Court dismisses assisted decision-making declaration for marriage, upholding presumption of capacity absent coercion evidence.

AN CHÚIRT CHUARDA THE CIRCUIT COURT

DUBLIN CIRCUIT COUNTY OF DUBLIN

RECORD NUMBER: 2024.0000328

IN THE MATTER OF PART 5 OF THE ASSISTED DECISION-MAKING (CAPACITY) ACT 2015, AS AMENDED

And In The Matter of AB

Relevant Person

-and-

A Residential Centre Applicant

-and-

CD

Notice Party

Neutral Citation: [2025] IECC 7

Status: Approved

Date of Delivery: 4 November 2025

Delivered by: His Honour Judge Geoffrey Shannon SC

Contents

1. Introduction .................................................................................................................................................... 3

2. Summary of the Proceedings.......................................................................................................................... 3

3. Issue to be Decided ........................................................................................................................................ 3

4. Background .................................................................................................................................................... 3

5. High Court Order ........................................................................................................................................... 4

6. Ex-Parte Application ...................................................................................................................................... 5

7. The Applicant’s Case ..................................................................................................................................... 5

8. The Relevant Person’s Case ........................................................................................................................... 6

9. The Notice Party’s Case ................................................................................................................................. 7

10. The Assisted Decision-Making (Capacity) Act 2015 ..................................................................................... 7

11. Guiding Principles.......................................................................................................................................... 9

12. Interaction between the Assisted Decision-Making (Capacity) Act 2015 and Marriage ............................. 10

13. Marriage ....................................................................................................................................................... 10

14. Public Interest and Marriage ........................................................................................................................ 11

15. The Right to Marry....................................................................................................................................... 11

16. Capacity Test................................................................................................................................................ 12

17. Marriage Test ............................................................................................................................................... 13

18. UK Cases ..................................................................................................................................................... 14

19. European Convention on Human Rights ...................................................................................................... 17

20. Irish Test ...................................................................................................................................................... 17

21. Supports ....................................................................................................................................................... 18

22. Weight given to Expert Reports ................................................................................................................... 19

23. Consideration of Expert Evidence ................................................................................................................ 20

24. Evidence of Dr. EF....................................................................................................................................... 20

25. Evidence of Dr. GH...................................................................................................................................... 23

26. Report of Dr. MN ......................................................................................................................................... 24

27. The Evidence................................................................................................................................................ 25

28. Undue influence ........................................................................................................................................... 26

29. Discrimination .............................................................................................................................................. 27

30. Voice of the Relevant Person and the Notice Party ..................................................................................... 28

31. Closing Submissions .................................................................................................................................... 28

32. The Court’s Findings.................................................................................................................................... 30

33. Court Decision ............................................................................................................................................. 32

1. Introduction

1.1 The identity of all parties in these proceedings have been changed to preserve their anonymity. To achieve this objective and for the purposes of this determination, the parties have been allocated fictional names.

2. Summary of the Proceedings

2.1 The Applicant in this case is a residential centre (hereinafter “the Applicant”). The Relevant Person is Mr. AB (hereinafter “the Relevant Person”) and the Notice Party is Ms. CD (hereinafter “the Notice Party”).

2.2 The Relevant Person is in his forties and has an intellectual disability. He has resided in the residential centre for a number of years, following the death of his parents. The Notice Party, also an adult with an intellectual disability, is his long-term partner.

2.3 Both the Relevant Person and Notice Party have been in a committed relationship for approximately 20 years. Their relationship is described by all who know them as one of genuine love, mutual support, and enduring commitment. They have participated in a celebration of their relationship and have consistently expressed a wish to marry. The Notice Party lives independently with support, while the Relevant Person resides in a supported living environment.

2.4 The issue for determination by this Court is narrow in scope but significant in consequence: whether the Relevant Person possesses the requisite capacity to marry. The applicable legal framework, including the Assisted Decision-Making (Capacity) Act 2015 (“the 2015 Act”), will be addressed in detail later in this judgment. The statutory test requires that a person must be able to understand, retain, use and weigh relevant information, and communicate a decision in relation to the specific issue at hand, in this case, marriage.

2.5 The law presumes capacity. The burden of proving otherwise rests with the party asserting incapacity, and the standard of proof is on the balance of probabilities. A determination of incapacity in one domain does not imply incapacity in others.

2.6 The implications of this decision are profound. It concerns whether the Relevant Person may lawfully marry the Notice Party, his long-term partner. The outcome will have enduring personal and legal consequences for both individuals.

3. Issue to be Decided

3.1 The Applicant is seeking a declaration under section 37(1)(b) of the 2015 Act that the Relevant Person lacks capacity, even if the assistance of a suitable person as a co-decision-maker were made available to him, to consent to marriage.

3.2 If the Court grants the Declaration sought by the Applicant in this case, it would be a legal impediment to the marriage between the Relevant Person and the Notice Party in light of the provisions of the Civil Registration Act 2004 (“the 2004 Act”) as amended by the 2015 Act which expressly provides that there is an impediment to a marriage if-

“one of the parties to the proposed marriage lacks, or both of the parties to the proposed marriage lack, the capacity (within the meaning of the Assisted Decision-Making (Capacity)

Act 2015) to consent to the marriage.” (Section 143(a).)

4. Background

4.1 These proceedings arise following previous litigation concerning the Relevant Person.

4.2 The Relevant Person, born in the nineteen seventies, resides in a designated residential centre operated by a provider in the East of the country. He has resided there for a number of years and has an intellectual disability.

4.3 Both of the Relevant Person’s parents were professionals. His mother passed away a number of years ago and his father died thereafter. Provision was made for the Relevant Person under their estates.

4.4 The Relevant Person has been in a committed relationship with the Notice Party for over two decades. The Notice Party also has an intellectual disability and resides independently with support from the Applicant.

4.5 The Notice Party asserts that her relationship with the Relevant Person is characterised by mutual affection, companionship, and emotional commitment. It is submitted by the Applicant that the Notice Party functions at a higher cognitive level than the Relevant Person.

4.6 The Applicant became aware of plans for the couple to marry. Concerns were raised regarding the Relevant Person’s capacity to consent to marriage. Engagement followed between the parties, their families, and the Registrar of Births, Deaths and Marriages, but the Applicant contends that these efforts did not resolve the issue.

4.7 The High Court granted an interim injunction restraining the Relevant Person from participating in any marriage ceremony. That order remained in place for a number of years.

4.8 The injunction was vacated by the High Court, subject to a stay pending the outcome of these proceedings and any appeal therefrom.

4.9 A celebration of their relationship later took place, during which the couple dressed formally and exchanged vows. The Relevant Person refers to the Notice Party as his wife.

4.10 The Relevant Person has two siblings: a brother and a sister. Their commitment to the welfare of Mr. AB is without question and is reflected in the attendance of Mr AB’s brother at the full hearing of the matter in August, having travelled thousands of miles from a different continent to do so.

4.11 The Applicant commissioned Consultant Psychiatrist Dr. EF to assess the Relevant Person’s capacity to marry. Dr. EF concluded that the Relevant Person lacks capacity to consent to marriage.

4.12 A further assessment was undertaken by Consultant Psychiatrist Dr. GH, instructed by the Relevant Person’s legal representatives. Dr. GH reached the same conclusion.

5. High Court Order

5.1 The High Court in the wardship proceedings has already made the following declarations:

“vi) Pursuant to section 56(5) and section 55(1)(b)(ii) of the 2015 Act that even if a co-decision maker was appointed the respondent lacks capacity to make decisions on the following matters in respect of his personal welfare:

a) Healthcare

vii) Pursuant to section 56(5) and section 55(1)(b)(ii) of the 2015 Act that even if a co-decision maker was appointed the respondent lacks capacity to make decisions on the following matters in respect of his property and affairs:

a) the custody, control and management of his money, to include decisions in relation to monies held in trust for his benefit, or otherwise;

b) the gifting or other disposition of his money;

c) the discharge of his debts, tax and duty liabilities and obligations; and

d) making an application for housing, social welfare or other benefits or otherwise protecting or advancing the interests of the respondent in relation to those matters.”

5.2 The High Court appointed Mr. IJ (the Relevant Person’s brother) as a Decision-Making Representative (DMR) for the Relevant Person in the area of personal welfare to make decisions in the area of healthcare.

This was done pursuant to the provisions of section 55(5) and section 38 of the 2015 Act. An independent solicitor, Ms. KL, was also appointed pursuant to section 55(5) and section 38 of the 2015 Act as the DMR for the Relevant Person in the area of property and affairs to make decisions on a number of specific matters as set out in the above-mentioned Order of the High Court.

6. Ex-Parte Application

6.1 The Applicant sought and was granted by this Court permission under section 36(3) of the 2015 Act to make an application for a Declaration vis-a-vis the Relevant Person’s capacity to marry in accordance with Part 5 of the 2015 Act.

7. The Applicant’s Case

7.1 The Applicant seeks a declaration under section 37(1)(b) of the 2015 Act that the Relevant Person lacks capacity to consent to marriage, even with the assistance of a co-decision-maker. The application is confined to this specific decision and does not extend to other domains of personal welfare or property.

7.2 The Applicant acknowledges the significance of the right to marry, describing it as a constitutionally protected and fundamental right. However, it is submitted by the Applicant that this right, while fundamental, is not absolute and may be lawfully restricted where capacity is lacking. Such a restriction must be justified by clear evidence and applied in accordance with the statutory framework.

7.3 The Applicant relies on the psychiatric assessments of Dr. EF, a Consultant Psychiatrist, who conducted two assessments of the Relevant Person in November 2023 and December 2024. Dr. EF concluded that the Relevant Person does not meet the statutory threshold for capacity to marry. Her reports and oral evidence form the basis of the application. The Applicant also references the High Court’s prior declarations under section 55 of the 2015 Act, which found that the Relevant Person lacks capacity in respect of healthcare and financial matters, even with the assistance of a co-decision-maker.

7.4 The Applicant submits that the Relevant Person does not possess a sufficient understanding of the nature of the marriage contract, the legal status it confers, or the duties and responsibilities ordinarily associated with marriage. In particular, it is argued by the Applicant that the Relevant Person does not grasp, even in general terms, that marriage may have financial consequences, such as claims arising from divorce or entitlements in relation to property. Dr. EF found that, despite repeated efforts to explain these concepts in simplified language, the Relevant Person was unable to demonstrate understanding or to retain and weigh the information provided.

7.5 The Applicant further submits that the Relevant Person’s ability to give full, free, and informed consent is compromised by his limited understanding of the legal implications of marriage. While his emotional commitment to the Notice Party is not in dispute, the Applicant argues that emotional preference alone cannot satisfy the marriage test. Reference is made to the jurisprudence of England and Wales and in particular the judgment of Munby J. in Sheffield City Council v. E. [2004] EWHC 2808 (Fam), which emphasises that capacity to marry requires an understanding of the nature of the marriage contract and the responsibilities it entails.

7.6 In her closing submission, Counsel for the Applicant, Ms. Sarah McKechnie BL, stated:

“There is overwhelming medical evidence before the Court that [Mr. AB] doesn’t have capacity to marry. I think that [Dr. EF] fairly acknowledged that it was a conclusion she reached reluctantly, … and I think that probably echoes a sentiment of [the Applicant] that this is an application that’s being brought reluctantly”.

7.7 The Applicant also addressed the issue of supports and scaffolding. It is submitted by the Applicant that no further supports such as visual aids, role-play, or iterative sessions would have altered the outcome.

Dr. EF expressed the view that additional time or educational interventions would not have enhanced the Relevant Person’s understanding. The Applicant maintains that all practicable steps were taken to support the Relevant Person and that the statutory presumption of capacity has been rebutted.

7.8 It is submitted by the Applicant that the Relevant Person’s stated desire to marry may be influenced by external pressures, particularly from the Notice Party and her family, although this submission was not pressed to the same extent in the oral submissions. Dr. EF observed that the Relevant Person frequently referred to “what [Ms. CD] wants” and that his responses changed depending on the context, suggesting susceptibility to undue influence.

7.9 The Applicant also contends that, should a marriage proceed between the Relevant Person and the Notice Party, it would be void ab initio due to the absence of a valid consent. Reference is made to M.K.F.S.

