S. Ltd v A. & F

JudgeMs. Justice Máire Whelan,Mr. Justice Maurice Collins
Judgment Date05 August 2020
Neutral Citation[2020] IECA 225
CourtCourt of Appeal (Ireland)
Docket NumberRecord Number: 2020/59
Date05 August 2020


Notice Party

[2020] IECA 225

Whelan J.

Faherty J.

Collins J.

Record Number: 2020/59


Adjournment – Wardship – Protective costs order – Appellant seeking to adjourn a wardship inquiry – Whether the President of the High Court erred on the various grounds identified by him in refusing to grant the adjournment sought

Facts: An application was made to the President of the High Court on 28 January 2020 on behalf of the appellant and supported by the notice party to adjourn a wardship inquiry in relation to the appellant pending determination of a protective costs order (PCO) motion in plenary proceedings. In an ex tempore decision delivered on 4 February 2020, the President refused to adjourn the wardship inquiry, directing that it proceed to a hearing on 12 and 13 March 2020. The appellant appealed to the Court of Appeal against that refusal. Key issues amongst the extensive grounds of appeal of the appellant were that the President erred on the various grounds identified by him in refusing to grant the adjournment sought, considered irrelevant matters, failed to have regard to relevant matters and failed to have regard to the prejudice which would accrue to the appellant were the wardship proceedings determined prior to the determination of the plenary proceedings. The respondent opposed the appeal. At the conclusion of the hearing of the appeal on 10 March 2020, in light of the exigencies arising, the court allowed the appeal.

Held by Whelan J that the President’s weighing of the factors was clearly erroneous. Whelan J held that, in coming to his conclusion to refuse the adjournment sought, the President misdirected himself with regard to several crucial factual matters which cumulatively persuaded him to refuse the application. Whelan J held that the President further attached insignificant weight to the gravity of the practical consequences for the appellant in circumstances where the unanimous medical evidence was that the appellant’s capacity is such that he ought to be admitted to wardship. Whelan J held that the President failed to have due regard to the fact that wardship would automatically and permanently deprive the appellant of his right to make his own decisions and in particular the right to litigate the irrevocable nature of the Marriage of Lunatics Act 1811 and whether he had legal capacity to consent to a marriage. Whelan J held that the contentions on behalf of the respondent that wardship was immediately needed for the purposes of protecting the welfare of the appellant and affording him care did not, in the particular circumstances, warrant being given the weight that the President gave to them and, at the least, such considerations were materially outweighed by the prejudice identified by the appellant. Whelan J was satisfied that the bona fide and reasonable concerns of the respondent and the notice parties could be addressed by the undertaking of the appellant to consent to the existing interim orders continuing pending conclusion of the PCO application. An undertaking was given by Mr Lynn S.C. to progress the PCO motion with all due expedition which met the concerns regarding delay. Further, it was accepted by counsel on behalf of the appellant that the respondent and the next of kin were entitled to apply to the President of the High Court in wardship for such further or other interim orders, or further directions, as they considered necessary or appropriate in the interests of the welfare of the appellant. It was further confirmed that all reasonable efforts would be taken by FLAC, who had been retained as agents by the appellant, to endeavour to foster a positive relationship in all respects, and insofar as feasible, between the appellant and his brother and sister. Counsel on behalf of the notice party confirmed that all reasonable steps would be taken to foster and encourage a positive relationship between the appellant and his siblings and that nothing would be done to undermine or in any way trench on that relationship.

Whelan J held that, in light of the jurisprudence, she was satisfied that the order refusing the adjournment ought to be set aside.

Appeal allowed.

On 10 March 2020 the Court of Appeal made an Order pursuant to Section 27 of the Civil Law (Miscellaneous Provisions) Act 2008 prohibiting the publication or broadcast of any matter relating to these proceedings which would, or would be likely to, identify A or F.

