Intellectually disabled couple bring separate challenges over marriage ban

An intellectually disabled woman is proceeding with a constitutional challenge arising from a High Court order preventing her intellectually disabled fiancé marrying her due to concerns about his capacity.

The woman’s challenge, and a separate challenge by the man, concern the right to marry and the constitutionality both of the High Court’s wardship jurisdiction and of an 1812 law which prevents wards of court marrying.

The order prohibiting the man proceeding with a civil legal marriage was made by the High Court in summer 2019 on the application of a charity providing services for the man on foot of medical views he lacked capacity to enter into a marriage contract. No order was made in relation to his intended bride, described as more high functioning.

When the case came before the president of the High Court, Ms Justice Mary Irvine, on Thursday, she said both constitutional cases should be heard as speedily as possible because wardship proceedings are on hold pending those.

The man’s sister told the judge a constitutional challenge should not be brought in her brother’s name as she did not believe he “is making any decisions at the moment” and all decisions were being made by “third parties”.

“This is not about my brother and he needs to be protected.”

She did not believe the Free Legal Advice Centres, representing the man in his proceedings, “is representing my brother at all” and said he had been brought to FLAC “by others”.

His care is being interfered with, he has been “under duress for the last two years” and his phone is being interfered with, she added. “According to himself, he has to get permission from others to come and visit me”.

Her brother has “never wavered” from his position he wants to remain where he is, she added. She said a psychiatrist’s report, “one of five”, had said her brother - whom the court previously heard has substantial assets - is “very unspecific about money” and also told her he is already married.

Ms Justice Irvine told the sister it was very difficult, at this point, to engage with any of the important issues she had raised and the most important thing is to get to a point where the court can consider his capacity.

There was “a road block” because the two constitutional cases need to be decided first and those should be expedited.

She adjourned the wardship matter for mention in November when the court will be updated concerning the two cases.

Earlier on Thursday, Felix McEnroy SC, for the charity involved in the man’s care, said it is involved only in the wardship proceedings.

When Ms Justice Irvine noted the man had expressed “very strong views” about how he would like to be living his life at the moment, counsel said all the medical evidence was the statutory test for wardship - that the man lacks capacity to manage his person and finances - is satisfied.

The essential difference between the core medical evidence and the constitutional case is that it is argued in the latter the man has capacity to enter into a marriage, counsel said.

There is no medical information the man has capacity to instruct solicitors and, in that context, a guardian ad litem was previously appointed to represent his interests in the wardship matter, he added.

Frank Callanan SC, representing the man in his constitutional challenge, said a confidential agreement had been reached with the State arising from his side’s application for a protective costs order for the challenge which would be expedited.

If taken into wardship, the man loses capacity to marry, counsel said. The man wishes to live a life “as freely as possible” and the issues in his case concern different levels of capacity. The “unitary” capacity test for wardship was a “quasi commercial” test which should be distinguished from capacity to marry.

It is hoped the case can be heard late this year or early next year, he added.

Ciaran Craven SC, for the man’s fiancee, said her application to set aside the injunction preventing the marriage has travelled alongside the wardship matter. His side had written this week to the Attorney General indicating she is minded to issue her own proceedings with constitutional elements concerning the right to marry. A statement of claim is “well advanced”, he added.