(Pakistan) and A.F. and N.F.J. (An Infant Suing by and Through his Mother and Next Friend A.F.) v.

The Minister for Justice and Equality [2019] IESCDET 54 and other nullity cases, which establish that a marriage may be void where there is a lack of capacity or where consent is not freely and independently given.

7.10 In summary, the Applicant submits that:

a) The Relevant Person does not understand the nature of the marriage contract;

b) He does not understand the duties and responsibilities that normally attach to marriage, despite the low threshold of the understanding required;

c) He does not understand, even in the broadest sense, that divorce may bring about financial consequences;

d) His consent to the proposed marriage is not being exercised freely and independently;

e) The decision to marry has been caused by external pressure or influence to such an extent as to lose the character of a fully free exercise of the independent will of the parties.

7.11 The Applicant submits that the application is made with due regard to the Relevant Person’s rights, but also in accordance with the statutory obligation to ensure that marriage is entered into with informed consent. The Applicant submits that it has always supported the relationship between the Relevant Person and the Notice Party, but that the evidence before the Court necessitates intervention to protect the Relevant Person from entering into a marriage he does not fully understand.

8. The Relevant Person’s Case

8.1 The Relevant Person opposes the application on the basis that it seeks to interfere with a constitutionally protected right, the right to marry. It is submitted by the Relevant Person that the Court should exercise caution before making any order that would extinguish this right, especially in circumstances where the Relevant Person has clearly and consistently expressed a wish to marry the Notice Party. The same constitutional considerations are said to apply to the Notice Party, whose rights would also be affected by the outcome of these proceedings.

8.2 Counsel for the Relevant Person, Mr. Declan Higgins BL, emphasised that the proposed orders would have far-reaching consequences, not only for the Relevant Person but also for the Notice Party and their shared life. He submits that the decision represents a pivotal moment in the Relevant Person’s life, with practical implications for whether he may lawfully marry his partner of over two decades.

8.3 It is submitted by Counsel for the Relevant Person that the Relevant Person understands marriage to be a meaningful institution. He has expressed that “legal marriage means something,” and has drawn comparisons with his sister’s ability to marry, questioning why he is treated differently. The relationship between the Relevant Person and the Notice Party is described by Counsel for the Relevant Person as longstanding, affectionate, and mutually supportive. Moreover, he alludes to the celebration of their relationship that took place, and notes the Relevant Person refers to the Notice Party as his wife.

8.4 Counsel for the Relevant Person challenges the adequacy of the assessments relied upon by the Applicant.

He argues that the assessments apply a perfectionist standard, one which fails to reflect the low threshold of understanding required to consent to marriage under Irish law. Counsel for the Relevant Person submitted that many individuals enter marriage without a detailed appreciation of its legal or financial consequences, and that the law does not require such sophistication.

8.5 Concerns were raised by Counsel for the Relevant Person regarding the absence of evidence of structured supports during the assessment or the previous litigation. He stated that there is no evidence before the Court of sustained efforts to scaffold the Relevant Person’s understanding of marriage.

8.6 Counsel for the Relevant Person also expressed concerns about the use of terms such as “learned” or “rehearsed” responses in the expert evidence, suggesting that they had not been elaborated upon. He further noted that references to undue influence, which featured prominently in earlier proceedings, have not been substantiated in the current application and should not form part of the Court’s determination.

8.7 The Relevant Person’s case also relies on Articles 8 and 12 of the European Convention on Human Rights (“ECHR”), which protect the right to private and family life and the right to marry. It was submitted by Counsel for the Relevant Person that the effect of the declaration sought would be to extinguish a fundamental right and deny recognition to a relationship that has endured through adversity and time.

8.8 In summary, the Relevant Person urges the Court to reject the application and to affirm his right to marry the Notice Party, recognising the sincerity of his will and preference and the constitutional and Convention-based protections afforded to that right.

9. The Notice Party’s Case

9.1 The Notice Party opposes the application on the basis that the legal test for capacity to marry has not been properly formulated or applied, and that the medical evidence relied upon by the Applicant is procedurally flawed and fails to give effect to the statutory, constitutional, and Convention rights of the parties.

9.2 Counsel for the Notice Party, Ms. Emma Slattery BL, submitted that the assessments conducted by Dr.

EF and Dr. GH did not comply with the requirements of the 2015 Act or the Code of Practice issued by the Decision Support Service. In particular, she argued that the assessments failed to provide relevant information to the Relevant Person at the outset, did not employ all practicable supports, and were conducted in a manner that did not reflect a rights-based or person-centred approach.

9.3 It was submitted by Counsel for the Notice Party that the assessments relied on abstract and overly complex formulations of marriage, including references to duties and responsibilities, financial consequences, and property entitlements, without tailoring the information to the Relevant Person’s actual circumstances. She suggests that such an approach risks setting the threshold for capacity too high and may discriminate against persons with intellectual disabilities.

9.4 Counsel for the Notice Party identified six principal issues for the Court’s consideration:

a) The correct legal test for capacity to marry under Irish law;

b) Whether that test was properly applied in the assessments;

c) Whether the Relevant Person, on the evidence, has the capacity to marry;

d) The role of will and preference, and the obligation to support decision-making;

e) The constitutional and human rights implications of denying the parties the right to marry;

f) The appropriate relief in all the circumstances.

9.5 Counsel for the Notice Party submitted that the relationship between the parties is longstanding, exclusive, and emotionally committed. It was argued by Counsel for the Notice Party that the assessments failed to account for the depth and resilience of the relationship, and that the Court must be cautious not to substitute a clinical snapshot for a holistic understanding of the parties’ lived experience.

9.6 Counsel for the Notice Party further submitted that the Applicant had failed to discharge the burden of proof that the Relevant Person lacks capacity to consent to marriage, and that the Court must be satisfied not only that the Relevant Person lacks capacity, but that all practicable steps to support his decisionmaking have been exhausted. She argued that the failure to provide iterative, educative, and tailored supports during the period since the commencement of the litigation undermines the reliability of the assessments.

9.7 In summary, Counsel for the Notice Party urged the Court to dismiss the application, asserting that the orders sought would constitute a disproportionate and unnecessary interference with the parties’ fundamental rights. She submitted that the law requires a low-threshold, person-specific test, and that the evidence does not support a finding of incapacity.

10. The Assisted Decision-Making (Capacity) Act 2015

10.1 The 2015 Act commenced on 26 April 2023. It was amended by the Assisted Decision-Making (Capacity) (Amendment) Act 2022, which was signed by the President on 17 December 2022. The overall objective of the 2015 Act is to put in place a modern legislative framework to support those with capacity difficulties and which complies with the UN Convention on the Rights of Persons with Disabilities (UNCRPD). It is a reforming piece of legislation which abolishes the previous Ward of Court system provided for by the Lunacy Regulation (Ireland) Act 1871. The 2015 Act is a departure from the Ward of Court system, which took a paternalistic approach to capacity issues and seeks to introduce a more flexible approach, looking at each decision at a point in time and assuming that the person has the capacity to make that decision. Where persons are unable to make decisions on their own, the 2015 Act provides for the appointment of decision-makers (on a graduated scale, in accordance with the level of need), who can help such a person to do so. At all times, where possible, the person’s will and preferences must be considered. In the intersection with Family Law which occurs in this case, important changes have been introduced by the repealing of the Marriage of Lunatics Act 1811. The 2015 Act introduces a framework that addresses the capacity of individuals to consent to marriage. More specifically, it sets out a capacity requirement, stipulating that one, or both parties, to a proposed marriage must have the capacity to consent to the marriage. In the event that either party lacks capacity, an objection can be raised to the marriage.

10.2 Section 4 of the 2015 Act vests exclusive jurisdiction under this Act to the Circuit Court, save and except for certain matters vested in the High Court. It provides:

“4. (1) Subject to subsection (3) the Circuit Court shall have exclusive jurisdiction under this Act and the performance of the functions of that court conferred by this section shall be within the jurisdiction of the circuit of the Circuit Court and such jurisdiction shall be exercised by the circuit of the Circuit Court in which the following persons are residing or carrying on business at the time the application or appeal concerned is made, or have resided at any time during the period of 3 years immediately prior to the making of the application or the lodging of the appeal concerned:

(a) the Relevant Person (including a ward) the subject of an application under this Act;

(b) in the case of proceedings under section 15, the decision-making assistant appointer, whose decision-making assistant or decision-making assistance agreement is the subject of an application or appeal under that section;

(c) in the case of proceedings under Part 4, the co-decision-maker appointer, whose co-

decision-maker or co-decision-making agreement is the subject of an application or appeal under that Part;

(d) in the case of proceedings under section 46 or 47, the relevant person, whose decisionmaking representative is the subject of an application or appeal under the section concerned;

(e) in the case of proceedings under Part 7—

(i) the donor, whose attorney, enduring power of attorney or instrument creating an enduring power of attorney, or

(ii) the donor under the Act of 1996, whose attorney under the Act of 1996, enduring power under the Act of 1996 or instrument creating an enduring power under the Act of 1996, is the subject of an application or appeal under that Part;

(f) in the case of proceedings under section 88 or 89, the directive-maker, whose designated healthcare representative is the subject of an application under the section concerned;

(g) in the case of proceedings under section 125 or 127, the adult the subject of the measure that is the subject of an application under the section concerned.”

10.3 In summary, the 2015 Act represents a paradigm shift in Irish law, moving from a status-based to a functional, decision-specific, and time-specific approach to capacity. Section 3 of the 2015 Act is of particular relevance to the present case and provides that a person lacks capacity unless he or she is able to:

a) Understand the information relevant to the decision;

b) Retain that information long enough to make a voluntary choice;

c) Use or weigh that information as part of the process of making the decision;

d) Communicate his or her decision (whether by talking, using sign language, or any other means).

11. Guiding Principles

11.1 Section 8 of the 2015 Act is another important provision relevant to this case. It sets out nine guiding principles for anyone interacting with a person who has difficulties with their decision-making capacity.

The section merits being cited in full. It provides:

“8. (1) The principles set out in subsections (2) to (10) shall apply for the purposes of an intervention in respect of a relevant person, and the intervener shall give effect to those principles accordingly.

(2) It shall be presumed that a Relevant Person who falls within paragraph (a) of the definition of “relevant person” in section 2(1) has capacity in respect of the matter concerned unless the contrary is shown in accordance with the provisions of this Act.

(3) A relevant person who falls within paragraph (a) of the definition of “relevant person”

in section 2(1) shall not be considered as unable to make a decision in respect of the matter concerned unless all practicable steps have been taken, without success, to help him or her to do so.

(4) A relevant person who falls within paragraph (a) of the definition of “relevant person”

in section 2(1) shall not be considered as unable to make a decision in respect of the matter concerned merely by reason of making, having made, or being likely to make, an unwise decision.

(5) There shall be no intervention in respect of a relevant person unless it is necessary to do so having regard to the individual circumstances of the relevant person.

(6) An intervention in respect of a relevant person shall—

(a) be made in a manner that minimises—

(i) the restriction of the relevant person’s rights, and

(ii) the restriction of the relevant person’s freedom of action,

(b) have due regard to the need to respect the right of the relevant person to dignity, bodily integrity, privacy, autonomy and control over his or her financial affairs and property,

(c) be proportionate to the significance and urgency of the matter the subject of the intervention, and

(d) be as limited in duration in so far as is practicable after taking into account the particular circumstances of the matter the subject of the intervention.

(7) The intervener, in making an intervention in respect of a relevant person, shall—

(a) permit, encourage and facilitate, in so far as is practicable, the relevant person to participate, or to improve his or her ability to participate, as fully as possible, in the intervention,

(b) give effect, in so far as is practicable, to the past and present will and preferences of the relevant person, in so far as that will and those preferences are reasonably ascertainable,

(c) take into account—

(i) the beliefs and values of the relevant person (in particular those expressed in writing), in so far as those beliefs and values are reasonably ascertainable, and

(ii) any other factors which the relevant person would be likely to consider if he or she were able to do so, in so far as those other factors are reasonably ascertainable,

(d) unless the intervener reasonably considers that it is not appropriate or practicable to do so, consider the views of—

(i) any person named by the relevant person as a person to be consulted on the matter concerned or any similar [matter,] [(ii) any decision-making assistant, co-decision-maker, decision-making representative, attorney or attorney under the Act of 1996 for the relevant person,] [(iv) a designated healthcare representative within the meaning of Part 8 for the relevant person, where the intervention relates to treatment and an advance healthcare directive within the meaning of Part 8 is applicable,]

(e) act at all times in good faith and for the benefit of the relevant person, and

(f) consider all other circumstances of which he or she is aware and which it would be reasonable to regard as relevant.

