A mother facing trial in Belfast for allegedly procuring her 15-year-old daughter’s abortion has won High Court permission to challenge the decision to pursue a prosecution.
Lawyers for the pair were granted leave to seek a judicial review amid claims that subjecting the woman to criminal proceedings is inhuman.
Judges were also told the Public Prosecution Service’s decision breaches privacy rights in a case involving an unwanted pregnancy from an allegedly abusive relationship.
Reporting restrictions have been imposed to protect the identities of both mother and daughter.
Abortions are currently only legal in Northern Ireland if the pregnant female’s life or long-term health is at serious risk.
In 2015 the High Court held that the failure to provide exceptions to the near-blanket ban for cases of fatal foetal abnormalities (FFAs) and victims of rape or incest breaches human rights legislation.
With the outcome of an appeal against that ruling still awaited, a legal challenge was mounted against the PPS for deciding the mother should be prosecuted over procuring the abortion back in 2013.
Counsel representing the pair, Karen Quinlivan QC, argued that the woman was faced with a situation where she believed her 15-year-old daughter could not cope with the pregnancy.
It was contended that conception followed under-age sex and amounted to a form of “statutory rape”.
“This was a relationship which she felt was an abusive one and continued to be abusive after details of the pregnancy emerged,” Ms Quinlivan told the court.
According to the barrister compelling the girl to continue with her pregnancy would have breached rights to protection from inhuman and degrading treatment under European law.
Prosecuting her mother for enabling her to access medication to obtain an abortion also violated those entitlements and rights to privacy and family life, it was contended.
With only the mother facing trial over the alleged procurement, Ms Quinlivan argued that her daughter’s “voice” will not be heard in those proceedings.
She also raised issues about the disclosure of information from a GP and child and adolescent mental health services as part of the police investigation and subsequent decision to prosecute.
“These are people who were open, frank and transparent, and are effectively now being punished,” she said.
Philip Henry, for the PPS, countered that the legal challenge should be dismissed due to delay – the decision to prosecute was taken more than a year ago.
Contesting the strength of the grounds of challenge, he added: “There’s simply no prospect of establishing inhuman treatment.”
However, Lord Justice Weatherup, sitting with Mrs Justice Keegan, ruled that an arguable case had been established.
Granting leave to apply for judicial review, he listed a full hearing in May.
The judges also gave intervener status to four organisations: the British Pregnancy Advisory Service, the Family Planning Association, the Royal College of Midwives, and the British Humanist Association.
Counsel for those bodies can now make representations to assist in the case.
Outside court their solicitor, Ciaran Moynagh, said: “This is a proper case for leave to be granted as there are significant issues dealing with the rights of the child, privacy and medical grounds, along with the moral issue of abortion in Northern Ireland.”