The Irish Court of Appeal has overturned a decision of the former President of the High Court refusing to adjourn a wardship inquiry pending determination of a Protective Costs Order (PCO) motion.
AV, a man with Down Syndrome and a moderate intellectual disability wanted to marry LF, a woman who also has Down Syndrome and a learning disability. S, a charity which cares for AV, was granted an injunction preventing the marriage and proceedings were initiated to make AV a ward of court. Under the Marriage of Lunatics Act 1811 (the 1811 Act), wards of court are prohibited from getting married. AV instituted proceedings against the Minister for Health, the Minister for Justice and Equality, Ireland and the Attorney General challenging the validity, constitutionality and compatibility with provisions of the European Convention on Human Rights (ECHR) of the 1811 Act, the Lunacy Regulation (Ireland) Act 1871 (the 1871 Act) and the wardship jurisdiction vested in the President of the High Court. An order is also sought to compel the bringing into force of section 7 of the Assisted Decision-Making (Capacity) Act 2015 (the 2015 Act) which repeals the 1811 and 1871 Acts.
A motion was issued seeking a PCO relieving AV of any liability to pay costs irrespective of the outcome. An application was made to adjourn the wardship inquiry pending determination of the PCO motion. The High Court refused to adjourn the wardship inquiry, and AV appealed this decision to the Court of Appeal.
The Court stated that it would grant “very considerable deference” to the President of the High Court acting in wardship and would only intervene where a clear error was made that would produce an injustice. The Court held that the balancing exercise conducted by the President was “clearly erroneous”. It held that the President “misdirected himself with regard to several crucial factual matters which cumulatively persuaded him to refuse the application.” He attached insignificant weight to the adverse impact wardship would have on AV’s entitlement to marry and to litigate. The President had failed to attach sufficient weight to the fact that undertakings were offered on behalf of AV to the continuation of the existing interim orders, in particular the order prohibiting AV from getting married. Were any further welfare concerns to arise, S and AV’s siblings could seek further orders or directions as they consider necessary or appropriate in the interests of AV’s welfare. The Court concluded that adjourning the wardship inquiry was the course of action “which carries the least risk of injustice to the parties”.
Collins J concurred with the judgment of the Court and added his own observations “in recognition of the importance of this matter to those involved”. He expressed regret at the fact that the relevant provisions of the 2015 Act had not been commenced “given the vital importance of the issues” it addresses. He stated that the evidence establishes a “very significant risk” that making AV a ward of court “would prevent his marriage to LF, effectively foreclose inquiry into his capacity to marry, bring to a premature conclusion proceedings in which he seeks to assert and vindiciate that right and effectively condemn him to remaining unmarried for the forseeable future: all of this without any hearing whatever as to AV’s capacity to marry”. He stated that this would involve “such a manifest and serious injustice” to AV and LF that it would be difficult to envisage circumstances in which the court could contemplate making such an order. He concluded that in these circumstances, the Court was not only entitled, but obliged to intervene and overturn the decision.
Click here to read the full judgment in S. Ltd v A and F.
Click here to read Collin J’s observations in S. Ltd v A and F.