(8) The intervener, in making an intervention in respect of a relevant person, may consider the views of—

(a) any person engaged in caring for the relevant person,

(b) any person who has a bona fide interest in the welfare of the relevant person, or

(c) healthcare professionals.

(9) In the case of an intervention in respect of a person who lacks capacity, regard shall be had to—

(a) the likelihood of the recovery of the relevant person’s capacity in respect of the matter concerned, and

(b) the urgency of making the intervention prior to such recovery.

(10) The intervener, in making an intervention in respect of a relevant person—

(a) shall not attempt to obtain relevant information that is not reasonably required for making a relevant decision,

(b) shall not use relevant information for a purpose other than in relation to a relevant

decision, and

(c) shall take reasonable steps to ensure that relevant information—

(i) is kept secure from unauthorised access, use or disclosure, and

(ii) is safely disposed of when he or she believes it is no longer required.”

12. Interaction between the Assisted Decision-Making (Capacity) Act 2015 and Marriage

12.1 The 2015 Act introduced a significant shift in the legal treatment of capacity in Ireland, including its application to marriage. While section 138 of the 2015 Act preserves the existing legal framework governing capacity in family law matters including marriage, civil partnership, and guardianship, the 2015 Act repeals the Marriage of Lunatics Act 1811, which had previously rendered void any marriage involving a person found to be of unsound mind or made a Ward of Court.

12.2 In place of the former statutory bar, the 2015 Act establishes a mechanism whereby objections to a proposed marriage on the grounds of capacity must be supported by a declaration from the Circuit Court.

Section 143 of the 2015 Act amends the 2004 Act to provide that a lack of capacity, as defined under the 2015 Act, constitutes a valid ground for objection. Specifically, section 58(11) of the 2004 Act, as substituted, requires that such objections be accompanied by a declaration under section 37 of the 2015 Act confirming that one or both parties lack the capacity to consent to marriage or to make decisions within a relevant class of decisions.

12.3 This legislative reform reflects a broader policy shift: from categorical exclusion based on status to a functional, case-specific assessment of capacity. The repeal of the 1811 Act and the amendments to the 2004 Act are intended to promote autonomy while ensuring that marriage is entered into with informed consent.

12.4 The effect of these provisions is to create a statutory impediment to marriage where a declaration of incapacity has been made, replacing the previous blanket prohibition. The Court’s role under this framework is to determine, on the basis of the evidence, whether such a declaration is warranted. In doing so, the Court must balance the protection of vulnerable individuals with the constitutional and Convention-based rights to marry and to private and family life.

13. Marriage

13.1 Marriage is a foundational institution, recognised across cultures and legal systems. It is more than a contract; it is the creation of a distinct legal status and a relationship of deep personal and legal significance. As Costello J. observed in Murray v. Ireland [1985] I.L.R.M. 542, it marks the beginning of “a unique and very special lifelong relationship”, from which flow a range of rights, duties, and obligations. (See also Sottomayer v. de Barros (1879) 5 P.D. 94 and N. (orse. K.) v. K. [1985] I.R. 733.)

13.2 The symbolic and cultural weight of marriage remains considerable. It is often viewed as a social ideal, representing permanence, commitment, and shared life. As O’Donovan notes, marriage evokes “a shared tradition, and on an eternal future” (Family Law Matters, 1993, p. 47). Alastair Nicholson J., former Chief Justice of the Family Court of Australia, similarly remarked that marriage carries a meaning “powerfully infused with tradition, history and religion”, often more so than the concept of family itself.

13.3 While historically defined in Hyde v. Hyde and Woodmansee [(1866) L.R. 1 P. & D. 130] as “the voluntary union for life of one man and one woman to the exclusion of all others”, the legal understanding of marriage in this jurisdiction has evolved. Since the introduction of divorce in 1997, civil marriage is no longer necessarily for life. Indeed, the subsequent adoption of the Thirty-Fourth Amendment to the Constitution extends the right to marry to same sex couples.

13.4 Marriage holds a privileged place in the Irish constitutional framework. Article 41.3.1° of the Constitution pledges the State to “guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.” The Constitution recognises the family based on marriage as the primary unit group of society and affords it particular protection.

13.5 The right to marry is also recognised in international and comparative jurisprudence. In Loving v.

Virginia [388 U.S. 1 (1967)], the U.S. Supreme Court struck down a ban on interracial marriage, affirming that the right to marry is constitutionally protected. This principle underpins the present case and informs the Court’s approach to the legal and constitutional dimensions of marital capacity.

14. Public Interest and Marriage

14.1 The institution of marriage occupies a unique position in both legal and societal frameworks. It is not merely a private arrangement between individuals but a status that carries with it a constellation of legal rights, duties, and social recognitions. The public interest in marriage is therefore multifaceted: it encompasses the protection of vulnerable individuals, the promotion of autonomy, and the safeguarding of a foundational social institution.

14.2 In considering the public interest, the Court must be vigilant not to impose a threshold for capacity that is so exacting as to exclude individuals with intellectual disabilities from the right to marry. The law must strike a careful balance, protecting those who may not comprehend the nature of the marital commitment, while ensuring that the test for capacity does not become a discriminatory barrier to the exercise of a fundamental right.

14.3 The jurisprudence of England and Wales, particularly Sheffield City Council v. E. [2004] EWHC 2808 (Fam), has emphasised that the test for capacity to marry is intentionally low. It requires only a rudimentary understanding of the nature of the marriage contract and the responsibilities it entails. This approach reflects a public policy imperative: that individuals of limited or borderline capacity should not be unfairly excluded from the enriching experience of marriage, provided they possess the requisite understanding.

14.4 In the Irish context, as stated above, this principle is reinforced by the constitutional protection afforded to marriage under Article 41.3.1° of the Constitution, which pledges the State to guard the institution of marriage with special care. The 2015 Act further supports this approach by mandating a functional,

decision-specific assessment of capacity, and by requiring that all practicable steps be taken to support the individual in making the decision.

14.5 The public interest is not served by a blanket exclusion of persons with cognitive impairments from marriage. Rather, it is served by a legal framework that ensures informed consent, respects autonomy, and promotes inclusion. The Court must therefore ensure that its application of the statutory test does not inadvertently operate as a barrier to the exercise of a constitutionally protected right.

15. The Right to Marry

15.1 The right to marry is a deeply rooted constitutional and human right, recognised both in Irish law and under the ECHR. This principle was affirmed by Hogan J. in McHugh and Another v. The Minister for Justice and Equality ([2012] IEHC 110), where he stated:

“There is no question but that the right to marry is a core constitutional right: see, e.g., the comments of Kenny J. in Ryan v. Attorney General [1965] I.R. 294, 313 and those of Laffoy J.

in O’Shea v. Ireland [2006] IEHC 305, [2007] 2 I.R. 313 at 323–326.”

15.2 While Kenny J. described this right as an unenumerated personal right protected under Article 40.3.1° of the Irish Constitution, it is also inherent in Article 41.3.1°, which states:

“The State pledges itself to guard with special care the institution of Marriage on which the Family is founded, and to protect it against attack.”

15.3 That said, Hogan J. also noted that:

“Even though the right to marry is fundamental, as Laffoy J. noted in O’Shea, this does not mean that the Oireachtas cannot impose restrictions upon those rights, provided, of course, that these restrictions are objectively justifiable, proportionate and respect the essence of the right…”.

15.4 Irish jurisprudence has long held that the right to marry requires the full, free, and informed consent of the individual. In N. (Orse. K.) v. K. ([1985] I.R. 733), which was cited in her written submissions by Ms. Sarah McKechnie BL on behalf of the Applicant, Finlay C.J. stated:

“The entry into a valid marriage is not only the making of a contract but is also in law the acquisition of a status. The status thus acquired and the related concept of a family receives special protection from the provisions of the Constitution… Consent to the taking of such a step must, therefore, if the marriage is to be valid, be a fully free exercise of the independent will of the parties.”

15.5 Barrington J. in J. v. J. ([1982] I.L.R.M. 263) further observed:

“It is impossible to imagine any form of meaningful marriage where one of the parties lacks the capacity of entering into a caring or even a considerate relationship with the other.”

15.6 These principles have been affirmed in earlier case law, such as B. (Otherwise A.) v. B. ([1891] 27 L.R.

I.R. 587), and underscore the requirement that any limitation on the right to marry must be both objectively justified and proportionate.

15.7 The European Court of Human Rights has also addressed the scope of permissible limitations on the right to marry, including in B. and L. v. United Kingdom ([2005] ECHR (Application number 36536/02)

13 September 2005), where the Court considered the compatibility of domestic restrictions with Article

12 of the ECHR.

16. Capacity Test

16.1 The central issue in this case is the test for capacity to marry under Irish law. This is a matter of significant

legal and social importance, engaging fundamental constitutional and human rights, including the right to marry and the right to autonomy. While the law in this area has evolved through case law, statutory reform, and international human rights standards, the Irish courts have not yet articulated a definitive test for capacity to marry. This absence presents a challenge for the Court in determining the present application.

16.2 Section 3 of the 2015 Act, as previously stated, is particularly relevant to this case and provides the statutory basis for assessing capacity. It mandates a functional approach, requiring that capacity be evaluated in relation to the specific decision at the time it is to be made. The section provides:

“3.— (1) Subject to subsections (2) to (6) for the purposes of this Act, a person’s capacity shall be assessed 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.

(2) A person lacks the capacity to make a decision if he or she is unable—

(a) to understand the information relevant to the decision,

(b) to retain that information long enough to make a voluntary choice,

(c) to use or weigh that information as part of the process of making the

decision, or

(d) to communicate his or her decision (whether by talking, writing, using sign language, assistive technology, or any other means) or, if the implementation of the decision requires the act of a third party, to communicate by any means with that third party.”

16.3 The presumption of capacity is central to the statutory scheme. Section 8 of the 2015 Act, outlined earlier in this judgment, requires that all practicable steps be taken to support the person in making the decision before a finding of incapacity is reached, and that the person’s will and preference be given effect to, insofar as practicable.

16.4 Irish case law has long recognised that capacity is decision-specific. In Nolan v. Carrick [2013] IEHC 523, which was opened to the Court by Ms. Sarah McKechnie BL on behalf of the Applicant, Dunne J.

adopted the principle that the requisite capacity is that which relates to the transaction in question, and that the person must be able to understand the nature of that transaction when explained in a manner appropriate to their circumstances.

16.5 In the context of marriage, the relevant question is whether the person understands the nature of the marriage contract and the mutual rights and obligations it entails. As affirmed by the Court of Appeal in footnote one in S. Ltd v. A. & F. [2020] IECA 225, citing Sheffield City Council v. E. [2004] EWHC 2808 (Fam), the test for capacity to marry is distinct from, and generally less exacting than, the test for managing property or conducting litigation.

16.6 English jurisprudence has emphasised that the test for capacity to marry is status-specific and not personspecific. Munby J. in Sheffield City Council v. E. [2004] EWHC 2808 (Fam) stated:

“In relation to her marriage the only question for the court is whether E has capacity to marry.

The court has no jurisdiction to consider whether it is in E’s best interests to marry or to marry S.”

16.7 In M. v. B., A. and S. (By the Official Solicitor) [2006] 1 F.L.R. 117, Sumner J. cited Parker J. in London Borough of Southwark v. K.A. ([2016] EWCOP 20), who provided the following guidance:

“76. The test for capacity to marry is also a simple one:

a. Marriage is status specific not person specific.

b. The wisdom of the marriage is irrelevant.

c. P must understand the broad nature of the marriage contract.

d. P must understand the duties and responsibilities that normally attach to marriage, including that there may be financial consequences and that spouses have a particular status and connection with regard to each other.

e. The essence of marriage is for two people to live together and to love one another.

f. P must not lack capacity to enter into sexual relations.

