Human rights commission joined to challenge over marriage of ward of court
Posted on 18th November 2020 at 19:28
An intellectually disabled man has been prevented from marrying his girlfriend
The Irish Human Rights and Equality Commission has been joined to a constitutional challenge by an intellectually disabled man who has been prevented from marrying his girlfriend.
The man, who cannot be identified for legal reasons, initiated the proceedings after a High Court order was obtained last year preventing him entering into a civil marriage with his girlfriend of 15 years who also has an intellectual disability.
The day before the wedding, a charity which provides residential and other services for him applied to the High Court to make him a ward of court. It was argued the man did not have the capacity to marry or make important decisions about managing his person and finances.
Arising out of that application the then president of the High Court Mr Justice Peter Kelly made an order preventing the marriage going ahead.
The man’s siblings support the application to make him a ward of court. He objects to wardship and wishes to proceed with the marriage. He has now 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.
The challenge was briefly mentioned on Wednesday before Ms Justice Leonie Reynolds who made orders for the 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. There were no objections to the Commission being joined.
The judge also put in place an agreed timetable for the exchange of documents in the case. The matter will be mentioned before the court in January, with a view to being heard in the spring 2021.
Ms Justice Reynolds had raised the court’s concern about the length of time the process would take, given the case appeared to be urgent.
Frank Callanan SC, with Michael Lynn SC, for the man, said a lot of work has been done but it would take time to prepare and finalise witness statements. The State would then require time to reply to the statements, counsel said. The parties want the matter to be heard as soon as possible.
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