An intellectually disabled man who wished to marry his girlfriend has won an appeal to halt an inquiry into whether he should be made a Ward of Court.

Last year, the man’s carers, supported by his siblings, applied successfully to the High Court for an injunction, preventing the marriage from going ahead.

The court then weighed up whether the man should be made a ward of court, which was opposed by the intellectually disabled man because it would prevent his marriage.

His girlfriend also has an intellectual disability, but is high functioning.

The subject’s legal representatives argued that his prima facie right to marry would be extinguished if he was made a ward of court without any assessment of his capacity to marry.

Fair procedure

Last month, the Court of Appeal had to consider whether the man was entitled to marry, or at least entitled to have his capacity to marry assessed and determined by a fair and appropriate procedure, Fieldfisher lawyers Eimear Burke and Hannah Unger have written in a briefing note.

Whether the man, in fact, had the capacity to marry was not a matter for the Court of Appeal to determine. The Court of Appeal upheld the man's challenge.

The existing legislation (Marriage of Lunatics Act 1811) provides that any marriage of a ward of court is void.

The Court of Appeal found that the man was entitled to have his capacity to marry appropriately assessed, but that, because of the effect of the 1811 act, if he were admitted to wardship, he would never have a hearing about his capacity to marry.

Therefore, the issue would be determined by default with no examination in court of the applicable test for capacity.

Capacity to marry

Collins J of the three-judge Court of Appeal said that the case was “acutely difficult” and “a matter of intense dispute”.

In upholding the man’s challenge, the court weighed the following factors:

• Whelan J referred to Ryan v Attorney General [1965] IR 294 where the court found that the right to marry was a personal right under article 40.3 of the Constitution,
• Concurring, Collins J stated that the right to marry is a fundamental constitutional right as per Zappone v Revenue Commissioners [2008] 2 IR 417.
• He further commented: “The subsequent adoption by the people of the 34^th Amendment to the Constitution, extending the right to marry to same-sex couples, demonstrates in a very concrete way the important value attached to that right in this jurisdiction”,
• In his judgement, Collins J said that societal attitudes to the question of whether people with intellectual disabilities should be able to marry had changed significantly since the introduction of the Assisted Decision-Making (Capacity) Act 2015,which, once commenced, will repeal the Marriage of Lunatics Act in 1811.

The situation will be different once the act commences, which will mean that some cognitively impaired people will be able to marry.

'Hardly satisfactory'

Collins J said: “This is hardly a satisfactory state of affairs, given the vital importance of the issues that the 2015 act addresses”.

• Collins J also referred to English jurisprudence, which suggests that the test for capacity to marry is “issue specific”, as per Sheffield City Council v E [2004] EWHC 2808 (Fam),
• In that case, Munby J held that capacity to understand the nature of the marriage contract “is not the same as capacity to look after oneself or one’s property. Often, of course, someone who lacks the capacity to do the one will also lack the capacity to do the other. But not necessarily”,
• Collins J stated that the evidence before the Court of Appeal 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. Collins J said that that would involve a “manifest and serious potential injustice”,
• Collins J acknowledged that whatever ruling the Court of Appeal would make was certain to cause anguish, and that he did not disregard the countervailing factors, and gave significant weight to the welfare concerns expressed by siblings. He attached significant weight to interim orders made by the High Court (which restrain the man from leaving the State and regulating where he lives) that will continue in force and, if necessary, further orders may be sought,
• Collins J emphasised that 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. However, he said that it appeared that the decision of the High Court gave rise to a serious risk of injustice to the man. In such circumstances, Collins J said that the Court of Appeal was clearly “entitled and obliged to intervene”.

The Fieldfisher lawyers write that the judgment represents a sea change, as envisaged by the act, in terms of how society supports persons with capacity issues.

Such decisions, in line with the uncommenced provisions of the act, will bring Ireland closer to the ‘human rights’ model and away from the paternalistic or ‘best-interests’ approach.

Challenging and disruptive

The new law has been described as “challenging and disruptive”.

A Decision Support Service will help individuals with capacity issues to make their own decisions about personal welfare, property and affairs, and finances.

The act abolishes the current ward-of-court system and replaces it with a framework to maximise autonomy for those who need support to make decisions about their personal welfare, property and financial affairs.

An estimated 220,000 adults in Ireland will be affected by the new law.