77. The decision is about capacity and not welfare. Thus, I do not take into account aspects of his

decision making which affect the consequence of his decision making, so long as they do not affect the decision-making process in itself.”

16.8 It is submitted by the Relevant Person and Notice Party that were the Court to make the Orders sought by the Applicant, this would represent a disproportionate and arguably unnecessary imposition into the fundamental rights of the Relevant Person, and, by extension, the Notice Party.

16.9 The assessment of capacity is ultimately a legal determination. While medical and psychiatric evidence may be necessary, the Court must evaluate whether the statutory criteria have been met, having regard to the individual’s circumstances, the supports provided, and the nature of the decision in question.

17. Marriage Test

17.1 As Collins J. observed in S. Ltd. v. A. & F. [2020] IECA 225, “the right to marry is a fundamental right in our Constitutional order: Zappone v Revenue Commissioners [2006] IEHC 404, [2008] 2 I.R. 417.”

The subsequent adoption of the Thirty-Fourth Amendment to the Constitution, extending the right to marry to same sex couples, underscores the constitutional significance of this right. The right to marry is also expressly protected under Article 12 of the ECHR, as alluded to by Mr. Declan Higgins BL on behalf of the Relevant Person in both his oral and written submissions.

17.2 While the present application does not concern a decree of nullity, the Court is of the view that jurisprudence in that domain remains instructive. Irish case law has long recognised that capacity to marry requires more than mere formal compliance; it demands an understanding of the nature and consequences of the marital commitment.

17.3 The above-mentioned decision of Munby J. in Sheffield City Council v. E. [2004] EWHC 2808 (Fam), cited by all parties, offers a compelling articulation of the public interest underpinning the institution of marriage:

“143 There is in fact, as it seems to me, an important public interest—an important element of public policy—lurking behind the questions I have been considering. Marriage creates a status from which certain legal rights and duties automatically stem… Marriage also carries with it… a wide range of legal, social and fiscal advantages… even in this day and age… there are still many respects in which the children of the married enjoy benefits and advantages denied to the children of the unmarried.

144 There are many people in our society who may be of limited or borderline capacity but whose lives are immensely enriched by marriage. We must be careful not to set the test of capacity to marry too high, lest it operate as an unfair, unnecessary and indeed discriminatory bar against the mentally disabled.

145 Equally, we must be careful not to impose so stringent a test of capacity to marry that it becomes too easy to challenge the validity of what appear on the surface to be regular and seemingly valid marriages.”

17.4 The legal framework requires that any restriction on the right to marry be justified, proportionate, and based on clear evidence of incapacity. This principle is affirmed in both S. Ltd. v. A. & F. [2020] IECA

225 and Zappone v. Revenue Commissioners [2006] IEHC 404.

17.5 The threshold for capacity to marry is not unduly onerous. The Relevant Person must understand that marriage is a lifelong legal relationship that alters their civil status. This understanding must be sufficient to appreciate the nature of the commitment, rather than its specific consequences.

17.6 Drawing from existing jurisprudence, the following elements appear to the Court to be material in assessing capacity to marry:

i. That marriage is a lifelong legal relationship that changes the parties’ status from single to married;

ii. That as a married person, one assumes duties and responsibilities to love, care for, comfort, and assist their spouse;

iii. That the dissolution of marriage may entail financial consequences.

17.7 In BU, Re [2021] EWCOP 54, a decision of the Court of Protection in England and Wales, it was reaffirmed that the legal threshold for capacity to marry is intentionally low and uncomplicated. The emphasis lies on the individual’s ability to grasp the general nature of the marriage contract and the attendant responsibilities.

17.8 More recently, in ZZ (Capacity), Re [2024] EWCOP 21, also a judgment of the Court of Protection, the court reiterated that the test for capacity to marry is status-specific. The individual’s understanding of the implications of entering into the marital status is the sole focus; considerations of whether the marriage is wise or advisable are immaterial to the assessment.

18. UK Cases

18.1 The legal framework governing capacity to marry in England and Wales is primarily set out in the Mental Capacity Act 2005 (“MCA 2005”). Sections 2 and 3 of the MCA 2005 establish a functional test for

decision-making capacity, requiring that a person must be able to understand, retain, use or weigh relevant information, and communicate their decision. This test is status-specific, not person-specific, and is applied to the decision to marry without regard to the identity of the intended spouse.

18.2 The leading authority on marital capacity in England and Wales remains Sheffield City Council v. E.

[2004] EWHC 2808 (Fam), where Munby J. held that the relevant inquiry is whether the individual understands the nature of the marriage contract and the duties and responsibilities that normally attach to marriage. He stated: “The contract of marriage is in essence a simple one, which does not require a high degree of intelligence to comprehend.” The judgment emphasised that the wisdom of the marriage is irrelevant and that the court has no jurisdiction to assess whether the marriage is in the individual’s best interests.

The Court gave some useful guidance when approaching the issue:

“(i) The question is not whether E has capacity to marry X rather than Y. The question is not (being specific) whether E has capacity to marry S. The relevant question is whether E has capacity to marry. If she does, it is not necessary to show that she also has capacity to take care of her own person and property.

(ii) The question of whether E has capacity to marry is quite distinct from the question of whether E is wise to marry: either wise to marry at all, or wise to marry X rather than Y, or wise to marry S.

(iii) In relation to her marriage the only question for the court is whether E has capacity to marry. The Court has no jurisdiction to consider whether it is in E’s best interests to marry or to marry S. The court is concerned with E’s capacity to marry. It is not concerned with the wisdom of her marriage in general or her marriage to S in particular.

(iv) In relation to the question of whether E has capacity to marry the law remains today as it was set out by Singleton LJ in In the Estate of Park deceased, Park v. Park [1954] p 112 at p 127:

“Was the deceased ... capable of understanding the nature of the contract into which he was entering, or was his mental condition such that he was incapable of understanding it? To ascertain the nature of the contract of marriage a man must be mentally capable of appreciating that it involves the responsibilities normally attaching to marriage. Without that degree of mentality, it cannot be said that he understands the nature of the contract.”

(v) More specifically, it is not enough that someone appreciates that he or she is taking part in a marriage ceremony or understand its words.

(vi) He or she must understand the nature of the marriage contract.

(vii) This means that he or she must be mentally capable of understanding the duties and responsibilities that normally attach to marriage.

(viii) That said, the contract of marriage is in essence a simple one, which does not require a high degree of intelligence to comprehend. The contract of marriage can readily be understood by anyone of normal intelligence.

(ix) There are thus, in essence, two aspects to the inquiry whether someone has capacity to marry. (1) Does he or she understand the nature of the marriage contract? (2) Does he or she understand the duties and responsibilities that normally attach to marriage.

(x) The duties and responsibilities that normally attach to marriage can be summarised as follows: Marriage, whether civil or religious, is a contract, formally entered into. It confers on the parties the status of husband and wife, the essence of the contract being an agreement between a man and a woman to live together, and to love one another as husband and wife, to the exclusion of all others. It creates a relationship of mutual and reciprocal obligations, typically involving the sharing of a common home and a common domestic life and the right to enjoy each other’s society, comfort and assistance.”

18.3 In Re Park’s Estate, Park v. Park [1954] 3 W.L.R. 89, referenced above at paragraph 18.2, the court held that the test is whether the person is “capable of understanding the nature of the contract into which he was entering”. This principle has been consistently reaffirmed, including in Mundell v Name 1 [2019] EWCOP 50, where the court reiterated that the level of understanding required is “rudimentary” and that the assessment must not be overly complex or discriminatory.

18.4 Further guidance was provided in London Borough of Southwark v. K.A. [2016] EWCOP 20, referenced above at paragraph 16.7, where Parker J. summarised the test as follows:

i) The person must understand the broad nature of the marriage contract, the duties and responsibilities that normally attach to marriage, including financial consequences, and the particular legal status conferred by marriage.

ii) The person must not lack capacity to enter into sexual relations.

iii) The court cautioned against setting the bar too high, noting that doing so could unfairly exclude individuals with cognitive impairments from exercising their right to marry.

18.5 The Irish courts have acknowledged the relevance of this jurisprudence. In S. Ltd. v. A. & F. [2020] IECA 225, Collins J. at footnote one of his judgment, cited Sheffield City Council v. E. [2004] EWHC 2808 (Fam) and X. City Council v. M.B. [2006] EWHC 168 (Fam), noting that capacity to marry involves understanding the nature of the marriage contract and the mutual duties and responsibilities of marriage.

18.6 From the foregoing authorities, the legal test for capacity to marry in England and Wales may be distilled as follows:

1. Understanding the Nature of the Marriage Contract

The individual must comprehend that marriage is a legally binding union which alters the legal status of the parties. It is insufficient to merely recognise that a ceremony is taking place; the person must appreciate that they are entering into a formal legal relationship.

2. Awareness of Duties and Responsibilities

The individual must understand that marriage entails mutual obligations, including support, companionship, and the sharing of a domestic life. These duties need not be understood in detail;

a rudimentary appreciation suffices.

3. Recognition of Legal and Financial Consequences

The person must be aware that marriage may have financial implications, including rights and obligations arising on separation or death. The requirement is not to understand the full legal architecture, but to grasp that such consequences may exist.

4. Ability to give Full, Free, and Informed Consent

The individual must be capable of making the decision freely, without coercion or undue influence, and with sufficient understanding of its implications.

5. Functional Capacity Assessment

The assessment must be conducted in accordance with the MCA 2005, ensuring that all practicable steps are taken to support the individual in making the decision, and that relevant information is provided in a manner suited to their needs.

18.7 This test is status-specific, not person-specific. It does not require the individual to understand the implications of marrying a particular person, nor does it involve a best interests determination. The court’s role is confined to assessing capacity, not the advisability of the marriage.

19. European Convention on Human Rights

19.1 This application has implications for the Relevant Person’s rights under Article 8 and Article 12 of the ECHR. Article 8, ECHR provides as follows:

“8. 1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Article 12, ECHR states:

“12. Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.”

19.2 The European Court of Human Rights in Goodwin v. United Kingdom [(Application Number 28957/95), 11th of July 2002] stated:

“98. Reviewing the situation in 2002, the Court observes that Article 12 secures the fundamental right of a man and woman to marry and to found a family. The second aspect is not however a condition of the first and the inability of any couple to conceive or parent a child cannot be regarded as per se removing their right to enjoy the first limb of this provision.

99. The exercise of the right to marry gives rise to social, personal and legal consequences.

It is subject to the national laws of the Contracting States but the limitations thereby introduced must not restrict or reduce the right in such a way or to such an extent that the very essence of the right is impaired (see the Rees judgment, p. 19, § 50; the F. v.

Switzerland judgment of 18 December 1987, Series A no. 128, § 32).”

20. Irish Test

20.1 At present, there is no definitive test articulated by the Irish courts for assessing capacity to marry.

While Irish jurisprudence has addressed the issue in the context of nullity, these cases have not crystallized into a clear, standalone test applicable in broader contexts. This absence presents both a challenge and an opportunity for the Court.

20.2 In considering whether to adopt elements of the English approach, it is submitted that any such test must remain accessible and grounded in the constitutional framework. The threshold should not be set so high as to exclude individuals whose understanding, while limited, is sufficient to grasp the essential nature of the marital commitment. The understanding required must be basic and rudimentary.

20.3 It is a fundamental requirement of fair procedures that any legal test, particularly one that may restrict the exercise of a constitutional right, be clear and predictable. Individuals seeking to marry, and those tasked with assessing their capacity, must be able to identify with reasonable certainty the information that must be understood. Ambiguity in this regard risks arbitrary or inconsistent application.

20.4 Furthermore, the Court must remain mindful of the broader implications of its findings. A determination that the Relevant Person lacks capacity to marry would not only interfere with his constitutional rights under Article 41 of the Constitution but may also indirectly affect the rights of the Notice Party. The gravity of such interference necessitates a cautious and proportionate approach.

