The sister of an intellectually disabled man has told the High Court she supports its order prohibiting his civil legal marriage due to concerns he lacks capacity to consent to it.
She told Mr Justice Peter Kelly that her brother “likes his life as it is” and does not want to change it “in any way” but he also “takes the path of least resistance”. The woman did not object to any other form of non-legally binding service or wedding celebration which, the court heard, would proceed.
She also supported an inquiry into whether her brother should be made a ward of court.
Mr Justice Kelly had on Thursday granted a charity an urgent order prohibiting the man’s long planned civil marriage to an intellectually disabled woman.
The order was sought in the context of intended wardship proceedings on foot of psychiatric and psychological reports that the man, who lives in a facility provided by the charity and has substantial assets, lacks capacity to consent to marriage.
No order was sought concerning the woman who lives independently with supports and was described as having a higher level of functioning.
She and the man have been in a relationship for many years and her mother supports the marriage.
When the charity sought the order on Thursday, Mr Justice Kelly noted that it was aware of medical reports from March and May which took the view that the man lacked capacity.
The charity had also expressed concerns to the civil registrar of marriages, who said last March and May that he did not consider its objections sustainable in law in the context of the statutory regime the registrar has to administer.
Least damaging
Noting the wedding was long planned and due to take place shortly, the judge criticised the charity’s “gross delay” in seeking the prohibition order but granted it because he considered it the least damaging option for the man.
If the marriage proceeded, it was likely to be followed by proceedings to have it declared null and void, he said.
He considered the man would be more distressed by permitting the marriage and then having to undergo nullity proceedings. He also appointed an independent doctor to assess the man and report to the court concerning his capacity.
The matter had been returned to next week but was mentioned again on Friday because lawyers for the charity had only learned overnight that a solicitor with the Free Legal Advice Centres (Flac) had last May taken instructions on behalf of the man and woman in relation to the charity’s failed objection to the registrar of civil marriages concerning the planned marriage.
There had been contacts in late May between the charity and Flac concerning that objection, the judge was told.
Felix McEnroy SC, for the charity, said it apologised for the failure to notify the court on Thursday of Flac’s involvement. His side’s lawyers, having learned overnight of that, sought to inform the court at the earliest opportunity, he said.
Sinead Lucey, a solicitor with Flac, said it was not made aware of the intent to seek the prohibition order but was not seeking to set aside that order.
She said Flac had understood, following the registrar’s dismissal of the charity’s objection to the marriage, that it would proceed, she said.
Ms Lucey said a solicitor with Flac had had “significant contact” with the intended bride and her family but “less contact” with the man.
A plan to meet him on his own about two weeks ago to try and get a better sense” of his view of the marriage did not go ahead because of a last minute arrangement to visit his sister, she said.
The man’s sister said she believed he is “not being listened to”, the solicitors were not acting for him at all in this matter and he should have his own lawyer.
Having heard the sides, the judge accepted there was no deliberate attempt by the charity or its lawyers to suppress information, still less to mislead the court.
He reiterated the prohibition order applies only to a civil legal marriage and not to any religious or humanist ceremony. He repeated his order restraining publication, including on social media, of anything that might identify the parties. The matter will return before the judge next week.
