A Local Authority v AC & Ors (Consent to Marriage)

Summary[1]

In this case, Hayden J considered an application relating to AC, who was 20 years old and had a moderate learning disability and developmental delay. In 2024, AC visited Pakistan with her family and married in an Islamic ceremony.  The position of AC’s family was that the ceremony had “not been planned in advance of the trip and that AC and the proposed husband formed an attraction to each other when they met and quickly wanted to be married,“ and they “believed that AC had the capacity to make the decision” (paragraph 2).

AC returned to the UK with her family (rather than remaining with her husband). Shortly thereafter, a report was made to the police about the validity of the marriage. A police officer met with AC and took the view that AC “lacked capacity to make ‘her own choice to marry’’” (paragraph 3). Her family were charged with offences relating to causing a person lacking capacity to marry. Forced Marriage Protection Orders orders were made in respect of AC and her siblings.

A finding the AC lacked capacity was “an explicit and necessary constituent of the counts on the [criminal] indictment” (paragraph 10).  The present judgment arose due to requests for capacity assessments in the criminal proceedings:

In April 2025, the defence solicitors in the criminal proceedings indicated that they too had arranged for a capacity assessment for AC which was to take place on 8^th May 2025. In the correspondence between AC’s representatives in these proceedings and the defence solicitors, it was agreed that the assessment in the criminal proceedings would be delayed to enable this Court to consider whether any assessment of AC’s capacity, for the purposes of the criminal proceedings, required the authorisation of this Court. (paragraph 5)

Hayden J decided that he needed to consider “[w]hether any decision for P to undergo a capacity assessment, for the purposes of criminal proceedings, is in itself a best interests decision pursuant to section 4 of the Mental Capacity Act 2005. If so, whether the best interests decision is one which must be taken by the Court of Protection.”

The CPS was joined to the proceedings, and submitted that “[o]rdinarily, no pre-assessment of P’s capacity to consent to participate in an assessment of their capacity is required. Here, the assessment of capacity is being carried out not in order that a best interests decision can be made about P’s care or treatment, or to inform the exercise of statutory duties towards P for example duties to provide care and support.  It is being carried out at the request of defendants in criminal proceedings to support their case in those proceedings.”

Hayden J found that the decision of whether to undergo an assessment of capacity (at least in this context) was a welfare decision, such that “[w]here P lacks capacity, the Court must decide whether undergoing an assessment is in P’s best interests (Section 4 MCA 2005) and is, accordingly, a decision to be taken by the Court of Protection.” While the decision to admit a capacity assessment into proceedings will be one for the Crown Court judge, Hayden J held that the decision of whether to consent to participate in a capacity assessment was one taken under the MCA, although he also observed that “[t]his is not “a capacity assessment per se […] but an assessment specifically focused on the impact on AC of participating in an assessment. There are clearly significant consequences for AC in both outcomes, i.e. whether the assessment takes place or not” (paragraph 9).

Hayden J considered that the following factors were relevant to AC’s decision to participate in a capacity assessment for the purposes of the criminal proceedings:

(i) AC must be able to understand, retain, use or weigh the fact that there are criminal proceedings against CA, DD and BC;

(ii) AC must be able to understand that there has been a marriage between herself and the proposed husband;

(iii) AC must be able to understand, retain, use and weigh the fact that she has been assessed as lacking capacity to marry / engage in sexual relations;

(iv) AC must be able to understand, retain, use and weigh the fact that CA and BC have been arrested and charged with forcing her to be married;

(v) AC must be able to understand, retain, use and weigh the fact that CA and BC’s defence in criminal proceedings is that AC does have capacity to make her own decisions to marry and to enter into sexual relationships [my emphasis];

(vi) AC must be able to understand, retain, use and weigh the fact that the reasonably foreseeable consequence of her not having a further assessment would be that the conclusions of the current assessment would remain in place;

(vii) AC must be able to understand what further reasonably foreseeable consequences might arise if such an assessment did not take place (paragraph 12).

Further:

(i) The nature of the assessment… it would be a retrospective assessment of her capacity to enter into marriage, i.e. in 2024; and

(ii) AC must appreciate that the expert has an overriding duty to the Court, irrespective of who has instructed them. (paragraph 13)

And

AC must understand that the report may be obtained but not disclosed by the defendants (paragraph 14)

Hayden J noted statistics from the CPS that there have typically been between 1-6 prosecutions for forced marriage annually (which may or may not have been based on a person’s incapacity to marry) and thus considered that the decision was unlikely to have a significant impact on the work of either the Crown Court or the Court of Protection.

