In the Matter of AB is an extremely interesting decision from the Circuit Court in Ireland. It concerns the capacity of the man in question (the ‘relevant person’ using the language of the Assisted Decision-Making (Capacity) Act 2015) to marry. AB was in his forties and had an an intellectual disability. He had resided in a residential centre for a number of years, following the death of his parents. Upon discharge from wardship under the 2015 Act, he had been determined by the High Court to lack capacity (even with a co-decision-maker) to make decisions about welfare, or about a number of specific areas in relation to the management of his property and affairs; a solicitor had been appointed as Decision-Making Representative (crudely, in English terms, a deputy) for those property and affairs matters.
AB’s intended spouse, CD, (the ‘notice party’ using the language of the 2015 Act), also an adult with an intellectual disability, was his long-term partner. AB and CD had been in a committed relationship for approximately 20 years. Their relationship was described by all who know them as one of genuine love, mutual support, and enduring commitment. They had participated in a celebration of their relationship and had consistently expressed a wish to marry. CD lived independently with support, while the AD lived in a supported living environment.
Perhaps slightly surprising (from an English perspective) the application was not brought by the relevant statutory authorities (in Ireland, the Health Services Executive), but rather by the residential centre itself. The application was for a declaration that the man lacked capacity to consent to marry (even with a suitable person as a co-decision-maker), which would serve as an impediment to marriage under the relevant Irish legislation.
Also slightly surprisingly (again from an English perspective), the application was heard by the Circuit Court, rather than the High Court, but that was a function of the 2015 Act, which reserved applications of this kind to the Circuit Court. Undeterred by the novelty and significance of the case, HHJ Geoffrey Shannon SC rolled up his sleeves and got (in technical terms) entirely stuck into both what test he should apply, and whether the relevant experts before him had appropriately assessed the person’s capacity.
As to the test, HHJ Geoffrey Shannon SC drew on a range of English cases, as well as pre-existing Irish case-law, and came to the following conclusions:
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:
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- 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.
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- 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.
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- 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.
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- 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.
HHJ Geoffrey Shannon SC then set out in detail the provisions in relation to support within the 2015 Act:
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:
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- Use examples relevant to the decision or tell a story to explain the decision;
- Present options and choices in a balanced way;
- Set out the risks and benefits of each option;
- 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.
Many might find what he then said of particular interest:
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.
After making some observations about the weight to be placed on expert reports, chiming with the approach taken in the Court of Protection, HHJ Geoffrey Shannon SC turned to the evidence received. Of particular interest was the systemic challenge by Counsel for CD to the approach taken by the two experts before the court, one of whom (GH), had been instructed on behalf of AB, and had agreed with the other expert, EF, that AB lacked capacity to marry.
Drawing the threads together, HHJ Geoffrey Shannon SC concluded that:
32.14 The Court finds that these provisions [relating to support, set out above] 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 concluding paragraph of the judgment was of note in terms of hinting that this might not be the end of the story:
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.
Comment
The body of caselaw under the 2015 Act is still relatively small (and, on one view depressingly, being matched by a body of caselaw being decided under the inherent jurisdiction which is picking up all the gaps in the 2015 Act now that wardship has been abolished – for a good example, see here). This is a very interesting decision emphasising the extent to which the 2015 Act is intended to be more than a procedural reform but a statement of values. The observations in relation to support are particularly clear and strong.
I might offer three small observations. The first is that it was interesting that the English cases the court took into account did not include Re DMM, in which the Court of Protection (at Tier 2 level) fleshed out the issue of foreseeable financial consequences. As we noted in the comment on the case at the time, this is an issue which remains (in England) in need of appellate level consideration.
The second is that it is not entirely clear or not whether the court proceeded on the basis that the test was person-specific (i.e. capacity to marry this person, not capacity to marry in general). Counsel for CD submitted that it was person-specific (see paragraph 9.7); the summary of English law proceeded on the basis it was status-specific. The test proposed by the court appears to be status-specific. What is perhaps of some interest here is that the most recent English case relied upon – ZZ – essentially assumed that marriage was status-specific, in circumstances where the Supreme Court here has made clear:
The only statutory test is in relation to the ability to decide. In the context of sexual relations, the other vocabulary that has developed around the MCA, of “person-specific”, “act-specific”, “situation-specific” and “issue-specific”, should not be permitted to detract from that statutory test, though it may helpfully be used to identify a particular feature of the matter in respect of which a decision is to be made in an individual case.
Whilst the observations here concerned sex, the statement of principle here was arguably of wider application; we are still waiting on this side of the Irish Sea for that reasoning actually to be considered in the context of marriage.
The third observation is in relation to the fourth limb of the test for capacity proposed by the court – i.e. that the person can give full, free and informed consent. Arguably, this is not part of the test for capacity, but rather what the test is intended to determine: i.e. that the person is able to give full, free and informed consent (and, parenthetically, it might be thought also, understandably, to require more than ‘mere’ capacity by requiring that the consent be free).
