The Circuit Court has refused an application seeking to prevent an anonymised man with an intellectual disability from marrying his long-term partner, finding that the legal presumption that he has capacity was not displaced.
A residential centre had sought a declaration that A.B., a man in his forties, lacked capacity to consent to marriage even with assistance from a co-decision-maker. Such a declaration would have created a legal impediment to his proposed marriage to C.D., his partner of more than 20 years, who also has an intellectual disability.
Two consultant psychiatrists had concluded that A.B. lacked capacity to marry. Their assessments found that although he consistently expressed love for C.D. and a wish to marry her, he did not adequately understand matters including marriage's legal and financial implications.
Judge Geoffrey Shannon SC accepted that the experts had approached a difficult task professionally. However, he found the assessments did not sufficiently comply with the Assisted Decision-Making (Capacity) Act 2015 and its supporting Code of Practice.
Central to the ruling was the requirement that a person cannot be found unable to make a decision unless all practicable steps have first been taken to assist them. The court found insufficient evidence of a sustained, tailored and educational process using measures such as repeated explanations, contextual examples, visual supports or role-play.
The judgment also set out a four-part approach to capacity to marry: understanding the nature of marriage; appreciating its duties and responsibilities; recognising its potential consequences; and being able to give full, free and informed consent. The threshold, the judge stressed, must remain deliberately low and must not become a discriminatory barrier for people with intellectual disabilities.
The court found no reliable evidence of coercion or undue influence and accepted that A.B.'s wish to marry C.D. appeared genuine and enduring.
The declaration was refused. The residential centre was given liberty to make a future application if fresh evidence satisfies the statutory requirements.