People with intellectual disabilities who want to marry.

In the matter of A

A man with an intellectual disability who wants to marry his long term partner has won his appeal to halt an inquiry into whether he should be made a Ward of Court.

In June 2019, the man’s care provider successfully applied for an injunction from the High Court to prevent the man from marrying his 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 despite there being no assessment of his capacity to marry.

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.

The Court of Appeal

In August 2020, the Court of Appeal heard the man’s application to halt the Wardship proceedings. The Court of Appeal had to decide 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 Court of Appeal did not decide whether the man in fact had capacity to marry as that would necessitate substantive court hearings.

The Court of Appeal upheld the man’s challenge. The Marriage of Lunatics Act 1811 says 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 unavailable if he was admitted to Wardship. In other words, if the man was admitted to Wardship, he would never have a hearing about his capacity to marry and that door would be (permanently) closed to him. The man would not have an opportunity to show that he did indeed have the capacity to marry.

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 judgment, 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.

Concurring with Whelan J, 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 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 judgment, 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 (the “2015 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 intellectually disabled 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.” (Despite its enactment, the 2015 Act has never been put into operation).

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” 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 Assisted Decision-Making (Capacity) Act 2015


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. Despite the pressing need for this Act, successive governments in Ireland have left it “on the shelf”, unused.

Constitutional Challenge

In November 2020 the man brought a constitutional challenge against the Ministers for Health and Justice, Ireland and the Attorney General over laws he claims are wrongfully, and in breach of his rights, preventing him from getting married.

He seeks various declarations including that the 1811 Marriage of Lunatics Act and the 1871 Lunacy Regulations are unconstitutional, and breach his rights under the European Convention of Human Rights. The 1871 Act regulates the High Court’s wardship procedure, while the 1811 Act voids any marriage entered into by a ward of court.

He also seeks a declaration the wardship jurisdiction vested in the High Court president in the 1936 Courts of Justice Act, and the 1961 Courts Act is unconstitutional and also breaches his rights under the ECHR.

He further seeks a declaration, in order to protect and vindicate his rights, the defendants must bring into force without further delay section 7 of the 2015 Assisted Decision Making (Capacity) Act which provides for replacement of the existing wards of court system and introduction of a new system of supported decision-making.

Ms Justice Leonie Reynolds made orders for the Irish Human Rights and Equality Commission to be joined as an amicus curiae to the action. The Commission, represented by Eoin McCullough SC, will provide submissions on the legal issues. The matter will be mentioned before the court in January, with a view to being heard in the spring 2021 session.

About Neil van Dokkum

Neil van Dokkum (B. SocSc; LLB; LLM; PGC Con.Lit) Neil is a law lecturer and has been so since arriving in Ireland from South Africa in 2002. Prior to that Neil worked in a leading firm of solicitors from 1987-1992, before being admitted as an Advocate of the Supreme Court of South Africa (a barrister) in 1992. He published three books in South Africa on employment law and unfair dismissal, as well as being published in numerous national and international peer-reviewed journals. Neil currently specialises in employment law, medical negligence law, family law and child protection law. He dabbles in EU law (procurement and energy). Neil retired from full-time practice in 2002 to take up a lecturing post. He has published three books since then, “Nursing Law for Irish Students (2005); “Evidence” (2007); and “Nursing Law for Students in Ireland” (2011). His current interest is the area of disability as a politico-economic construct. Neil is very happily married to Fiona, and they have two sons, Rory and Ian.
This entry was posted in Special Needs; Intellectual Disability; Marriage and tagged . Bookmark the permalink.

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