JUDGMENT of Mr. Justice Maurice Collins delivered on 5 August 2020

The Court today gives its detailed reasons for allowing the appeal of the appellant (referred to in this judgment as “A”) from the decision of the then President. Kelly P, declining to adjourn a wardship inquiry in respect of him. The decision of the President was given on 4 February 2020. The inquiry was listed for hearing (before McDonald J) on 12 and 13 March 2020 and A's appeal, given its obvious urgency, was given an early hearing date and was heard by the Court on 10 March 2020. At the conclusion of the hearing the Court indicated that it was allowing the appeal, subject to certain terms specified by Whelan J in her ex tempore ruling with which the other members of the Court agreed.


I have read in advance the judgment delivered by Whelan J today and I agree with its analysis and conclusions. I wish to add some observations of my own in recognition of the importance of this matter to those involved. In doing so, I gratefully adopt Whelan J's account of the evidence and facts.


This was an acutely difficult application. A is an adult man with Down syndrome. The Respondent (referred to in this judgment as “ S“), which is the institution which has had responsibility for the care of A for the past five years (and which A previously attended on a non-residential basis) and which clearly knows him well, is of the view that A needs the protection of wardship. A's sister and brother both attended the appeal hearing (A's brother having travelled from Australia to do so, as he had done for previous hearings also). Their commitment to the welfare of their brother was palpable. They are clearly concerned that A is being exploited. They were invited to address the Court (without objection from any party) and each said that their brother was not making his own decisions. It is clear that their relationship with A – which was very close – has been put under severe strain. Each strongly and sincerely believes that their brother is not in a position to make a free and informed decision to marry and both are of view that it is in his bests interests that he should be brought into wardship immediately. On any view, these are powerful considerations in favour of allowing the wardship proceedings to proceed.


As against that, if A is made a ward (as seems very likely, if not inevitable, given the applicable statutory test and the nature of the available evidence as to his capacity), a consequence will be that, by virtue of the Marriage of Lunatics Act 1811 (“ the 1811 Act“), he will not be able to marry the Notice Party (referred to in this judgment as “ F“), and any marriage he might purport to enter with her would be void.


That, in the event that he is made a ward. A will not be able to contract a valid or lawful marriage as long as he is a ward and as long as the 1811 Act remains in force was fairly accepted by Counsel for S. The prohibition on marriage in the Act was, he accepted, absolute and unqualified and the powers of the High Court in wardship did not extend to permitting a ward to marry. That is so even if – as authority from England and Wales suggests is the case – the test for capacity to marry is different to (and less exacting) than the test for admission to wardship and even if A is capable of satisfying that less exacting threshold. 1


In December 2019 A brought proceedings challenging the constitutionality of the statutory wardship regime, as well as its compatibility with the European Convention on Human Rights (ECHR). Those proceedings impugn (inter alia) the 1811 Act. The essential purpose of those proceedings, as I understand it, is to establish that A is entitled to marry or, at least, that he is entitled to have his capacity to marry assessed and determined by a fair and appropriate procedure.


The question of whether, and in what circumstances, persons whose intellectual capacity is, for whatever reason, impaired should be permitted to marry raises complex issues. What may be said with some confidence, however, is that societal attitudes to that question have changed significantly since the enactment of the Marriage of Lunatics Act in 1811. eight years before the birth of Queen Victoria. If that proposition requires proof – and if the very title of the 1811 Act is not considered proof enough – it is demonstrated by the fact that in 2015 the Oireachtas enacted the Assisted Decision-Making Capacity Act 2015, section 7(1) of which repeals the 1811 Act. 2


The 2015 Act provides for a quite different approach to deciding questions of personal capacity. As well as repealing the 1811 Act, it also repeals the Lunacy Regulation (Ireland) Act 1871. Section 3 of the 2015 Act provides that a person's capacity is to be assessed functionally, “on the basis of his or her ability to understand, at the time that a decision is to be made, the nature and consequences of the decision to be made by him or her in the context of the available choices at that time.” That is in contrast to the existing wardship regime, where a ward is treated as lacking decision-making capacity generally.


Section 8 of the 2015 Act also sets out important guiding principles governing interventions under the Act. Section 8(6) provides that:

“(6) An intervention in...

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