20.5 In light of the constitutional significance of marriage and the statutory framework under the 2015 Act, the Court proposes the following four-pronged test for assessing capacity to marry:

1. Understand the Nature of Marriage

The individual must grasp that marriage is a legally binding union that alters their civil status and creates a lifelong commitment between two people.

2. Appreciate the Duties and Responsibilities

The person must have a basic understanding that marriage entails mutual obligations, such as emotional support, companionship, and shared decision-making, even if they cannot articulate these in legal or financial terms.

3. Recognise the Potential Consequences

The individual must be aware, in general terms, that marriage may have legal and financial implications, including rights and responsibilities that arise upon separation or death. A rudimentary appreciation suffices.

4. Give Full, Free, and Informed Consent

The decision to marry must be made voluntarily, without coercion or undue influence, and with sufficient understanding of what the commitment entails.

20.6 This test reflects a low threshold and is designed to safeguard autonomy while ensuring informed consent. It is functional, decision-specific, and time-specific, and must be applied with all practicable supports tailored to the individual’s communication needs.

20.7 This test does not require a sophisticated understanding of matrimonial law, nor does it permit exclusion based on intellectual disability alone. The threshold is intentionally low, reflecting the principle that the right to marry is a fundamental constitutional right and must not be restricted unless clearly justified.

21. Supports

21.1 The 2015 Act places a statutory obligation on all interveners to take all practicable steps to support a relevant person in making a decision before concluding that they lack capacity. Section 8(3) of the 2015 Act provides:

“A relevant person … shall not be considered as unable to make a decision in respect of the matter concerned unless all practicable steps have been taken, without success, to help him or her to do so.”

21.2 This principle is central to the rights-based framework introduced by the 2015 Act. It reflects a shift away from status-based incapacity and towards a functional, time-specific approach that prioritises autonomy and participation. The obligation to provide support is not discretionary; it is a precondition to any lawful finding of incapacity.

21.3 Counsel for the Notice Party, Ms. Emma Slattery BL, referred the Court to the Decision Support Service Code of Practice for Supporting Decision-Making and Assessing Capacity (March 2023) (hereinafter “the Code”), which elaborates on the nature and scope of the supports required. Section 6.1.1 of the Code states:

“All information relevant to the decision must be provided to the relevant person at the beginning or prior to the assessment. The relevant person must be given all the relevant information and options so that their capacity to understand this information can be accurately assessed.”

21.4 This provision underscores the importance of timing and transparency in the assessment process.

Information must be provided in advance or at the outset, not incrementally or reactively, so that the person has a fair opportunity to engage with the decision in a meaningful way.

21.5 Section 3.1.1 of the Code further requires assessors to identify and respond to the specific challenges faced by the relevant person. It provides:

“Understanding the specific challenges for a relevant person will help you to provide them with more targeted support. You should consider what can be done to reduce or address challenges, for example, using memory prompts such as visual aids may help the relevant person to retain information.”

21.6 This guidance reflects the principle that supports must be tailored to the individual’s communication needs and cognitive profile. Generic assessments are insufficient. The process must be iterative, educative, and responsive to the person’s evolving understanding.

21.7 Section 3.2.1 of the Code sets out the minimum standards for information provision during the assessment.

It requires that assessors:

a) Use examples relevant to the decision or tell a story to explain the decision;

b) Present options and choices in a balanced way;

c) Set out the risks and benefits of each option;

d) Describe foreseeable consequences, including the consequence of making no decision.

21.8 The Code also mandates neutrality in the presentation of information, ensuring that the relevant person is not unduly influenced or pressured in the decision-making process.

21.9 Taken together, these provisions establish a clear legal and procedural framework for supporting

decision-making. The Court must be satisfied that these supports were not only considered but actively implemented before any finding of incapacity can be made. In the present case, the adequacy of the supports provided to the Relevant Person is a matter of central importance and is addressed further in the Court’s findings.

21.10 Role-play was a support which received scrutiny during the course of the evidence in this case. While not explicitly referenced in the Code, role-play is implied as a suitable support under several provisions.

Section 3.1.1 of the Code encourages the use of targeted supports tailored to the relevant person’s specific challenges in the decision-making process, such as a difficulty understanding or retaining information.

Moreover, section 3.2.1 recommends the use of examples or storytelling to explain decisions, which aligns with the principles of role-play as an experiential learning tool. These provisions collectively support the use of role-play as a method to scaffold understanding, particularly where abstract concepts such as the legal implications of marriage may be difficult to grasp.

21.11 In the present case, Dr. EF acknowledged in her oral evidence that role-play could have been an appropriate form of educational scaffolding to support the Relevant Person’s understanding of marriage.

While not employed during the assessments, the Court notes that role-play remains a recognised and practicable support within the framework of the Code and should be considered where appropriate, particularly in cases involving complex or abstract decisions.

22. Weight given to Expert Reports

22.1 In the instant case, expert reports were furnished by Dr. EF and Dr. GH.

22.2 The approach to evaluating expert evidence has been considered in several authorities. In J.McD. v. L.

[2010] 2 I.R. 199, the Supreme Court acknowledged that a court may properly accord significant weight to a report prepared under section 47 of the Family Law Act 1995, particularly where the report is thorough and authored by a reputable expert. However, the Court cautioned against adopting a rigid principle that such reports may only be departed from “for grave reasons.” As stated at paragraph 332:

“The court should not preclude itself from disagreeing with a report, where a persuasive contrary view is available in the evidence … This is a civil matter, where disputed matters of fact are determined on the balance of probabilities.”

22.3 This principle was echoed in Re W. (Residence) [1999] 2 F.L.R. 390, where the trial judge was criticised for failing to provide reasons for departing from the recommendations of a child welfare officer, in circumstances where no contrary report was available.

22.4 More recently, in C.D. v. B.B. [2023] IEHC 204, Stack J. stated:

“Uncontroverted expert opinion does not have to be accepted by a court.”

22.5 Her judgment further emphasised that a report asserting a lack of capacity to continue proceedings must be subject to detailed judicial consideration, citing the reasoning of Charleton J. in Flynn v. Bus Éireann [2012] IEHC 398.

At paragraph 9 of that judgment, Charleton J. articulated the foundational principle governing expert evidence is that experts:

“are entitled to express an opinion. In doing so, their entitlement is predicated upon also informing the court of the factors which make up their opinion and supplying to the court the elements of knowledge which their long study and experience has furnished to them whereby they have formed that opinion so that, in those circumstances, the court may be enabled to take a different view.”

This passage underscores that expert evidence must be both transparent and reasoned, enabling the court to critically assess its reliability and, where appropriate, to reach a different conclusion.

23. Consideration of Expert Evidence

23.1 The Applicant relies on the following medical evidence in support of the application:

a) Reports of Dr. EF dated 25 November 2023 and 18 December 2024.

b) The oral evidence of Dr. EF given during the hearing.

23.2 Dr. EF concludes that the Relevant Person lacks the capacity to consent to marriage, and further states that there is no remedy available to alter this position.

23.3 On behalf of the Relevant Person, a report was secured from Dr. GH, dated 22 May 2025, and he also gave oral evidence during the hearing. Dr. GH similarly concluded that the Relevant Person does not have the capacity to marry.

23.4 Other assessments have produced differing views. Dr. MN previously found that the Relevant Person had a basic but sufficient understanding of marriage. It is acknowledged that this report was not tested by cross-examination at the hearing.

23.5 A report from Dr. OP emphasised the Relevant Person’s intellectual disability and suggestibility, though it did not consistently distinguish between the capacity to marry and capacity in other domains, such as financial management.

23.6 The assessment conducted by Dr. QR and Ms. ST prior to Mr. AB and Ms. CD’s celebration of their relationship concluded that Mr. AB was confused and ambivalent about the celebration and that he lacked the ability to give informed consent to marry.

24. Evidence of Dr. EF

24.1 Dr. EF, a Consultant in Intellectual Disability, was called by the Applicant to give expert evidence on the Relevant Person’s capacity to consent to marriage. Her opinion was based on two assessments conducted in November 2023 and November 2024, the latter focusing solely on the issue of capacity to marry.

24.2 Dr. EF holds qualifications in general practice, intellectual disability, law, and other medical disciplines.

She has completed approximately 60 capacity assessments under the 2015 Act.

24.3 In her first assessment of the Relevant Person, he described marriage as “the ‘wedding,’ the getting dressed up and having a reception. He did not see the marriage as having any impact beyond that specific event.” Dr. EF found that while the Relevant Person could retain and communicate decisions, he lacked the ability to understand and weigh the legal and practical implications of marriage. She expressed concern about undue influence and a tendency by the Relevant Person to defer to the Notice Party’s wishes.

24.4 In the second assessment of the Relevant Person, Dr. EF noted cognitive decline consistent with early dementia. Dr. EF held that the Relevant Person repeatedly stated he “has live with Ms.CD,” but was unable to elaborate on this statement. She interpreted this as a rehearsed response and concluded that he did not understand the legal nature of marriage or its associated responsibilities.

24.5 During cross-examination, Counsel for the Notice Party challenged the breadth of the legal test applied by Dr. EF. She stated that the Court should find the correct test to be a:

“functional decision specific, time specific test, focused on the individual’s understanding of the nature of marriage as a committed and exclusive relationship, and that’s consistent with the low threshold that is applied across the water.”

Counsel for the Notice Party then asked Dr. EF if she applied this test, would the Relevant Person have Capacity. Dr. EF acknowledged that:

“If it were as simplistic a test as that and if marriage could be simplified to such minor elements as you’re going to love each other forever, well then could I say that [Mr. AB] fails that? No, I could not, Judge. However, I do not believe that it is possible to simplify marriage to that level”.

24.6 Counsel for the Notice Party further queried whether Dr. EF had conflated the capacity to marry with the capacity to be a married person, referencing her inclusion of financial management and support needs.

Dr. EF responded;

“my assessment of Mr. AB at all times throughout my capacity assessment was that he was able to understand the requirements that allowed him to enter into the marriage state, for perhaps a better choice of word, rather than contract or anything else.”

24.7 On the issue of supports, Counsel for the Notice Party referred to section 8(3) of the 2015 Act, one of the guiding principles of the Act, that a Relevant Person:

“shall not be considered as unable to make a decision in respect of the matter concerned unless all practicable steps have been taken, without success, to help him or her to do so.”

Counsel for the Notice Party also outlined a number of sections of the Code. Reference was made to section 6.1.1 of the Code which provides:

“All information relevant to the decision must be provided to the relevant person at the beginning or prior to the assessment. The relevant person must be given all the relevant information and options so that their capacity to understand this information can be accurately assessed.”

Section 3.1.1 of the Code was also referenced by Counsel for the Notice Party. It provides:

“When interacting with a relevant person, you should do your best to understand if there are aspects of the decision-making process that are particularly challenging. For example, one person may struggle to understand the information being presented while another may find it difficult to retain the information needed to make the decision.

Understanding the specific challenges for a relevant person will help you to provide them with more targeted support. You should consider what can be done to reduce or address challenges, for example, using memory prompts such as visual aids may help the relevant person to retain information”.

Reference was made by Counsel for the Notice Party to section 3.2.1 of the Code which states:

“You must provide the relevant person with all the appropriate information they need to make the decision or, where appropriate, to participate in the decision-making process to the fullest possible extent. This may include:

• using examples relevant to the decision or telling a story to explain the decision;

• setting out the options and choices in a balanced way, without giving one option special emphasis;

• setting out the risks and benefits of each option; and

• describing any foreseeable consequences of each option, including not making any decision at all.

You must remain neutral in relation to any information you provide to the relevant person.

Information must be provided in a way that does not put undue pressure on the relevant person to decide one way or the other about the decision to be made.”

Dr. EF confirmed that she used simplified verbal communication but did not employ visual aids, social stories, or multi-session scaffolding. She acknowledged that her report did not document the specific simplified verbal information provided during the assessment and expressed regret for that omission.

24.8 Counsel for the Relevant Person also raised concerns regarding the adequacy of the supports provided.

Dr. EF stated that she “was quite happy that the appropriate scaffolding and supports had been put in place both by other people, but more importantly during my own functional assessment, which was independent and separate”. She maintained throughout her evidence that some of the possible supports suggested were not clinically indicated in this case and would not have altered her conclusion.

