Court upholds challenge by intellectually disabled man who wants to marry

Court of Appeal hears man would lose right to marry if he is made ward of court

The Court of Appeal has upheld a challenge against the refusal of the High Court to halt an inquiry into whether an intellectually disabled man who wanted to marry should be made a ward of court.

The man, who is in his 40s, had opposed being the subject of a wardship process as it prevented his planned civil legal marriage in June 2019 to a woman who has an intellectual disability, but is high functioning, with whom he has a long-term relationship.

The wardship process was supported by the man’s siblings and the institution which has responsibility for his care.

Lawyers for the man argued his prima facie right to marry would be extinguished if he was made a ward of court without out any assessment of his capacity to marry.

The ruling of the three-judge Court of Appeal overturns the refusal of the President of the High Court, Mr Justice Peter Kelly, on February 4th, 2020 to halt the wardship inquiry in respect of the man.

In his judgement, Mr Justice Maurice Collins described the case as "acutely difficult" and noted the question of the man's capacity to marry was "a matter of intense dispute".

He noted the commitment of the man’s siblings to their brother’s welfare was palpable and they were clearly concerned he was being exploited and incapable of making his own decisions.

Mr Justice Collins said it was clear that the family’s relationships had been put under severe strain as the man’s siblings believed their brother was not in a position to make a free and informed decision to marry.

“On any view, these are powerful considerations in favour of allowing the wardship proceedings to proceed,” he observed.

Last December the man had initiated proceedings challenging the constitutionality of the wardship regime for the purpose of trying to establish that he was entitled to marry or at least have his capacity to marry assessed.

Mr Justice Collins acknowledged the question of whether people with intellectual disabilities should be able to marry raised complex issues.

However, he said societal attitudes to that question had changed significantly since the enactment of the Marriage of Lunatics Act in 1811 as demonstrated by enactment of the Assisted Decision-Making Capacity Act 2015 which repeals the earlier legislation.

The judge said the 2015 Act contrasted with the existing wardship regime where a ward was treated as lacking decision-making capacity generally.

He said it was regrettable that provisions of the 2015 Act which makes capacity a statutory requirement for a valid marriage had not yet been commenced which meant the 1811 Act remains in force.

“This is hardly a satisfactory state of affairs given the vital importance of the issues that the 2015 Act addresses,” Mr Justice Collins remarked.

The judge said it was “a matter of real concern” that the institution secured an ex parte order from Mr Justice Kelly restraining the man from participating in a marriage ceremony on the eve of his wedding last year which had “a clear and profound impact” on the couple.

Mr Justice Collins said the lateness of the application had put the President of the High Court in a very difficult position that effectively presented him with “an unattractive binary choice”.

He said it was also a matter of concern that information provided by the institution about the man’s estate which was used to add significantly to the urgency of the application was “at best incomplete and arguably materially inaccurate”.

Subsequent interim orders by the High Court, which restrain the man from leaving the State and regulating where he lives, remain in place.

Mr Justice Collins said the evidence before the court established a very significant risk that the man’s admission to wardship would prevent his marriage and effectively close off any assessment of his capacity to marry as well as bring any legal proceedings he had brought asserting his right to marry to a premature conclusion.

The judge said that would involve a “manifest and serious potential injustice” to the man and his partner.

He acknowledged that whatever ruling the Court of Appeal would make was certain to cause anguish.

Mr Justice Collins said the court’s ruling should not be taken as calling into question the powers of the President of the High Court to manage the wardship list.

He noted the decision under appeal was in substance the refusal of a stay.

However, Mr Justice Collins said it appeared that the order made by Mr Justice Kelly gave rise to a serious risk of injustice to the man. In such circumstances he said the Court of Appeal was clearly entitled and obliged to intervene.