About this case:

• Citation:
  [2025] IEHC 604
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice David Barniville

Delivering an ex tempore judgment for the High Court in October, Mr Justice David Barniville concluded: “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.”

Background

The minor, a 15-year-old girl living in international protection accommodation, wished to terminate her pregnancy.

On 6 October 2025, the minor presented to HSE obstetrics following a positive home pregnancy test. At follow up on 9 October, the pregnancy was confirmed as being of over 12 weeks’ gestation.

The minor threatened to harm herself if she could not terminate the pregnancy, explaining that she would surgically remove the baby or would procure abortion medication online should she have no choice but to maintain her pregnancy.

A multidisciplinary meeting on 10 October discussed the risk of harm and plan of care moving forward. The provisions of s.9 of the Health (Regulation of Termination of Pregnancy) Act 2018 were discussed and a joint psychiatric assessment was carried out by Dr M and Dr G over two days.

The doctors concluded that there was a risk of serious harm to the minor’s life for the purpose of s.9 of the 2018 Act and that the minor did not have capacity, not just in terms of her age, but also in terms of mental capacity, assessed on a functional capacity basis, to decide whether to proceed or not to proceed with a termination of her pregnancy.

The minor’s doctors further concluded that the foetus would not be viable and that a medical termination under specialist supervision would be appropriate.

The HSE brought wardship proceedings in respect of the minor, and subsequently applied to the High Court for its consent to the termination of the minor’s pregnancy where she did not have capacity to provide her own consent and where her parents, by virtue of their cultural and personal beliefs, were not in a position to provide consent on her behalf.

The High Court

Mr Justice Barniville considered the evidence presented to the court and the requirements of the 2018 Act. 

Noting inter alia that Dr M and Dr C were of the opinion that there was a risk of serious harm to the life of the minor, that the foetus was not then viable and that it was appropriate that a termination of pregnancy be carried out to avert the risk of harm to the minor, the High Court was satisfied that the requirements of s.9(1) were satisfied.

The court further considered that s.9(2) was satisfied, in that one of the relevant medical practitioners was an obstetrician and the other “an appropriate medical practitioner”, that the requirements of s.9(3) would be complied with by means of the certification of the various matters in s.9(1) and that s.9(4) was complied with where a termination would be carried out by Dr C in compliance with that provision.

Being satisfied that the requirements of s.9 of the 2018 were complied with, Mr Justice Barniville noted that that was not the end of the matter as the question of consent needed to be addressed in circumstances where the minor was a young girl of nearly 16 years of age.

Highlighting the decision of the Supreme Court in JJ [2021] IESC 1 as being critical, Mr Justice Barniville observed that the decision allowed the court to exercise its minor wardship jurisdiction to provide consent in certain circumstances where the parents of the minor were not in a position to provide that consent.

Explaining that the first consideration was whether the procedure was in the minor’s best interests, the court was satisfied having regard to the serious risks and the views of the guardian ad litem and representatives of the Child and Family Agency, that the procedure would be in the minor’s best interests.

The court proceeded to analyse whether the making of the order sought would fit with Article 42A of the Constitution, which recognises the rights of children.

Noting that the most important provision for that purpose was Article 42A.2.1, which allows the State to supply the place of the parents where the parents have failed in their duty towards their children to an extent that the child’s welfare is likely to be prejudicially affected, the High Court emphasised that what was required to be established was a single instance in which it could be said that there was a failure by the parents.

The court explained that it was not being asked to carry out an overall assessment of the role of the minor’s parents in her upbringing, rather it was simply being asked to intervene in the single instance where the parents were not in a position to provide their consent to the procedure.

Being satisfied that such a failure had occurred, the High Court concluded that it was justified in exercising its minor wardship jurisdiction to provide consent on behalf of the minor to the procedure.

Conclusion

Accordingly, the High Court made orders inter alia permitting the carrying out of the termination of the pregnancy, and in the event of complications or difficulties arising from the procedure, authorising the clinical director or general manager of the hospital to take all reasonable and necessary steps that are clinically or medically indicated to treat any such complications as they arise.

In the matter of DE (A Minor) [2025] IEHC 604