200 year old Marriage of Lunatics Act Under Challenge
The Irish Human Rights and Equality Commission (“the Commission”) has today been granted liberty by the High Court to exercise its amicus curiae (“friend of the court”) function in a case that raises important questions about the human rights and equality of persons with disabilities and wards of court.
The case (V. v Minister for Health and Ors) centres on a man (V.) with an intellectual disability who wants to marry his fiancée. Last year, the couple were prevented from marrying following an application to the High Court to have V. made a ward of court. The President of the High Court granted an injunction to prevent the ceremony from going ahead. Concerns about V.’s capacity to marry were raised with the President of the High Court.
V.’s lawyers argued that a wardship inquiry was not the appropriate forum to determine his capacity to marry, because the legal tests for wardship and for the decision-making capacity to marry are different. If made a ward of court, V. would not be able to marry.
The offensively titled Marriage of Lunatics Act 1811, which remains on Ireland’s statute books 200 years after its passing at Westminster, prevents people who are wards of court from marrying. In this situation, if V. was made a ward of court he might be prevented from marrying his fiancée before it could be determined whether he has the capacity to marry.
V. challenged the President of the High Court’s decision to hear the wardship inquiry before determining whether or not V. had capacity to marry. When this challenge came before the Court of Appeal, the wardship proceedings were put on hold.
V.’s legal team is now challenging the constitutionality of High Court’s wardship jurisdiction and the Marriage of Lunatics Acts 1811, and whether they are compatible with the European Convention of Human Rights and Ireland’s disability rights obligations.
As amicus curiae, the Commission will now assist the High Court with submissions about the rights of people with disabilities under the Irish Constitution, the UN Convention of the Rights of Persons with Disabilities (UNCRPD) and the European Convention of Human Rights.
Sinéad Gibney Chief Commissioner of the Irish Human Rights and Equality Commission stated:
“This case is an important challenge to the restrictions of rights of persons with disabilities. The right to marry and admission to wardship are significant issues for people with disabilities across Ireland. The UN Convention on the Rights of Persons with Disabilities says that the State should recognise that people with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.
“It’s shameful that, in part because the Assisted Decision Making (Capacity) Act has still not been commenced, we still have a law passed in Westminster 200 years ago setting out how people with disabilities should be treated in Ireland in 2020.
“This legislative relic shows that we need to start taking the rights of people with disabilities seriously in line with our commitment to the UN Convention on the Rights of Persons with Disabilities, which views the rights of disabled people through a lens of dignity, agency and participation.”
ENDS/
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Editor’s Note
As the Irish Human Rights and Equality Commission is now formally involved in these proceedings, we are precluded from making any further comment as the matters are before the Court.
Where written submissions are made by the Irish Human Rights and Equality Commission to the superior Courts in amicus curiae cases they will be made available on www.ihrec.ie after the case has been heard.
Marriage of Lunatics Acts 1811.
The signing into law by the President of the Assisted Decision-Making (Capacity) Act on the 30 December 2015 should have seen the repeal Marriage of Lunatics Acts 1811 and other Victorian era capacity legislation from Ireland’s statute books.
However a failure to commence this legislation in full means that this two hundred year old law, enacted before the famine remains in force, despite Ireland having ratified the UN Convention on the Rights of Persons with Disabilities.
The amicus curiae function of the Irish Human Rights and Equality Commission.
The Commission’s functions under the Irish Human Rights and Equality Commission Act 2014 include that of applying for liberty to appear as an amicus curiae (friend of the court) before the superior courts in proceedings that involve, or are concerned with, the human rights or equality rights of any person.
Section 10 of the Irish Human Rights and Equality Commission Act sets out the functions of the Commission and Section 10(2)(e) provides that the IHREC shall have a function:
“to apply to the High Court or the Supreme Court for liberty to appear before the High Court or the Supreme Court, as the case may be, as amicus curiae in proceedings before that Court that involve or are concerned with the human rights or equality rights of any person and to appear as such an amicus curiae on foot of such liberty being granted (which liberty each of the said courts is hereby empowered to grant in its absolute discretion).”
Irish Human Rights and Equality Commission
The Irish Human Rights and Equality Commission is an independent public body, appointed by the President and directly accountable to the Oireachtas. The Commission has a statutory remit set out under the Irish Human Rights and Equality Commission Act (2014) to protect and promote human rights and equality in Ireland, and build a culture of respect for human rights, equality and intercultural understanding in the State.
The Irish Human Rights and Equality Commission is Ireland’s national human rights institution and is recognised as such by the United Nations. The Commission is also Ireland’s national equality body for the purpose of a range of EU anti-discrimination measures.