A Local Authority v AK & Ors

Summary: This case concerned the issue of capacity to marry. AK had sustained brain injuries which caused him to have severe memory problems. At the time of the hearing, he was married to BK, who had been his girlfriend prior to his second head injury. BK said that although they had split up shortly before the second head injury, AK had subsequently expressed a wish to marry her. BK did not get on with AK's family, and disagreed with the views of professionals that AK lacked capacity to decide to marry. She arranged to marry AK in secret, taking him out of the care home where he resided in order to do so. The registrars did not identify any difficulties with AK's mental capacity, and the ceremony took place without incident.

The court was asked to determine whether AK had had capacity to marry at the time of the ceremony. The local authority and AK's brother, supported by the Official Solicitor, argued that he did not. BK argued that he did.

Bodey J affirmed the pre-MCA approach to capacity to marry set out in Sheffield City Council v E & Another [2005] 2 WLR 9 as being consistent with the MCA, and found that AK failed the final aspect of the functional test - the ability to use and weigh information. The judge noted (at para 19) that 'because for most people, marriage is to be regarded as a fairly straightforward concept (compared for example with litigating, or with many medical procedures) one would not normally need to spend too much time on assessing an individual's ability to 'understand, retain, use and weigh' the information about marriage which is referred to in Sheffield. Nevertheless, there will occasionally be cases where the degree and/or nature of the individual's impairments does make it necessary to do so, because for him or her a decision about marrying is not actually a simple one. This is one such case.'

The judge annexed to the judgment revealing extracts from conversations with AK in which he was asked whether he was married, and if so to whom, which clearly demonstrated that he had no consistent understanding of his marital status, or the nature of his relationship with BK. The court held (at para 51) that:

'Even if, and accepting, that [AK] understood on an intellectual level the concept of a marriage and the status of being husband and wife (which is in any event doubtful) he was, in my judgment, disabled from adequately using or weighing that information (a) by the fact that the choice would not have been put to him neutrally and (b) by his inability, as shown by subsequent interviews (his condition having remained much the same throughout) to know or remember, except for extremely short periods of time, his own marital status and/or the identity of his spouse. The reference to the retention of information for 'a short period' in S3(3) of the Act cannot seriously be interpreted to mean, in the context of the lifetime commitment of marriage, for so short a period as AK is able to recall whether he is married at all, or reliably (when he does remember) to whom. That evidence from interviews with AK to which I have just referred, admittedly relates to after the marriage; but it is clearly also a reliable indicator of AK's ability to retain information before it. Further, as Miss Butler-Cole submits, AK's thinking was distorted by false beliefs about marriage (for example about his getting 'holiday pay' and being 'able to control' his money) such that any weighing up by him of his wishes about marriage is likely to have been on false premises.'

By way of coda, the judge also noted (at para 53) that there was no guidance in the Registrars' Handbook regarding the MCA 2005 and assessment of mental capacity, and said 'It may be that those responsible for the handbook would wish to consider the advisability of incorporating a paragraph on this, perhaps referring to the basic s.3 requirements and summarising the information necessary to be understood and weighed up, with a note on what to do where an individual's mental capacity to marry may be in real doubt.'

Comment: This is, to the authors' knowledge, the first reported case, post-MCA 2005, in which an individual has been deemed to lack capacity after a marriage has occurred (outside the context of arranged and/or forced marriages). It is of particular interest for its confirmation that the ability to use and weigh information remains a relevant part of the test for capacity in marriage cases, notwithstanding the comments of Munby J (as he then was) in the Sheffield case, which could be read as suggesting that this element of the test was not relevant.

This decision stands together with the decision in A, B and C v X and Z [2012] EWHC 2400 (COP), in which Hedley J also associated himself with the approach of Munby J in Sheffield, but reached the conclusion that the parties seeking to establish that P lacked capacity to marry had not made out their case. Permission was granted to appeal that decision; as at the time of writing no further details are available of the progress of such appeal.