pills online and take 20 per day, whatever I need to do.”

When asked if she had an intent to commit suicide, she reported:

“I don’t care...I will not have this baby.”

The minor reported that she had never had suicidal ideation or intent or thoughts of selfharm in the past:

“...she says that if she were not pregnant, she would feel ‘happier than ever’ and has plans to pursue a professional basketball or modelling career and possibly to complete a degree.”

It is noted that she had achieved very high results in the recent Junior Certificate examinations.

13. At the assessments on 15 and 17 October, the minor denied any risk of imminent plans of self-harm or suicide and said that she would collaborate with psychiatry and obstetrics:

“However, she maintains in both appointments that she will indeed follow through with self-harm without regard to her own life, as noted above, should she have no choice but to maintain her pregnancy.”

14. Dr M has prepared a very detailed report and I am not going to go into that report in full, but it is fair to say in the section of his report dealing with the medical status exam he made a number of findings in the report which are shared by his colleague, Dr G. These are joint views as I understand it. In his report Dr M indicated, with respect to the minor’s insight, that it was “somewhat poor”, and her judgment was also “somewhat poor”.

15. In the context of his oral evidence this afternoon, Dr M was unequivocal in his view that the minor does not have capacity, not just in terms of her age, but does not have mental capacity as the term is understood, on a functional capacity basis, to decide to proceed or not to proceed with a termination of pregnancy, although it is very clear that it is her fixed and consistent view that she wishes to have such a termination.

16. Dr M has carefully explained how he had come to that conclusion in the course of his oral evidence this afternoon and I accept that evidence. The evidence, which is uncontested, will appear in a transcript of the hearing this afternoon but has been sufficiently summarised above. There is no contrary evidence, so I must accept as a matter of fact that the minor, not just by virtue of her age but by virtue also of her mental capacity (assessed on a functional capacity basis), does not have the capacity to make a decision in respect of the termination of her pregnancy and that in turn has led to the bringing of this application by the HSE.

17. Both Dr M and Dr C have also provided further short reports and letters confirming their views on the position. Dr M, in a short report dated 20 October 2025, expressed the opinion that there is a risk of serious harm to the life of the minor for the purpose of section 9 of the 2018 Act. He also stated that that view is concurred with in the assessment of Dr C who also agrees that there is a risk of serious harm to the minor’s life. Dr M expressed the view also that the foetus is not currently viable and that a medical termination of pregnancy may be carried out in order to avert the risk just mentioned. He says that the foetus will not be viable at the time of termination and the patient will need to have close follow up with obstetrics and CAMHS.

18. Dr C, in a document also signed by her on that day, 20 October, stated that, in her view, there is a risk of serious harm to the life of the minor and that a medical termination of pregnancy should be carried out to avert that risk. An undertaking has been provided for Dr C to also confirm in a communication on or before 3 November that she is also of the opinion that the foetus is not viable, which is something that is required for the purpose of section 9 of the 2018 Act. I am assured that that is in fact Dr C’s view.

19. I have been provided with further evidence from a number of different parties and before coming to those I will just refer to the latest piece of evidence from the HSE which is Ms Kelleher’s second affidavit which was sworn yesterday. In that affidavit Ms Kelleher points out that she sought certain further information from Dr C, the obstetrician and gynaecologist who will be the consultant undertaking the termination procedure on 3 November 2025.

20. Dr C has said that the management plan for the termination is for medical management which would involve the administration of certain medication. The plan will be for the minor to remain as an inpatient in the obstetrics and gynaecology department of the hospital for the duration of the treatment. It is hoped that medical management will address the situation, but there are occasions where a patient may need to attend the operating theatre in the event of retained conception or haemorrhage. Those theatre cases are emergency cases. Also, it is said that the plan will be for specialist supervision for the duration of the admission.

21. Ms Kelleher also indicates that she has obtained an update from Dr D, consultant psychiatrist from the relevant CAMHS service, and he has provisionally arranged for the minor to be assessed in early November by himself or by another psychiatrist with another team member, in addition to a follow up appointment later in November.

22. The other evidence before the Court includes evidence from the Guardian ad Litem, Ms K, who has sworn an affidavit in the context of the application and exhibited her report. Again, I am not going to go through that report in detail, but it is important that I just record the view expressed by Ms K in her affidavit which is that, in her view, the application made by the HSE should be granted by the Court on the basis that it represents the clear and unambiguous desire of the minor and that to grant the application is, in the opinion of Ms K, as Guardian ad Litem, in the minor's best welfare interests at this time.