Hayden J then went on to consider the test for capacity to marry:

17 … [M]any, I suspect most, practitioners consider the case law generates a test which can be overly burdensome and lacking the flexibility required in understanding the different approaches to marriage and / or its obligations in a multicultural society. Moreover, the “obligations of marriage” and what constitutes “the contract of marriage” are not ubiquitous, they are subtle, nuanced and mutable. There is a real danger that an unnecessarily sophisticated test might operate to the disadvantage of those struggling with capacity, requiring them to evaluate issues which many others might find no need to address at all, or even struggle to address, as capacitous adults. Some couples enter marriage with carefully negotiated prenuptial agreements, contemplating the meticulous division of financial assets in the event of divorce. Others give the matter absolutely no thought at all and are entirely ignorant of the applicable law. It requires to be acknowledged that the authorities are contradictory on some key points. I also note that there has been some discussion in the criminal proceedings as to whether a definitive test for capacity to marry exists in law at all.

Hayden J considered that while marriage may vary depending on culture, “the assessment of capacity to marry should not impose overly complex concepts” (paragraph 18); “[t]he terms of a contract of marriage will vary in differing cultures, religions, and now, following developments […], in same sex marriages” (paragraph 23).  However, he considered that “the capacity for ‘marriage’ is, in some respects, conceptually more complex than that of ‘consensual sexual relations’. It engages various mutual obligations, altered legal and, in some circumstances, social status; it is long term and status specific” (paragraph 18).

Hayden J noted that it had now been 22 years since Sheffield City Council v E & Anor [2004] EWHC 2808 (Fam), and

This has been a period of significant social change. In the intervening years, we have seen: Marriage (Same Sex Couples) Act 2013, granting same-sex couples the same status as opposite-sex couples in marriage and divorce; Civil Partnership (Opposite-sex Couples) Regulations 2019, granting opposite-sex couples the opportunity to choose civil partnership rather than marriage should they prefer to do so; Divorce, Dissolution and Separation Act 2020, permitting couples the opportunity to divorce without attributing blame, applying equally to civil partnerships; Equality Act 2010, consolidating anti-discriminatory legislation, and protecting individuals from discrimination on a wide variety of grounds, e.g. sexual orientation, race, religion or belief, age, sex and many others; Children and Families Act 2014, endeavouring to secure the active involvement of both parents in a child’s life following separation of the adults. All this legislation both has an impact on family life and is reflective of changing attitudes to marriage, children and families. (paragraph 20).

Hayden J considered that “it is the fact of the “contract” which is the salient and unifying feature of marriage, not its terms. As Treitel (The Law of Contract) stated, ‘a contract is an agreement giving rise to obligations…’. Agreement is a far more accessible word than contract, but it has very similar meaning” (paragraph 25). Where religious and civil marriages differ in their context and expectations, “it is the fact of the ‘agreement’ itself which requires to be understood, not the fairness of the terms or the wisdom of the consent. This is a secular Court; we are not involved in cultural relativism” (paragraph 27).  Further:

It is no function of a judge to intervene, paternalistically, to protect a party from a marriage which might seem to some to be regressive, patriarchal or counter feminist. I would note, with some diffidence, that arranged marriages frequently generate happy, successful and enduring relationships. Nor is it necessary or indeed appropriate to evaluate P’s understanding of these differences. That would impose an additional test upon her which would not be imposed on an individual whose capacity was not in question. It would sublimate rather than promote her autonomy, an outcome which would be wholly contrary to the philosophy of the MCA. At risk of repetition, I emphasise, what is required is an understanding that an agreement has been made which changes status and is intended to endure. This, I think, captures the essence of the issue in terms which are simple and accessible. (paragraph 28)

In considering other case law, Hayden J elaborated that he did not “consider a couple’s expectations of what marriage might involve is a pre-requisite to establishing capacity. It is the understanding of an agreed change of status from that of an individual to that of a couple which is the universal essence of any marriage” (paragraph 38).

