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, aged in his 40s, had opposed being the subject of a wardship process as it prevented his planned civil 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 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 4, 2020, to halt the wardship inquiry in respect of the man.
Last December, the man initiated proceedings challenging the constitutionality of the wardship regime to establish if he was entitled to marry or, at least, have his capacity to marry assessed.
Mr Justice Maurice Collins said the question of whether people with intellectual disabilities should be able to marry raised complex issues. However, he said, attitudes had changed since the enactment of the Marriage of Lunatics Act in 1811 as demonstrated by 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 but, he said, it was regrettable that provisions of the 2015 Act had not been commenced, meaning the 1811 Act remains in force.
The judge said it was “a matter of real concern” the institution secured an 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 put the President of the High Court in a very difficult position, effectively presenting 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”.
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.
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 pointed out that 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.