24.9 Counsel for the Notice Party argued that Dr. EF had not conducted a follow-up assessment to determine whether the information had settled in the Relevant Person’s mind. Dr. EF responded;

“the course of us sitting on an assessment is as long as it requires for the person. It is taken at their pace. I do not put a time limit on it. So it is not a case of providing education and then rushing. It takes whatever time is required. And, therefore, as the decision has to be made at that time, I am not, in my opinion, Judge, required to assess if they can retain the information for a week. However, it is required that they understand it, and they understand it at the time they are making the decision, which was the time of my assessment.”

24.10 Counsel for the Notice Party emphasised the Relevant Person’s consistent and clearly expressed will and preference to marry the Notice Party. Dr. EF accepted the genuineness of this preference but maintained that it did not arise from a place of capacity. She distinguished between emotional commitment and legal understanding, reiterating that the Relevant Person lacked the ability to understand the relevant information.

24.11 Dr. EF was also questioned on her interpretation of the Relevant Person’s repeated statement that he “has to live with [Ms. CD].” Counsel for the Relevant Person suggested this may have been a learned response due to repeated questioning. Dr. EF disagreed, maintaining that the statement appeared rehearsed and lacked elaboration. Under cross-examination by Counsel for the Notice Party, Dr. EF emphasised the importance of distinguishing between “want” and “need” in the context of voluntary decision-making.

24.12 In re-examination, Dr. EF was asked in her “professional opinion as to what scaffolding in a case like this would look like”. Dr. EF held that she clinically evaluated the suitability of various forms of scaffolding in the context of the Relevant Person’s assessment. She stated:

“I have already referred to some of the scaffolding that could be used, including real life examples… I would have to be honest and say, Judge, it is my opinion that couples therapy would not be appropriate because that is not about supporting [Mr. AB] in making his decision but rather it is about the couple’s relationship. So that would not be something I would be suggesting.”

24.13 Dr. EF noted that while “talking therapy” is a broad term that can range from psychotherapeutic models to informal supportive conversations, it was not the focus of her assessment. When she discussed roleplay Dr. EF acknowledged:

“In some cases, it is possible to role play. I am considering how that would (a) be feasible, practical, and, secondly, how it may potentially add to the understanding or capacity. I accept that part of my evidence has been based on information as provided to me and is therefore considered hearsay, I accept that, Judge. However, I have nothing else available to me.

The opportunity for [Mr. AB] and [Ms. CD] to role play being married in a sense that would be more akin to normal life could be considered as additional scaffolding.”

This acknowledgment indicates that role-play was recognised by Dr. EF as a potentially appropriate support in principle, even if she maintained that its use would not have altered her clinical conclusion in this case. Dr. EF’s evidence reflects an understanding that experiential methods such as simulating aspects of married life may assist in contextualising abstract legal concepts for individuals with a cognitive impairment.

24.14 In summary, Dr. EF’s evidence was that the Relevant Person lacked the requisite understanding of the nature and responsibilities of marriage and that his will and preference, while genuine, did not arise from a place of capacity. Her opinion was grounded in a functional assessment conducted in accordance with the 2015 Act.

25. Evidence of Dr. GH

25.1 Dr. GH was called by Counsel for the Relevant Person to give expert evidence on the Relevant Person’s capacity to consent to marriage. His assessment was conducted on 21 May 2025 at the Applicant’s premises, and his report was prepared at the request of the Relevant Person’s solicitors. Dr. GH reviewed prior assessments, including those by Dr. QR and Ms. ST, Dr. MN, Dr. OP, and Dr. EF, noting that only Dr. MN’s 2019 report concluded that the Relevant Person had a “basic but sufficient” understanding of marriage.

25.2 Dr. GH told the Court that during the assessment, the Relevant Person expressed a clear and consistent desire to marry the Notice Party, referring to her as his wife and stating that “legal marriage… means I love her, and I would make her happy.” The Relevant Person during the assessment with Dr. GH referenced seeing people with intellectual disabilities marry on television and stated in response “I am interested in that. My sister got married. Why can’t I?”. Dr. GH found that while the Relevant Person understood marriage as an expression of love, he did not demonstrate any understanding of its legal or financial implications, despite repeated attempts by him to explain these concepts with care and sensitivity and from multiple angles.

25.3 Applying the statutory test under section 3 of the 2015 Act, Dr. GH concluded that the Relevant Person did not meet the first three limbs of the functional test: understanding, retention, and weighing of relevant information. He did, however, determine that the fourth limb, communication of a decision, was satisfied.

25.4 Dr. GH also conducted a mental state examination and found no evidence of acute mental illness. He stated that the Relevant Person was engaged, communicative, and demonstrated normal speech and mood.

Dr. GH clarified that the mental state examination was not a functional assessment under the 2015 Act as such but served to exclude acute psychiatric conditions:

The mental state examination includes some cognitive components under the thought content section, but also some more emotional components… the primary function of it in this circumstance is to ensure the person isn’t… in the throes of an acute mental illness or a highly emotive state... But …, it is not really a functional examination of the matter at issue.”

25.5 Counsel for the Applicant, Ms. Sarah McKechnie BL, questioned Dr. GH on whether the nature and consequences of marriage had been discussed with the Relevant Person. Dr. GH confirmed that he had discussed financial implications, including whether a spouse might have entitlements in relation to money or property, but the Relevant Person did not demonstrate any understanding of these concepts.

25.6 Counsel for the Applicant queried whether the Relevant Person had been provided with all relevant information for the purposes of the assessment. Dr. GH confirmed that he had provided all of the relevant information. That said, he acknowledged that the relevant information was not provided at the very start of the assessment. He emphasised that no alternative means would have enhanced the Relevant Person’s understanding, and that further time or additional sessions would not have altered the outcome.

25.7 In relation to decision-making supports under the 2015 Act, Dr. GH considered and rejected the suitability of both decision-making assistance and co-decision-making arrangements, stating that neither would be sufficient to enhance the Relevant Person’s capacity to the required level to consent to marriage.

Dr. GH did not consider the appointment of a decision-making representative, as that would involve another person making the decision entirely.

25.8 Counsel for the Notice Party conducted a detailed cross-examination focused on procedural compliance and the adequacy of supports provided during the assessment carried out by Dr. GH. She referred to section 3.0 of the Code, which mandates that:

“[A] relevant person must not be considered unable to make a decision unless all practicable steps have been taken to help them to make the decision”.

25.9 Counsel for the Notice Party queried whether Dr. GH had used visual aids, social stories, role-play, or real-life examples, as recommended under the Code. Dr. GH confirmed that he had not used visual aids or role-play, stating that he did not consider them appropriate. He acknowledged using adapted language and a hypothetical story-type format but did not record these techniques expressly in his report.

25.10 Counsel for the Notice Party asked whether all practicable steps had been taken in the assessment undertaken by Dr. GH, noting that the Code does not qualify the obligation by reference to what the assessor deems “appropriate.” Dr. GH responded that he would not use a support he considered unsuitable for the individual’s communication needs.

25.11 Counsel for the Notice Party further questioned whether the financial implications discussed were appropriate to the Relevant Person’s circumstances, given that he may not own property or have significant assets. Dr. GH replied that financial consequences are as a fact relevant to marriage. He explained that he had asked questions such as, “If you had money and got married, would your wife have a share of it?” but the Relevant Person did not demonstrate any understanding of the question.

25.12 Counsel for the Notice Party also raised concerns about the timing of information provision in the assessment undertaken by Dr. GH, citing section 6.1.1 of the Code:

“All information relevant to the decision must be provided to the relevant person at the beginning or prior to the assessment”.

Dr. GH acknowledged; “I eventually sort of put the information to him.” He maintained that the information was given within the first half of the session, though conceded that his report did not document this sequence.

25.13 Finally, Counsel for the Notice Party asked whether Dr. GH had made any inquiry with the Applicant regarding supports provided over the six years of litigation in the instant case. He stated that he had not, relying instead on the materials furnished to him.

25.14 In summary, Dr. GH’s evidence was that the Relevant Person lacked the requisite understanding of the nature and consequences of marriage and that his will and preference, while genuine, did not arise from a place of capacity. His opinion was grounded in a functional assessment conducted in accordance with the 2015 Act.

26. Report of Dr. MN

26.1 Although Dr. MN did not give oral evidence, his report dated 1 November 2019 was opened to the Court and formed part of the parties’ submissions. The report was relied upon to support the argument that the Relevant Person demonstrates a basic but sufficient understanding of the nature of marriage, and that the threshold for capacity should not be set so high as to exclude persons with a moderate intellectual disability from the right to marry.

26.2 Dr. MN identifies the relevant information required to make a decision to marry as encompassing an understanding of the nature of the marital contract and the mutual rights and responsibilities it entails. He draws on the definition articulated in Sheffield City Council v E. [2004] EWHC 2808 (Fam), which, as stated above, describes marriage as “an agreement between a man and a woman to live together, and to love one another as husband and wife, to the exclusion of all others,” and as creating “a relationship of mutual and reciprocal obligations, typically involving the sharing of a common home and a common domestic life and the right to enjoy each other’s society, comfort and assistance”.

26.3 The report expressly rejects the imposition of a high threshold for capacity, noting that the expectations found in other assessments such as an understanding of divorce, inheritance, or the division of assets are not required by law and would operate to exclude not only the Relevant Person, but potentially all persons with a moderate intellectual disability, from the right to marry.

26.4 In his interview with the Relevant Person, Dr. MN recorded responses which he interpreted as demonstrating a basic understanding of the nature of marriage. The Relevant Person described marriage to Dr. MN as meaning “you stay together and also we love each other,” and engagement as meaning “I’m taken, that means I’m spoken for”. He expressed a desire to live with the Notice Party “some day … step by step,” and stated that he would “give [Ms. CD] a hand with things.” These responses were considered by Dr. MN to reflect an appreciation of the mutual obligations and responsibilities associated with marriage, including cohabitation and emotional commitment.

26.5 The report also addresses the Relevant Person’s understanding of the distinction between terms such as girlfriend, fiancée, and wife. Dr. MN notes that while the Relevant Person’s vocabulary was limited, his use of gestures, such as pointing to a ring, and his statements that being engaged means “I’m taken” and “special” were indicative of a qualitative understanding of commitment. The report questions whether a fuller understanding of these distinctions is legally required and concludes that the Relevant Person’s responses were sufficient given his cognitive level.

26.6 Dr. MN further considers the reference in other reports to the Relevant Person having conflicted feelings between his life remaining as it is and his life changing once he gets married. He states that these concerns were indicative of the depth of the Relevant Person’s emotional connection and his awareness of the significance of the decision to marry. Dr. MN’s report suggests that such expressions may reflect a degree of consideration of the implications of marriage, and an understanding that marriage entails a change in one’s responsibilities and obligations.

26.7 The report is careful not to conflate the Relevant Person’s capacity to marry with his capacity in other domains. In this regard, Dr. MN separately assessed the Relevant Person’s capacity to manage his own affairs. He concludes that the Relevant Person did at that time “meet the narrowly defined criteria for Wardship”. That said, he states “in this regard were the Assisted Decision-Making (Capacity) Act fully commenced he would likely be a candidate for a lower support option under this Act”. He notes that capacity is decision-specific and that the Relevant Person’s limitations in other areas do not preclude a finding of capacity to marry.

26.8 While the report of Dr. MN provides a cogent and legally grounded analysis of the Relevant Person’s capacity to marry, the Court notes that his evidence was not subject to cross-examination. Accordingly, the Court has not had the benefit of adversarial testing of the report’s conclusions, nor the opportunity to seek further clarification on its reasoning. This limitation, coupled with the report’s vintage, is material and has been considered in the Court’s overall assessment. Nonetheless, the report remains of considerable relevance insofar as it reflects a rights-based and legally consistent approach to the assessment of capacity and offers a perspective that stands in contrast to the conclusions reached in more recent expert evidence.