Hayden J considered the proposition that capacity to marry will ‘generally’ include capacity to make decisions around sexual relations, noting that not all marriages are sexual. However, and he considered that it was “vanishingly unlikely” that a person would have capacity to marry, but lack capacity to engage in sexual relations; even if this was theoretically possible, and contrary to the decision of Mostyn J in NB v MI [2021] EWHC 224 (Fam), Hayden J held that the test for capacity to marry must include capacity to engage in sexual relations:

[t]he link between sexual relations and marriage is a theologically consistent tenet of most established religious traditions. Marriage has been, and in many cultures still is, the only gateway to sexual relations. The two have been interlinked for thousands of years. Sex is regarded not merely as something which happens within marriage; rather, it is seen as one of the ways in which the marital relationship may be both expressed and nourished. This may underpin religious perspectives, but it is equally valid in a secular context. Sexual relations are not, for all the reasons Mostyn J discusses, a necessary component of marriage, but in entering into a marriage, an understanding of the nature and mutuality of sexual relations must be. To this degree, it is integral to the construct of marriage and not divisible. The vulnerability of a person who understands, in broad terms, the nature of marriage but lacks an understanding of the essential elements and consequences of a sexual relationship is manifest, particularly where that involves an inability to comprehend the indivisibility of consent to sexual relations. To reason otherwise requires distortion of the objectives and philosophy of the Mental Capacity Act, which is intended to promote the autonomy of the vulnerable, enabling them to take decisions, be they wise or foolish. It would corrode the Act to interpret it in a way which exposed vulnerable and incapacitous adults to abusive situations in which they have no agency to protect themselves (paragraphs 43-44).

Hayden J concluded at paragraph 45 that:

marriage is a formal agreement between two adults in which the fact of the agreement requires to be understood, not the fairness of the terms nor the wisdom of the decision. It requires a simple recognition by two people that they are making a commitment for their lives to be joined together, and that they wish that status to be recognised by others. It is necessary to understand that a formal process is required to enter into marriage and to leave it. Further, and for all the reasons set out above, both parties to a marriage must have capacity to engage in sexual relations, whether they choose to do so or not.

Comment

Capacity to have one’s capacity assessed

We agree with the view expressed by the CPS that ordinarily, a ‘pre-assessment’ of a person’s capacity to decide whether to engage in a capacity assessment (which would appear to be a necessary pre-requisite to make a best interests decision on behalf of the person) is neither necessary nor desirable.

We suggest strongly that the observations made by Hayden J should be limited in the first instance to the very specific context of the case, in which AC’s family wished for her to participate in a report they hoped would be exculpatory – but there appeared to be a clear concern about whether doing so was in her best interests.

There may also be some analogies between the situation under consideration by Hayden J with the situation where the person is ‘voluntarily’ seeking to have confirmation of their capacity, most obviously to grant an LPA or make a will.

However, as a general proposition, we suggest that, both legally and practically, the approach is very different:

• As a matter of legal analysis, the decision of whether to conduct a capacity assessment is not typically taken “on behalf of” the person. Others take the view that one is required so that they know the basis upon which they are discharging a power or function. The decision that they make that they have sufficient grounds to consider the person’s capacity in a specific area or areas that they need to assess it is one for them, not for the person.  It is therefore not a decision covered by the MCA at all.
• At a practical level, it is not feasible to ‘decide’ on behalf of an incapacitous person that they will undertake a capacity assessment: the person either will or they will not engage, and an external decision that would be in their best interests to do so will not change this. Many assessments of capacity proceed with less than complete engagement of the person, and simply have to make findings of what information is available. Whether a capacitous decision or incapacitous preference, engagement in the assessment depends on what the person is willing to do, not what others considers best for them to do.

We are also duty bound to note a ‘pre-assessment’ of capacity to engage in a capacity assessment appears to run the risk of staring down an infinity well – would a capacity and best interests decision need to be taken in respect of the pre-assessment?

Alex has written further about this issue here.

Sex and marriage

It is unfortunate that we now have Tier 3 judgments pointing in diametrically opposite directions as regards the question of whether it is possible to have the capacity to marry without having the capacity to decide to engage in sexual relations.  We suggest that this is an issue which requires appellate consideration; such appellate consideration also should encompass (we suggest) whether it is still correct in light of JB to say that the capacity to marry is a ‘status’ rather than a ‘person’ based test.

 

[1] Tor having been involved in the case, she has not contributed to this note.