23. As I say, the Guardian ad Litem has prepared a very helpful report which goes into quite a lot of detail in relation to the surrounding circumstances, the very difficult time that the minor has had, the risks to which she has been subject and also in terms of the interaction between Ms K, the Guardian ad Litem, and the minor’s mother and father. The Guardian ad Litem supports the application.

24. The Child and Family Agency, which is a Notice Party, has also provided evidence on the application in the form of an affidavit of Ms M who is a social worker with the Agency.

Ms M has provided a report and the Agency has also been represented by counsel, Mr

Lewis Mooney BL, in the application before the Court today. It is indicated that the Agency also supports the application on the basis that it is in the minor’s best interests.

25. It is also stressed, and this is the position which Mr Mooney BL made clear to the Court, the need to ensure that there are sufficient follow up services from all the relevant agencies concerned because clearly this is a very difficult situation. It is a very traumatic situation for the minor and for her family and they will need all the supports that they can get leading up to and after the procedure goes ahead on 3 November 2025.

26. There are two other very important parties involved in this application and they are the minor’s parents.

27. I will start with her father, who is represented today by solicitors and by Mr Shannon Haynes BL. The position of the minor’s father is very clearly set out in a letter sent today,

29 October, in which the position is communicated to the Court and to the other parties.

28. It said in that letter, and confirmed by Mr Haynes BL in his submissions to the Court, that the minor’s father is taking a neutral position in the proceedings and in relation to the orders which are being sought. He is neither consenting nor objecting to the orders being made.

The letter, importantly, says:

“[The minor’s father]is a xxxxxxxx national who has been adapting to life in Ireland only since 2023. In his culture abortion is not allowed and it is in those circumstances that he is unable to formally consent to such a procedure being performed.

However, he is anxious to stress that he is there to support his daughter through this difficult time for the family and he will continue to do so in any way that he can in the weeks and months ahead as she recovers from the procedure.”

29. I am aware from some of the other reports that, in the father’s family circles in his country of origin, there has been a tragedy associated with a termination procedure and that has also, I understand, contributed to his general concern about the whole situation. His position is a very understandable one, he is neither consenting nor objecting to the application.

30. The position of the minor’s mother is also a very understandable one and it was set out in a replying affidavit, which she swore yesterday, and in very helpful written submissions that her counsel, Ms Patricia Brazil SC and Ms Aisling Mulligan BL, provided to the Court this morning. As it happens, by reason of the evidence given by Dr M, some of the submissions have ceased to be relevant and that is accepted by all the parties. The position of the minor’s mother, and I am not going to read out in full what her affidavit says, does provide some very helpful background to the situation which I have been able to read before sitting.

31. The gist of what the minor’s mother was saying, in her affidavit and in the written submissions, is that the minor should be regarded as being competent and as having capacity to make a decision herself to terminate the pregnancy. She says: “[i]t is a deeply personal thing for a woman to decide...” and that it is a matter for the minor, and not for her mother to make the decision for her. She says it is her role to support her daughter after she has made her decision and she will endeavour to do that to the best of her ability. She says, "in light of that, and as it is [the minor]’s clear wish to terminate", she does not oppose the termination but she cannot, due to her own cultural and religious beliefs provide consent to the medical procedure that will end the life of another (as she sees it). She says she further does not believe that she should make the choice for her daughter as it is her daughter who will have to live with the consequences.

32. She says, simply put, she is being asked to accede to her daughter's wish and she is asking that her daughter be allowed to make the choice herself as it is the mother’s belief that the minor is competent to make the decision. She asked the Court to reach that conclusion.

33. In the written submissions that Ms Brazil SC and Ms Mulligan BL provided, they elaborated somewhat on that position and I think, very appropriately, acknowledged the fact that the evidence might not support the position adopted by the minor’s mother on the question of capacity. What they say is it had not been established up to that point (at least)

that the minor lacked capacity to make the decision to terminate the pregnancy, and in the event that she were found to have functional capacity, then their submission would be that the order should be refused as the threshold for invoking the jurisdiction of the Court in wardship would not have been met.

34. However, they went on to say that if the evidence establishes that the minor does not have the capacity to make the decision, then her mother would not oppose the termination, but she just would not be in a position to provide consent to the procedure by reason of her own cultural and religious beliefs. I understand that to be the mother’s position.