27. The Evidence

27.1 The Court has carefully considered the evidence presented by the Applicant, the Relevant Person and the Notice Party. As this is a civil matter, the applicable standard of proof is on the balance of probabilities.

27.2 Expert reports were furnished and oral evidence was given by Dr. EF and Dr. GH, both concluding that the Relevant Person lacks the capacity to marry. The Court has scrutinised these assessments in light of the statutory framework under the 2015 Act and relevant jurisprudence.

27.3 In Duffy v. McGee [2022] IECA 254, Collins J. emphasised that for the Court to properly discharge its function:

“the court must be able to understand and engage with the evidence, which in turn requires that experts should sufficiently explain their opinions and the basis for them.”

27.4 The English Courts have repeatedly emphasised the requirement to provide the Relevant Person with information relevant to the decision. This is not a theoretical or abstract exercise. The assessor must clearly specify what the individual needs to understand, retain, and weigh in order to make the particular decision.

As held in P.C. v. City of York Council [2013] EWCA Civ. 478, the statutory framework demands a structured analysis beginning with the identification of the decision and the information pertinent to it.

27.5 Similarly, in C.C. v. K.K. and S.T.C.C. [2012] EWHC 2136, Baker J. clarified that it is not necessary for a person to understand and weigh every detail of the respective options, but rather the salient factors. The assessment must focus on those core elements that are essential to the decision at hand.

27.6 This approach is reinforced in the UK by the Code of Practice accompanying the MCA 2005 which is mirrored in the Code under the 2015 Act. Both codes emphasise that capacity assessments must be functional, decision-specific, and time-specific. Assessors are required to identify and communicate the relevant information in a manner tailored to the individual’s needs using clear language, visual aids, or other supports as necessary. They must also prepare questions and lines of enquiry suited to the specific

decision, ensuring that the person is given all relevant information and options so that their capacity can be accurately assessed.

27.7 Failure to set out and communicate this information in an accessible and concrete manner risks setting the threshold either too high or too low and undermines the fairness and validity of the assessment. The consequences of the failure to set out and communicate the information referenced above is the person may not be afforded a proper opportunity to demonstrate their capacity in relation to the actual decision at hand. In the present case, the Court notes that the capacity assessors did not explicitly set out what they considered to be the relevant information for the decision to marry “at the beginning or prior to the assessment”.

27.8 The Court further notes the statutory obligation under section 8(3) of the 2015 Act, which provides that a person is not to be regarded as unable to make a decision unless all practicable steps to help them do so have been taken without success. This principle requires assessors to actively support the individual using accessible language, visual aids, repetition, and other tailored methods suited to the person’s communication needs. The assessment should take place in an environment conducive to the individual’s best performance and should consider whether capacity could be acquired with appropriate supports.

27.9 In the context of marriage, this entails providing the Relevant Person with clear and accessible information about the nature and consequences of marriage, allowing for questions, repetition, and varied explanations.

The process should be “at the beginning or prior to the assessment” and should be iterative, involving repeated efforts to scaffold understanding and test whether, with support, the individual could attain the necessary capacity.

27.10 The failure to adopt such an approach risks undermining the legitimacy of any finding of incapacity, as it may deprive the person of a fair opportunity to demonstrate decision-making ability. The Court is therefore concerned that the assessments relied upon in this case may not have satisfied the statutory requirements for a valid and rights-compliant evaluation of capacity.

28. Undue influence

28.1 The Court has considered the issue of undue influence. While the issue has featured in earlier proceedings and in certain professional reports, it has not formed a central plank of the present application. The Relevant Person has consistently and clearly expressed a wish to marry the Notice Party, and the Court must approach any suggestion that this wish is the product of improper pressure with caution and on the basis of the evidence.

28.2 The Court notes that no direct evidence has been adduced from individuals said to have observed undue influence. Assertions that staff members witnessed acquiescence or that the Notice Party’s mother was very assertive in requesting marriage have not been supported by sworn testimony or first-hand accounts.

The materials relied upon consist largely of professional opinion and second-hand summaries, rather than direct observations from those present at the material times. This limitation was acknowledged during the hearing and is material to the Court’s assessment on this discrete issue.

28.3 The professionals whose reports refer to suggestibility or deference such as Dr. EF did not base their conclusions on findings of coercion or manipulation. Rather, their assessments were grounded in the application of the statutory test for capacity. The mere fact that the Relevant Person is described as suggestible or as wishing to please others is not, in itself, sufficient to establish that his will has been overborne. Influence is a natural feature of close relationships; it becomes undue only where it operates to extinguish the free agency of the individual.

28.4 In her evidence, Dr. EF stated that she had not met the Notice Party or her family prior to the assessment and had not witnessed any interactions between them. Her concerns regarding undue influence were based on information provided by third parties, including staff members at the Residential Centre, and on her clinical observations of the Relevant Person’s responses during her assessment. She noted, for example, that the Relevant Person frequently answered questions by reference to what “[Ms. CD] wants” and that he appeared to acquiesce rather than express independent views. That said, Dr. EF accepted that she had no direct evidence of coercion or manipulation and that her concerns formed only one part of a broader functional assessment.

28.5 In cross-examination, it was suggested that the Relevant Person’s responses may have become formulaic or rehearsed due to repeated questioning over time. Dr. EF acknowledged that this was possible but maintained that the phrase “I have to live with [Ms. CD],” which was repeated during her second assessment, appeared to be a learned response that lacked elaboration. She was unable to identify the source of the statement or produce evidence that it had been prompted by another person.

28.6 The Court is mindful that the issue of undue influence, if relied upon, must be supported by clear and cogent evidence. In the absence of such evidence, the Court does not consider that undue influence has been established on the balance of probabilities as a basis for determining lack of capacity in this case.

29. Discrimination

29.1 The Court must remain vigilant to the potential interaction between its determination of this application and the risk of indirect discrimination. As Denham C.J. observed in Fleming v. Ireland [2013] 2 I.R. 417, at p. 439:

“While most constitutional challenges will involve a provision which directly affects the individual who asserts an infringement of their constitutional rights, there is no reason in principle why, in an appropriate case, a person cannot seek to argue that their constitutional rights are interfered with by a measure which indirectly affects them in a way which prevents or seriously impairs their ability to exercise the asserted constitutional right in question. There may, of course, be further questions which would arise in analysing whether any interference with a relevant constitutional right was legitimate, in that the considerations which may apply in balancing any competing interest may not be exactly the same as and between a case of direct interference, on the one hand, and indirect interference, on the other hand. However, such a difference in approach would arise on the substantive question of permissible interference and it would not deprive a plaintiff of standing to argue that indirect interference, if it can be shown, is a breach of a contended constitutional right.”

29.2 This passage underscores the principle that indirect interference with constitutional rights may, in appropriate circumstances, constitute a breach, and that such interference must be carefully scrutinised in the context of the rights asserted.

30. Voice of the Relevant Person and the Notice Party

30.1 During the hearing, the Court took the opportunity to speak privately and informally with the Relevant Person and the Notice Party with the consent and approval of the legal teams for the Applicant, the Relevant Person and the Notice Party. This engagement was conducted in the courtroom, with only the Registrar, Judicial Assistant, stenographer, and each party’s support advocate present. The purpose of this conversation was not to receive sworn testimony or formal evidence, but rather to hear directly from the individuals most affected by the proceedings, in a manner that was respectful, accessible, and pressurefree.

30.2 The Court does not propose to comment on the content of those conversations in this judgment. However, it wishes to record that the opportunity to speak directly with both parties was of significant benefit. The Court found the interaction to be enriching and illuminating, providing a deeper appreciation of the parties’ perspectives, their longstanding relationship, and the sincerity of their expressed will and preference to marry. While the parties’ wishes had been consistently documented throughout the proceedings, hearing them articulated directly and freely added a valuable dimension to the Court’s understanding.

30.3 The Court considers that such engagement is not only beneficial but also consistent with its implied duties under sections 8 and 139 of the 2015 Act. These sections provide that, in performing any function under the 2015 Act, the Court shall have regard to the need to encourage the participation of the relevant person in the decision-making process and give effect to their will and preferences insofar as practicable. In circumstances where the Relevant Person and the Notice Party are both vulnerable adults, the Court was satisfied that it was both appropriate and necessary to hear from them directly, and that doing so fulfilled the spirit and purpose of the statutory framework.

31. Closing Submissions

31.1 Counsel for the Applicant, Ms. Sarah McKechnie BL, opened her closing submission by acknowledging the gravity of the application and the constitutional significance of the right to marry. She emphasised that the application was confined to a single, decision-specific issue, whether the Relevant Person has the capacity to consent to marriage and was not intended to interfere with any other domain of personal welfare or legal autonomy.

31.2 Counsel for the Applicant submitted that the right to marry, while fundamental, is not absolute and may be lawfully restricted where capacity is lacking. She relied on the evidence of Dr. EF and Dr. GH, both of whom concluded that the Relevant Person does not meet the statutory threshold for capacity to marry. She described this evidence as “overwhelming” and noted that both experts had applied the functional test under section 3 of the 2015 Act.

31.3 The Applicant urged the Court to adopt a test for marital capacity that includes an understanding of the nature

of the marriage contract, the duties and responsibilities it entails, and the ability to give full, free, and informed consent. Counsel for the Applicant cautioned against a test that is overly tailored to the specific circumstances of the couple, arguing that capacity must be assessed in a generalised and legally consistent manner. She submitted that the assessments conducted were thorough and supported by oral evidence that addressed any perceived deficiencies in the written reports.

31.4 In summary, Counsel for the Applicant stated that the application was brought reluctantly but necessarily, and that the evidence before the Court justified the making of a declaration under section 37(1)(b) of the 2015 Act.

31.5 Counsel for the Relevant Person, Mr. Declan Higgins BL, framed his submission around the enduring relationship between the Relevant Person and the Notice Party, describing it as one marked by mutual affection, resilience, and commitment. He emphasised the consistency of the Relevant Person’s will and preference to marry, which had remained unchanged over the period of the litigation and repeated assessments.

31.6 Counsel for the Relevant Person urged the Court to weigh the Relevant Person’s consistent and freely expressed will and preference heavily in the balance, and to reject the application on the basis that the presumption of capacity had not been rebutted.

31.7 Counsel for the Notice Party, Ms. Emma Slattery BL, submitted that the application before the Court seeks a declaration of the gravest kind, one that would extinguish the fundamental right of the Relevant Person, and by extension the Notice Party, to marry. She emphasised that such a declaration would not only interfere with a constitutionally protected right under Article 41 of the Constitution, but also with the right to marry under Article 12 of the ECHR. The Court, she argued, must approach this application with the utmost caution, and only accede to it if the Applicant has discharged the statutory burden of proof to the letter of the law.

31.8 Counsel for the Notice Party focused her submissions on what she believed to be two central deficiencies in the Applicant’s case:

(1) the failure to provide adequate supports, and

(2) the misapplication of the legal test for capacity to marry.

31.9 Counsel for the Notice Party submitted that the assessments relied upon by the Applicant were procedurally flawed and failed to comply with the statutory obligation under section 8(3) of the 2015 Act. That provision mandates that:

“A relevant person … shall not be considered as unable to make a decision in respect of the matter concerned unless all practicable steps have been taken, without success, to help him or her to do so.”

31.10 Counsel for the Notice Party argued that neither Dr. EF nor Dr. GH demonstrated that such steps had been taken. The Code, which the Court is required to consider under section 91 of the 2015 Act, sets out clear expectations for capacity assessments. Section 6.1.1 of the Code requires that:

“All information relevant to the decision must be provided to the relevant person at the beginning or prior to the assessment.”

31.11 Counsel for the Notice Party highlighted that both experts failed to document the provision of relevant information at the outset of their assessments. Dr. GH conceded in cross-examination that he “eventually”

provided the information during the interview, but this was not recorded in his report.

31.12 Counsel for the Notice Party further noted that the Applicant had failed to demonstrate any sustained or structured effort to support the Relevant Person’s understanding over the period of the litigation. In this regard, she stated that no educational interventions or iterative engagement were documented. The only reference to support was a passing mention in an affidavit that the Relevant Person was due to commence dietary counselling, an intervention unrelated to the decision at hand. Counsel for the Notice Party argued that this omission was fatal to the Applicant’s case as the Court, as an intervener under the 2015 Act, must be satisfied that every practicable support has been exhausted before making a declaration of incapacity.

