Judge refuses to halt wardship inquiry for intellectually disabled man

The “best interests” of an intellectually disabled man require that an inquiry into whether he should be made a ward of court be held before his challenge to a ban on his civil legal marriage and the constitutionality of the court’s wardship jurisdiction, the president of the High Court has ruled.

The man, aged in his 40s, objects to wardship and the court order that prevented his civil legal marriage last June.

In a ruling on Tuesday, Mr Justice Peter Kelly refused to adjourn wardship proceedings concerning the man pending his application for a protective costs order against the State. This was sought to ensure he is not liable for costs of his constitutional challenge to wardship.

Should the costs order be refused, the constitutional challenge would not proceed, his lawyers said.

The judge said it would take months for the costs matter to be decided and probably years for the full constitutional challenge if that proceeded. He said his “overwhelming” concern was the man’s best interests. Those, and the interests of justice, were served by the wardship inquiry proceeding next month, he ruled.

Until the inquiry is decided, the man remains in “a legal limbo” concerning his welfare and his substantial estate in circumstances where six doctors have all agreed he lacks capacity to manage his person and finances, he said.

If the man succeeds in his opposition to wardship, his constitutional challenge remains but deferring the inquiry would amount to proceeding as if his claims in that case were already decided in his favour.

Right to marry

An adjournment would also deprive him of the court protection that his siblings and a charity caring for him strongly support. While the man’s intended bride claims she has a right to marry him, that right is “not absolute” as she is entitled to marry a person once they have capacity to consent to marriage and the issue of the man’s capacity has yet to be decided, he added.

Represented by the Free Legal Advice Centres, the man initiated a challenge last December both to an order restraining his civil legal marriage and to the constitutionality of the High Court’s entire wardship jurisdiction.

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.

His intended bride, who has an intellectual disability but is high functioning and not subject of any court order, has taken separate proceedings claiming the order banning their marriage, breaches her rights.

A wardship inquiry concerning the man was directed by the High Court last September but has yet to take place. Frank Callanan SC, for the man, asked last week that the wardship hearing be adjourned pending the protective costs order application. Any adjournment was strongly opposed by the man’s siblings and by the charity providing services for him.

In his ruling, Mr Justice Kelly said six reports by consultant psychiatrists and consultant psychologists had all concluded he lacks capacity to manage his person or his financial affairs.

Understanding

One of the reports, by a consultant psychiatrist who was asked by the man’s side, had concluded he met the “narrow” criteria for wardship but had demonstrated a “basic but sufficient” level of understanding of the nature of marriage and of the marriage contract for him to be deemed to have capacity to marry his intended bride.

Until wardship is decided, uncertainty remains about who decides matters affecting the man’s health, medical treatment and finances, the judge said. The man’s estate is “already jeopardised” as a result of the constitutional proceedings been issued in his own name and the court had “no idea” how the man gave instructions to bring those given the unanimous view of doctors on his capacity.

As the man is not a ward of court, there is an issue whether he has legal standing to bring the constitutional challenge, he said. If the man is not taken into wardship following an inquiry, he will be free to marry who he pleases, he noted.