An intellectually disabled man prevented by court order from entering into a civil legal marriage has initiated a significant challenge aimed at having the High Court’s entire wardship jurisdiction struck down as unconstitutional.
The man, aged in his forties, objects to being taken into wardship and to the ban on his marriage.
He is challenging two Acts - the Lunacy Regulation (Ireland Act 1871), which regulates the High Court’s wardship procedure, and the Marriage of Lunatics Act 1811, under which any marriage entered into by a ward of court is automatically void.
It is claimed both are unconstitutional and/or incompatible with the European Convention on Human Rights.
He also wants declarations aimed at securing commencement of provisions of the Assisted Decision Making (Capacity) Act 2015, which provides for replacement of the existing wards of court system and introduction of a new system of supported decision-making.
The man’s siblings and a charity providing residential and other services for him support wardship for reasons including six medical reports have all found he lacks capacity to make decisions about managing himself and his finances, which include a substantial inheritance.
His intended bride, who has an intellectual disability but is high functioning and not subject of any court order, also claims the order banning their marriage last summer breaches her rights. The two have been in a relationship for more than 15 years.
When the wardship matter was mentioned on Tuesday before High Court president Mr Justice Peter Kelly, who manages the wards of court list, he was asked by Frank Callanan SC, for the man, to adjourn the wardship hearing pending clarification of issues concerning the constitutional challenge.
Those issues include whether the State will effectively immunise the man from any legal costs orders should he lose the challenge.
Having heard the sides, the judge said he will rule next week whether to grant the adjournment or proceed with the wardship inquiry.
In seeking the adjournment, Mr Callanan, with Patricia Brazil BL, instructed by the Free Legal Advice Centres (Flac), said the constitutional proceedings, initiated last month, oppose the man being taken into wardship, maintain he has a right to marry, and challenge the Lunacy Regulation (Ireland) Act 1871 and Marriage of Lunatics Act 1811.
His side had sought an undertaking from the State not to seek costs if the man loses that case but the Chief State Solicitor had indicated the undertaking application was premature.
As a result, an application for a protective costs order has been returned to next month, counsel said. That order was sought because of concerns the man lacked capacity to understand the costs consequences should he lose the case. If the costs order was refused, the constitutional case was unlikely to proceed, he indicated.
Ciaran Craven SC, for the intended bride, said she has important constitutional rights affected by the marriage ban. Because the man’s constitutional case may decide many of the issues, they would await the outcome of Mr Callanan’s adjournment application.
Felix McEnroy SC, for the charity, said four consultant psychiatrists and two consultant psychologists have all reported the man meets the criteria for wardship in that he lacks capacity to manage himself and his finances.
Rights depend on the reality of an individual’s circumstances and there is no dispute this man is a vulnerable adult with disabilities who requires a high degree of protection, he said.
If the constitutional challenge proceeds, it will take a long time and the man’s welfare should not sit in this “litigation vacuum” pending the outcome, he added.
The man’s sister said she has known him for some 40 years and, while Flac say they are representing him, they are in “no way representing his views”. She said he dislikes conflict and needs the protection of the court.
In reply, Mr Callanan said the charity appeared to have arrogated to itself a “remarkable” role seeking to stop the man pursuing the legal action he has initiated and also appeared to be seeking to diminish the gravity of the issues raised.
His side have a doctor’s report concluding the man has capacity to marry but not to manage his personal property, counsel added.