31.13 Counsel for the Notice Party submitted that the assessments were conducted against an incorrect and overly abstract legal standard. She criticised the reliance on formulations such as “understanding the nature of the marriage contract” and “duties and responsibilities of marriage” without clarifying what these terms meant in practice. Counsel for the Notice Party argued that such language, while familiar to lawyers, is opaque and inaccessible to persons with intellectual disabilities.

31.14 Counsel for the Notice Party urged the Court to adopt a clear, low-threshold, person-specific test that reflects

the functional approach mandated by section 3 of the 2015 Act. The test, she submitted, must be:

a) Comprehensible: The relevant information must be defined in concrete terms.

b) Non-discriminatory: It must not exclude individuals based on abstract or complex legal concepts.

c) Tailored: It must reflect the person’s actual circumstances, including their financial and living situation.

31.15 Counsel for the Notice Party proposed that the relevant information for the decision to marry should include:

i. That marriage is a lifelong legal relationship that changes one’s status from single to married;

ii. That as a married person, one assumes duties of love, care, and mutual support;

iii. That the dissolution of marriage may entail financial consequences, but only where relevant to the person’s circumstances.

31.16 Counsel for the Notice Party argued that requiring the Relevant Person to understand financial implications that do not apply to him, such as property division or inheritance, was inappropriate and discriminatory. She stated that the test must be rooted in the individual’s actual circumstances.

31.17 Counsel for the Notice Party also addressed the issue of undue influence. She submitted that there was no sworn evidence of coercion, manipulation, or threats. Assertions of suggestibility were speculative and unsupported. The Registrar of Births, Deaths and Marriages, the statutory gatekeeper of the marriage process, had raised no objection when the Relevant Person and Notice Party presented to give notice of their intended wedding. This, Counsel for the Notice Party argued, was a strong indication that no concerns of undue influence were apparent at that time.

31.18 Counsel for the Notice Party concluded by reminding the Court that the burden of proof rests entirely with the Applicant. Even if the Relevant Person and Notice Party had said nothing, filed no affidavits, and made no submissions, the Applicant must still discharge the burden of proof. Counsel for the Notice Party submitted that the evidence before the Court, both in substance and in process, was insufficient to justify the interference sought. Moreover, she stated that the assessments were flawed, the supports were lacking, and the legal test was misapplied.

31.19 Counsel for the Notice Party urged the Court to dismiss the application and affirm the parties’ right to marry,

noting that their relationship had endured more than many marriages and that their love and commitment had withstood years of adversity. The Court, she submitted, must not extinguish that right on the basis of assessments that failed to meet the statutory and constitutional standards required.

32. The Court’s Findings

32.1 The declaration sought in this case is a matter of considerable significance in that it concerns an application

for a declaration that the Relevant Person lacks capacity to consent to marriage. The consequences of such a declaration are both serious and far-reaching. If granted, it would operate as a legal impediment to the proposed marriage between the Relevant Person and the Notice Party, pursuant to section 58 of the 2004 Act, as amended by the 2015 Act. That legislation provides that:

“A marriage is void where one or both parties lack the capacity, within the meaning of the 2015 Act, to consent to the marriage.”

32.2 The implications of such a declaration extend beyond the legal sphere. It would constitute a profound intrusion into the personal autonomy and private lives of the individuals concerned. The effect of such an order would be to place a legal barrier between two individuals who have expressed a longstanding and mutual wish to marry. In substance, it would amount to the denial of a fundamental personal right. The right to marry is protected under Article 41.3.1° of the Constitution, which recognises the institution of marriage as the foundation of the family and pledges to guard it with special care. It is also protected under Article 40.3.1° of the Constitution, which guarantees to vindicate the personal rights of the citizen, and under Article

12 of the ECHR.

32.3 The parties have acknowledged that the making of a declaration of incapacity would have the effect of preventing the Relevant Person from marrying the Notice Party, notwithstanding their longstanding relationship and mutual wish to do so. The Court is mindful that such a consequence must be approached with caution and with full regard to the principles of autonomy, dignity, and equality before the law. Any interference with the right to marry must be justified by clear and cogent evidence.

32.4 In assessing the consequences of granting the order sought, the Court has also considered the implications for

persons with intellectual disabilities. It is essential that the legal threshold for capacity to marry not be set so

high as to operate as a blanket exclusion for individuals with cognitive impairments. The statutory framework under the 2015 Act requires a functional, decision-specific assessment, and the Court must be vigilant to ensure that its application does not result in indirect discrimination or the unjust denial of rights.

32.5 The Court has considered the specific facts of the instant case. The Relevant Person and the Notice Party have been in a committed relationship for over twenty years. Their relationship has endured a period of litigation during which they have consistently expressed a mutual wish to marry. The Court is satisfied that this is a longstanding, loving, and resilient relationship that has been thoroughly tested over time. The depth and sincerity of the commitment of the Relevant Person and Notice Party is not in dispute.

32.6 Turning to the applicable legal framework, the Court finds that the right to marry is a fundamental constitutional and human right.

32.7 The Court suggests a four-pronged test for assessing capacity to marry where a person will be deemed to have capacity to marry where they can:

a) Understand the nature of marriage;

b) Appreciate the duties and responsibilities it entails;

c) Recognise the potential consequences of marriage;

d) Give full, free, and informed consent.

32.8 This test is grounded in the statutory framework of the 2015 Act and informed by constitutional and human rights principles. It is designed to safeguard autonomy while ensuring informed consent. Moreover, this test is consistent with the functional approach mandated by the 2015 Act and the Code.

32.9 The presumption of capacity is enshrined in section 8(2) of the 2015 Act, which provides:

“It shall be presumed that a relevant person … has capacity in respect of the matter concerned unless the contrary is shown.”

32.10 Section 8(3) of the 2015 Act further provides:

“A person shall not be considered as unable to make a decision in respect of the matter concerned unless all practicable steps have been taken, without success, to help him or her to do so.”

This provision imposes a statutory duty to exhaust all reasonable supports before concluding that a person lacks capacity.

32.11 The Court has also had regard to the Code pursuant to section 91 of the 2015 Act. In particular, section 6.1.1

of the Code provides:

“All information relevant to the decision must be provided to the relevant person at the beginning or prior to the assessment. The relevant person must be given all the relevant information and options so that their capacity to understand this information can be accurately assessed.”

32.12 Section 3.1.1 of the Code further provides:

“When interacting with a relevant person, you should do your best to understand if there are aspects of the decision-making process that are particularly challenging.”

32.13 Moreover, section 3.2.1 of the Code states:

“You must provide the relevant person with all the appropriate information they need to make the decision or, where appropriate, to participate in the decision-making process to the fullest possible extent.”

32.14 The Court finds that these provisions are not discretionary. They are essential to the lawful conduct of a capacity assessment and must be adhered to. An assessor may exercise professional discretion in conducting the assessment. That said, the assessor should have regard to the Code in the exercise of his/her discretion.

32.15 The Court has considered the expert evidence with care. Both Dr. EF and Dr. GH concluded that the Relevant Person lacks capacity. The Court wishes to acknowledge the professionalism, diligence, and evident care with which both experts approached their assessments. The Court is particularly mindful that these assessments were undertaken under a new statutory framework, in the absence of judicial precedent or settled guidance on the threshold for the capacity to marry. The task placed upon the experts was very onerous, and the Court recognises the complexity and sensitivity of the issues involved.

32.16 Notwithstanding the commendable efforts of both experts, the Court is not satisfied that the assessments complied with the statutory requirements under the 2015 Act and the Code. In particular, the Court was not satisfied that the assessments clearly identified the relevant information for the decision to marry at the beginning or prior to the assessment, nor did they demonstrate that all practicable steps were taken to support the Relevant Person in understanding that information. The assessments were static in nature and did not reflect an iterative or educative process. There is no indication that the Relevant Person was given repeated opportunities to learn about marriage, to receive information in varied formats, or to have his understanding tested over time.

32.17 Section 8(7) of the 2015 Act provides that the intervenor, in making an intervention in respect of a Relevant Person, shall:

“(a) permit, encourage and facilitate, in so far as is practicable, the relevant person to participate, or to improve his or her ability to participate, as fully as possible, in the intervention,

(b) give effect, in so far as is practicable, to the past and present will and preferences of the relevant person, in so far as that will and those preferences are reasonably ascertainable.”

The Court finds that section 8(7) fundamentally underpins the essence of the 2015 Act.

32.18 Both Dr. EF and Dr. GH acknowledged the Relevant Person’s longstanding relationship with the Notice Party and his clearly expressed wish to marry her. However, the Court notes a lack of evidence that any structured or sustained educational effort was undertaken prior to the assessments to support the Relevant Person in understanding the nature and implications of marriage. The assessments appear to have interpreted the Relevant Person’s repeated expressions of love and desire to marry as indicative of limited comprehension, rather than as genuine manifestations of his will and preference.

32.19 In the absence of a preparatory process designed to scaffold understanding, such as iterative engagement, tailored communication supports, or contextualised explanations, the Court is not satisfied that the assessments adequately explored whether the Relevant Person’s preference to marry was both authentic and enduring, or whether his understanding could have been enhanced through appropriate educational interventions.

32.20 The Court is mindful that the 2015 Act was enacted to give meaningful effect to the principles of autonomy, dignity, and equality for persons whose decision-making capacity may be in question. The 2015 Act is not merely procedural; it is purposive. It seeks to ensure that individuals are supported to make decisions for themselves wherever possible, and that their rights are respected even where support is required. To set the threshold for capacity to marry too high would be to render the spirit of the 2015 Act redundant. It would risk transforming a protective framework into a restrictive one, contrary to the legislative intent and the values underpinning the UNCRPD, to which Ireland is a party.

32.21 The Court finds that there is no direct or reliable evidence of coercion, manipulation, or undue influence. The

Relevant Person’s wish to marry the Notice Party appears to be genuine, enduring, and freely expressed.

32.22 The Court is satisfied that the presumption of capacity as set out in section 8(2) of the 2015 Act has not been

rebutted. The making of a declaration to the contrary would constitute a disproportionate and unnecessary interference with the constitutional and human rights of both the Relevant Person and the Notice Party. The Court therefore declines to make the declaration sought under section 37(1)(b) of the 2015 Act.

33. Court Decision

33.1 This was a particularly difficult application. It is important to state that the Court was in no doubt that the

motivation for the Applicant seeking the declaration under section 37(1)(b) of the 2015 Act was the best interests of Mr. AB. It is clear from the submissions and the evidence tendered to the Court that Mr. AB has received high quality care and support from the Applicant.

33.2 This application has required the Court to navigate the intersection of law, autonomy, and human dignity. The 2015 Act is not merely a procedural reform. It is a statement of values which affirms that individuals with cognitive impairments are entitled to support, respect and the presumption of capacity. Moreover, the 2015 Act requires that individuals with cognitive impairments have their voices heard and their rights upheld.

33.3 In matters as intimate and constitutionally protected as the right to marry, the Court must apply the law in a manner that safeguards against exclusion and affirms personal agency. The statutory framework is clear:

capacity must be assessed functionally, supportively, and with fidelity to the individual’s will and preferences.

The law must protect, but it must also empower.

33.4 Having considered the evidence and the statutory provisions of the 2015 Act, the Court refuses to grant the declaration sought under section 37(1)(b) of the 2015 Act.

The Court finds that the presumption of capacity under section 8(2) of the 2015 Act has not been rebutted. That presumption is a cornerstone of the statutory framework and cannot be displaced unless the evidence adduced demonstrates full compliance with section 8(3) of the 2015 Act, including that all practicable steps have been taken to support the Relevant Person in making the decision. The assessments relied upon in this application did not meet that threshold. The Court’s determination is confined to the specific issue and time at which the application was made, and does not preclude the possibility of a future application. Accordingly, the Applicant has liberty to re-apply, should they wish to do so, on the basis of fresh evidence that satisfies the statutory obligations and procedural safeguards set out in the 2015 Act and the associated Code.