Mrs. Justice Catherine McGuinness:

I take the points made by Senator Colm Burke. One leaves it open for the Supreme Court to get it wrong again if one argues that the Supreme Court was wrong in the first place. This seems like quite a logical argument but it is unforeseeable and that is one of the reasons legislation is necessary. Otherwise one is leaving it as it is. The Supreme Court has repeatedly said it does not want this to be left in its hands to be decided on a case-by-case basis. This also refers to what Senator Walsh said, that a point not argued is a point not decided. This is one of the difficulties about saying the Supreme Court decided abortion could take place right up to the end of the pregnancy. Those were not the facts before the Supreme Court, and courts really do decide on the facts and the cases before them. While it may be inferred that the Supreme Court meant that if it had been asked that at the time it may not have agreed to that at all. This whole argument that the Supreme Court had decided that one could have a termination right up to the ninth month is unrealistic in a sense. It is also clear from the medical evidence before the committee that cases would be dealt with in a way that would preserve the life of the child in so far as that was possible at all.

I appreciate what Deputy Maloney said. It seems to me too that the gateway and referral path put up in head 4 is so complicated and lengthy that the likelihood is that anyone who has the means and the understanding to be able to go abroad, will go abroad. On the other hand, as was mentioned, we are probably dealing with the case of the under-18s and we need something more about that in the legislation. We also need to deal with the area of people who have not got proper capacity to consent to medical procedures of any kind and that should be dealt with by the enactment of the assisted decision-making (capacity) Bill, which is being prepared by the Department of Justice and Equality and was produced by the Law Reform Commission, if I may refer to it.

I very much hope that Bill will be passed relatively quickly because that would be a great help in dealing with those with lacking capacity, which is an important issue.

In fact, what has happened is that it is the cases of minors who are in care that are the cases that have come up before the High Court, in the cases where we do not have written judgments necessarily but we have had the situation where a child in the care of a health board or the HSE has been permitted to go to England for a termination. Anybody who practises in family law or in public law child care cases knows that this has happened on a number of occasions but, because it has been held that it is following the X case, the court has not felt it necessary to issue a written judgment. I believe we should deal with that. I would agree with much of what Senator Bacik stated and her emphasis on the younger persons in care, as I have just said.

We were asked should the child have advocacy. That raises an enormous number of questions of procedure, etc., and I really do not feel competent to deal with that in detail. It could be argued, I suppose, but I think it would have to be left to be decided as a constitutional question. I think I have dealt with most of what was asked.