Tuesday 23 July 2019

High Court blocks marriage of man with intellectual disabilities

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Tim Healy

A charity has got a High Court order prohibiting an intellectually disabled man going ahead with a civil marriage to an intellectually disabled woman.

The order was sought in the context of intended wardship proceedings on foot of medical evidence the proposed bridegroom lacks the necessary capacity to consent to marriage.

The charity, which provides services to people with disabilities, sought the order only in relation to the man.

The president of the High Court, Mr Justice Peter Kelly, said on Thursday he was making the prohibition order with “considerable reluctance” given "gross delay" in seeking it but he considered it the least damaging option for the man.

There was no difficulty about directing an inquiry into capacity in the context of wardship proceedings but his concern was the lateness of seeking the injunction restraining the marriage, the judge said.

This marriage was planned for a long time and the charity has been aware of reports of his lack of capacity for months past and also expressed concerns to the civil registrar last December who later indicated he did not consider the objections were sustainable in law give the statutory regime he has to administer.

A psychiatric report last month which concluded the man lacked capacity to marry followed reports by psychologists last March also deeming him to lack capacity.

In those circumstances, there was "gross delay" by the charity in coming to court.

Hearing both sides is a basic requirement of natural justice but the court has an "exceptional" jurisdiction where it can intervene in a situation of real urgency to prevent something happening that could have real consequences for parties.

If the marriage proceeds, it is likely to be invalid and to be followed by proceedings to have it declared null and void.

It would remain a recognised marriage until annulled and he considered the man would be more distressed by permitting the marriage and then having to undergo nullity proceedings.

Neither of the options before the court were attractive but he had concluded the better option was to stop the marriage as it was not in  the man's best interests to permit him enter a contract of marriage he does not understand and does not have capacity to understand, he held.

The judge said he was sure the order would mean "great disappointment" for the couple and their wedding guests but the evidence is strong that, having regard to the nature of the man's intellectual disability, he lacks capacity to understand what marriage is or to enter into that.

There were also issues about the woman's capacity but to a "lesser extent" and he was not being asked to adjudicate those, the judge stressed.

The order applied only to the civil marriage aspect of the event and not to any party element, he further stressed.

He was fortified in his decision by the fact the man’s siblings also appeared to oppose the planned marriage. The woman's mother supported it, he noted.

The judge returned the matter to next week and made additional orders for a independent medical doctor to assess the man and report to the court on his capacity in the context of wardship proceedings.

Those proceedings will decide whether the man, who has substantial assets, has capacity to make decisions about his personal and financial affairs or should be taken into wardship.

The man has lived for a number of years in a residential facility supported by the charity.

His intended bride, who also has an intellectual disability but is described as having a high level of functioning, lives independently with supports from the charity.

Earlier, making the application, Felix McEnroy SCsaid the matter was urgent and was brought ex parte (one side only represented) because the marriage is due to take place shortly.

Counsel apologised for the delay in coming to court and said every effort had been made to resolve the issue on a non-adversarial basis.

When those efforts failed, his client considered it was necessary, because of the clear evidence the man lacked capacity, the marriage be restrained in order to vindicate his rights.

An advocate for the man had said the man told him last April he did not wish to be married and members of his family were concerned about undue influence and supported a wardship application, the court was also told.

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