An intellectually disabled man who wanted to marry his long term partner has won his appeal to halt an inquiry into whether he should be made a Ward of Court. The process as regards inquiring into whether someone should be made a Ward of Court is discussed in further detail below.
In June 2019, the man's care facility successfully applied for an injunction from the High Court to prevent the man from marrying his long-term partner. The High Court then considered whether the man should be made a Ward of Court. The man opposed the application for Wardship, as it would prevent him from marrying his long-term partner who also had an intellectual disability, but was high functioning.
The application for Wardship was supported by the man's siblings and the institution which cared for him. The man's legal team argued 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.
Decision of Court of Appeal
In early August 2020, the Court of Appeal had to consider whether the man was entitled to marry or at least be entitled to have his capacity to marry assessed and determined by a fair and appropriate procedure. The consideration in relation to whether the man in fact had capacity to marry was not a matter for the Court of Appeal to determine.
Having considered the above questions, the Court of Appeal upheld the man's challenge. The Marriage of Lunatics Act 1811 provides that the marriage of a Ward of Court shall be void. In such circumstances, 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, such an assessment would be foreclosed if he was admitted to Wardship. Simply put, if the man was admitted to Wardship, he would never have a hearing about his capacity to marry and that issue would effectively be determined by default. The man would not have an opportunity to argue as to what the applicable test for capacity was and/or that he satisfies that test which would entitle him to marry his long-term partner.
Capacity to Marry
In the ruling of the three-judge Court of Appeal, Collins J. described the case as “acutely difficult” and noted the question of the man’s capacity to marry was “a matter of intense dispute”. The following are some of the factors which were taken into account by the Court of Appeal in upholding the man’s challenge:
- In her judgement, Whelan J. referred to Ryan v Attorney General  IR 294 where the Court found that the right to marry was a personal right under Article 40.3.
- Concurring with Whelan J, Collins J stated that the right to marry is a fundamental constitutional right as per Zappone v Revenue Commissioners  2 IR 417. He further commented that “The subsequent adoption by the people of the Thirty-Fourth 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 that 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 (the “Act”), which once commenced will repeal the Marriage of Lunatics Act in 1811. As set out above, the 1811 Act provides that the marriage of a Ward of Court shall be void. The situation will be different once the Act commences which will mean that some cognitively impaired people will be able to marry. In this regard, Collins J. stated that “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  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” to the man and his partner.
- Collins J. acknowledged that whatever ruling the Court of Appeal would make was certain to cause anguish. Collins J. stated that he did not disregard the countervailing factors present in this case and gave significant weight to the welfare concerns expressed by the siblings of the man. In this regard, Collins J. stated that he attached significant weight to the fact that the interim orders made by the High Court (which restrain the man from leaving the State and regulating where he lives) 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, Collins J. 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 ruling of the Court of Appeal has been welcomed by the Decision Support Service and a number of advocacy groups. The judgment represents the sea change, as envisaged by the Act, in terms of how society supports persons with capacity issues. It would seem that decisions such as this, which are in line with the uncommenced provisions of the Act, may become more frequent and will bring Ireland closer towards the human rights based model (as envisaged by the Act) and will move away from the older paternalistic / ‘best interests’ model.
The judgement of Whelan J. can be accessed here. The judgement of Collins J. can be accessed here.
The Act / DSS
The Act provides for a new human rights-based framework for people with capacity issues. The supports provided for and monitored by the Decision Support Service ("DSS"), will ensure individuals with capacity issues are afforded their fundamental human rights to make their own decisions as far as possible about their personal welfare, property and affairs and finances. The Act also abolishes the current Ward of Court system and replaces it with a modern, person-centred framework to maximise autonomy for people who require support to make decisions about their personal welfare, property and financial affairs. It is estimated that 220,000 adults in Ireland could benefit from these reforms.
Inquiry into Wardship
The Wardship procedure is commenced in the High Court. The High Court will direct an inquiry into the capacity of the individual prior to deciding whether the individual should be taken into Wardship. The following procedure applies:
- Two doctors will be required to provide evidence as regards the incapacity of the individual. If the Court is satisfied that the matter should proceed further, then the individual will be medically examined and a report furnished to the High Court in relation to the individual's capacity.
- If no objections are filed, a “Declaration Order” may be made declaring the individual to be of unsound mind and incapable of managing his/her affairs and taken into Wardship.
- A Committee of the Ward will also be appointed (usually the next-of-kin). All of the Wards funds and/or assets are then lodged with the Accountant of the High Court and the Accountant will have the responsibility for these funds.
- The appointed Committee of the Ward of Court oversee the Ward’s wellbeing and liaise with the Registrar of the Ward of Courts regarding their needs and requirements.
Sign up to our email digest
Click to subscribe or manage your email preferences.