35. In circumstances where the evidence has established that the minor does not have capacity to take the decision herself, not just in terms of age but in terms of her mental capacity, and where neither her mother nor father is in a position to provide consent to the procedure, the HSE has asked the Court to provide that consent in the exercise of its minor wardship jurisdiction.

36. Various issues were raised in the submissions, all of which are quite interesting, including whether Irish law recognises the concept of “Gillick competence”. That is something that was touched on in a judgment of Birmingham J (as he then was) in XY [2013] IEHC 12, some time ago. It is an issue that may require to be decided in another case, but fortunately it does not have to be decided in this case because of Dr M’s unequivocal evidence that the minor, the subject of these proceedings, lacks the capacity to take the decision in relation to termination. That is the position in summary of all of the parties.

37. The HSE has submitted that the requirements of section 9 of the 2018 Act have been complied with. My attention was drawn to, first of all, section 2 of the 2018 Act which defines a woman as meaning “a female person of any age”. Then of course to section 9 which is headed “Risk to life or health”. Section 9(1) provides that:

“A termination of pregnancy may be carried out in accordance with this section where 2 medical practitioners, having examined the pregnant woman, are of the reasonable opinion formed in good faith that —

(a) there is a risk to the life, or of serious harm to the health, of the pregnant woman,

(b) the foetus has not reached viability, and

(c) it is appropriate to carry out the termination of pregnancy in order to avert the risk referred to in paragraph (a).”

38. Section 9(2) states:

“Of the 2 medical practitioners referred to in subsection (1)—

(a) one shall be an obstetrician, and

(b) the other shall be an appropriate medical practitioner.”

That term is itself defined in section 8 of the Act as meaning, in relation to a medical practitioner:

“...means a medical practitioner appropriate to the care or treatment of the woman in respect of the risk at issue.”

39. Then section 9(3) states:

“A termination of pregnancy shall not be carried out under this section unless each of the medical practitioners referred to in subsection (1) has certified his or her opinion as to the matters referred to in that subsection.”

40. Finally, section 9(4) states:

“The termination of pregnancy to which the certification referred to in subsection (3)

relates shall be carried out —

(a) by the obstetrician referred to in subsection (2)(a), or” (b) is not relevant.

41. I have referred earlier to the evidence provided by the HSE in respect of section 9. There is the evidence of Dr M and the evidence of Dr C. Subject to the one point that is going to be dealt with by a further short opinion of Dr C which will be recorded in the relevant certificate that must be completed for the purpose of the procedure, I am persuaded that the requirements of section 9(1) are satisfied in this case.

42. First, Dr M has said in his short report of 20 October that he is of the opinion that there is a risk of serious harm to the life of the minor. Dr C has also concluded that there is a risk of serious harm to the life of the minor.

43. Second, Dr M has expressed the opinion that the foetus is not currently viable. That is not expressly said by Dr C, but it will be said on foot of the undertaking that has been given to me this afternoon.

44. Finally, both have expressed the opinion that it is appropriate that a termination of pregnancy be carried out in order to avert that risk.

45. The requirements of section 9(1) have, therefore, clearly been satisfied. Section 9(2) as I have mentioned is also satisfied: one of the relevant medical practitioners is an obstetrician and that is Dr C, and the other is an “appropriate medical practitioner” and that is Dr M.

Next the requirement of section 9(3) have and will be complied with by means of the certification of the various matters in section 9(1). Section 9(4) has also been complied with: the termination will in fact be carried out by Dr C in compliance with that provision.

46. The requirements of section 9 are, in my view, therefore, complied with in this case. That is not the end of the matter, however, because since the termination will be carried out in respect of the minor’s pregnancy, the question of consent to the treatment must be addressed in circumstances where the minor is a young girl who is almost 16, but not 16 yet. On the evidence, as I mentioned, of Dr M she does lack capacity to take the decision.

47. The decision of the Supreme Court in JJ [2021] IESC 1 is critical here. That decision does allow the Court to exercise its minor wardship jurisdiction to provide consent in certain circumstances where the parents of a minor are not in a position to provide that consent.

The facts of JJ were obviously very different, but in this case, as I have mentioned, neither the minor’s mother, nor her father is in a position to provide the consent on her behalf, so it falls to the Court to do so.

48. In its consideration as to whether to do so the Court must, first of all, be satisfied that the procedure at issue is in the minor’s best interests. I am quite satisfied on the evidence, having regard to the very serious risks that the doctors have identified, and having regard to the helpful opinions and views of the Guardian ad Litem, Ms K, and Ms M of the Child and Family Agency, that this is in the minor’s best interests.

