Background
The case concerns a young adult man with autism spectrum disorder who is non-verbal and requires full-time support. In July 2023 the Circuit Court declared that he lacked decision-making capacity, and his parents subsequently entered a consent arrangement governing his day-to-day care. The Father later sought a review of the earlier proceedings, raising concerns that the Adult Son had not been present or represented at those hearings. In response, the Circuit Court appointed an independent solicitor, Mr Gordon Curley, to investigate matters and recommend which parent was the more suitable decision-making representative.
On 22 October 2025, the Circuit Court formally appointed the Mother as decision-making representative under section 38(2)(b) of the Assisted Decision-Making (Capacity) Act 2015, covering decisions relating to the Adult Son’s finances, medical care, accommodation, diet, and day-to-day welfare. The order dispensed with the Adult Son’s attendance under section 139 of the Act, reciting that while his will and preferences could not be ascertained, Mr Curley had been available to the court as an independent advocate. The Father, appearing as a litigant in person, initiated judicial review proceedings in the High Court in March 2026, two months after the three-month time limit prescribed by Order 84, rule 21 of the Rules of the Superior Courts had expired.
The Father raised seven grounds of challenge, principally that the Adult Son had been excluded from the proceedings without the statutory criteria under section 139 being properly met, that Mr Curley’s role as assessor did not fulfil the function of communicating the Adult Son’s own will and preferences to the court, and that the Circuit Court had acted outside its jurisdiction in various respects.
The Court’s Holding
Mr Justice Garrett Simons granted an extension of time and leave to apply for judicial review on four of the seven grounds. On the time-limit question, the court accepted that the Father, as a litigant in person present in court on 22 October 2025, was aware of the substance of the order but could not reasonably have recalled its precise wording — wording that was central to the section 139 argument — until he received a certified copy in February 2026. More fundamentally, the court held that the person most affected by a refusal of an extension was not the Father but the Adult Son, a vulnerable adult whose ongoing care, welfare, finances, and contact arrangements were directly governed by the impugned order. It would be disproportionate, the court reasoned, to visit the Father’s delay upon the Adult Son by blocking examination of the legality of the process that produced that order.
On the substantive grounds, the court found arguable cases on two related questions: first, whether the reasons recited in the Circuit Court order for dispensing with the Adult Son’s attendance coincided with any of the statutory criteria enumerated in section 139; and second, whether Mr Curley’s function — gathering information, interviewing professionals, and recommending which parent should be appointed — was legally capable of substituting for a mechanism designed to place the relevant person’s own will and preferences before the court. The court emphasised that the Act’s guiding principles under section 8 require the relevant person to be permitted, encouraged and facilitated to participate as fully as possible, and that non-verbal communication through gesture, assistive technology, or other means must be considered before attendance is dispensed with. Leave was also granted on two related service grounds.
Leave was refused on the remaining three grounds. The court rejected the argument that the Circuit Court had no power to revisit a consent order, noting the Act’s continuing supervisory jurisdiction. It equally rejected the contention that the Circuit Court lacked jurisdiction to make personal welfare arrangements for an adult, distinguishing the adult-capacity jurisdiction under the 2015 Act from the children’s custody jurisdiction under the Guardianship of Infants Act 1964. Finally, a freestanding complaint about notification irregularities affecting the Father alone was held not to be arguable, as he had subsequently had full opportunity to participate. On the exhaustion of remedies point, the court held that the statutory appeal to the High Court on a point of law under section 141 did not preclude judicial review, because the alleged defects — if established — would amount to a fundamental failure of the statutory participation scheme, not merely an error in the exercise of discretion.
Key Takeaways
- Dispensing with a relevant person’s attendance under section 139 of the Assisted Decision-Making (Capacity) Act 2015 requires the court to identify and apply one of the specific statutory criteria; a recital that an independent assessor was available is not, on its face, a recognised ground.
- An independent solicitor appointed to investigate and recommend which party should be decision-making representative performs a materially different function from a person tasked with ascertaining and communicating the relevant person’s own will and preferences; the two roles are not interchangeable.
- Being non-verbal does not of itself justify exclusion from proceedings; courts must consider whether functional communication — through gesture, assistive technology, pictures, or other means — could enable participation or at least support ascertainment of will and preferences.
- The uncommenced “court friend” provisions of the Act leave a gap in the participation architecture; this does not excuse non-compliance with section 139, but it does affect how alleged procedural failures are assessed.
- When a vulnerable adult is the subject of an ongoing order, the High Court may grant an extension of time for judicial review where refusing to do so would effectively deny examination of whether that adult’s statutory procedural rights were respected.
Why It Matters
This decision is a significant statement on the participatory philosophy underpinning the Assisted Decision-Making (Capacity) Act 2015. It confirms that Irish courts exercising jurisdiction under Part 5 of the Act are not merely conducting a welfare inquiry about the relevant person; they are required to treat that person as an active participant whose voice, will, and preferences must be placed before the court so far as practicable. The judgment draws a clear distinction between the function of an independent assessor — valuable as it is — and the distinct statutory obligation to facilitate the relevant person’s own participation, and signals that conflating the two may amount to a fundamental jurisdictional defect rather than a mere procedural irregularity.
The case will be closely watched by practitioners working under the 2015 Act, particularly given that the “court friend” mechanism under sections 36 and 100 has not yet been fully commenced. The judgment highlights the resulting lacuna and implicitly calls attention to the need for courts and practitioners to identify alternative lawful means of ensuring that relevant persons — including those with complex communication needs — are not rendered passive objects of capacity proceedings.