49. However, I must go further than that and I must also consider how the making of an order that the Court’s consent be given in this case fits with Article 42A of the Constitution.

Article 42A of the Constitution which was considered by the Supreme Court in great detail in the JJ case, says:

“The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights.”

50. The most important provision of Article 42A for present purposes is Article 42A.2.1 and that says:

“In exceptional cases, where the parents, regardless of their marital status, fail in their duty towards their children to such extent that the safety or welfare of any of their children is likely to be prejudicially affected, the State as guardian of the common good shall, by proportionate means as provided by law, endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.”

51. Now as JJ makes clear, what is necessary to be established here or what is sufficient (at least) to be established is a single instance in which there could be said to be a failure by the parents. The Court is not being asked to carry out an overall assessment of the role of the minor’s parents in her upbringing or anything like that, it is simply being asked to intervene in the single instance, where for the reasons that they have outlined, the parents are not in a position to provide their consent to the procedure. In my view that is sufficient, bearing in mind what is said in the JJ case, to establish the sort of failure that must be established under Article 42A.2.1 of the Constitution. On the evidence before the Court, I am satisfied that the failure is one which would be likely to lead to prejudicial effects for the minor, in that if the procedure does not take place then there is very grave risk to her life, having regard to the evidence of the doctors.

52. In those circumstances, the State can intervene by proportionate means and in this case it does so by asking the Court to make orders of the type sought here. The Court is then in a position to intervene in a proportionate manner by exercising its minor wardship jurisdiction and providing the consent that the minor’s parents are not in a position to provide.

53. I am satisfied that this is a case in which I am justified in exercising my minor wardship jurisdiction and, having regard to what is said in Article 42A of the Constitution, providing consent on behalf of the minor to this procedure in circumstances where her parents are not in a position to do so. I make clear I am not making any findings in any other respect in relation to the minor’s parents.

54. I also must act on a proportionate basis and I think that will allow me not to proceed to hear the minor wardship summons today and to make the orders which the HSE seeks and to adjourn the matter to a date where the minor wardship summons can be listed for mention.

It may at that point, or at some point in the future, be possible for those proceedings simply to be struck out because the entire purpose of the proceedings is to allow the consent to the termination to be provided by the Court and not for any other wider purpose. I think that is relevant for the purpose of the proportionality of the measures.

55. It is clear from JJ that the Court can make orders where minor wardship proceedings have been commenced without proceeding to take the minor into wardship. I am not going to make any order taking the minor into wardship today as I do not believe that it is necessary to do so, but I am going to make the other orders for the reasons I have sought to explain in this judgment. Those orders being the orders set out in the Notice of Motion issued by the HSE.

56. I now go to that Notice of Motion. I have already made the order at paragraph (1), namely, an order pursuant to section 45 of the Courts (Supplemental Provisions) Act, 1961, that the proceedings be heard otherwise than in public as this is a minor wardship matter.

57. I make also make the following order that Dr C, consultant obstetrician or her deputy for the time being at the hospital, be permitted to perform a termination of pregnancy procedure on the minor.

58. I will make the order sought at paragraph 3 permitting the medical and nursing staff at the hospital to carry out such medical assessment, examination and/or treatment necessary or incidental to the procedure in respect of the minor as they consider in the exercise of their clinical judgement to be appropriate and in the best health and welfare interests of the minor, including but not limited to the four matters that are then set out at (a) to (d) in the motion, including the termination of her pregnancy.

59. I will order that in the event of complications or difficulties arising from the procedure, the clinical director or general manager of the hospital be authorised to take all reasonable and necessary steps that are clinically or medically indicated to treat any such complications as they arise.

60. I will list the matter for review and I will adjourn the minor wardship summons to a date, to be discussed, in mid-November.

61. I will reserve the costs today and hopefully there can be some discussion about the question of costs in this very important and significant application. I will give liberty to apply.

62. I just want to conclude by thanking Dr M for his very clear evidence earlier and for his patience in waiting to hear the conclusion of the hearing and the conclusion of the judgment.

I want to thank all of the parties, all of the counsel, the solicitors, and all of the people with them, and the various agencies for cooperating with a view to getting this case on and assisting the Court in resolving this very difficult case today.

63. Obviously, I want to thank the interpreter for her attendance and, hopefully, if there are any queries from the parents, she may be able to address them afterwards.