Judge: Keehan J.
Citation:  EWHC 3485
Summary: SY was a 19 year old woman with mild to moderate learning disability who was extremely vulnerable. A young man from Pakistan, TK, entered the country on a student visa. It expired and his appeal to remain was refused in June 2011. By then an illegal over-stayer, he began a relationship with SY in August 2011. In January 2012 her carers informed the local authority that she had said that he had locked her in his house when he went to work, that they had been visited by a ‘lawyer’ about a housing application, that they were to marry in six months and that he had taken her to a registry office to obtain a copy of her birth certificate. The carers also reported that they had overheard him speaking to her on the telephone in a controlling and aggressive manner.
A clinical psychologist had concluded that SY was unlikely to be able to make the relevant decisions and, on 24 May 2012, the local authority and the police told the man that, because of her learning disability, she was unlikely to have capacity to consent to sexual relations and marriage and that an offence would be committed. In spite of this, on 10 June 2012 the couple entered into an Islamic marriage ceremony at TK’s property. Five days later, he was arrested for immigration offices and detained by the UK Border Agency pending deportation. That day, he claimed asylum on the basis that he feared he would be killed by his family who disapproved of his marriage to a white British woman. SY was moved to a specialist residential home and an urgent, followed by a standard, DOLS authorisation was granted.
The man’s associates tried to bolster his asylum claim by attempting to enter the residential home to get SY to sign a pre-prepared statement of evidence. But on 17 July 2012 his appeal against being refused asylum was rejected on all grounds, the tribunal judge concluding that their relationship was insufficient to amount to family life under Article 8 ECHR. He had also not given a truthful account and was not a credible witness. Shortly before his deportation in August 2012, he was served with the COP papers but did not respond. However, he maintained telephone contact with SY until her mobile telephone broke in March 2013.
After at least 8 years of particularly difficult and turbulent life experiences, by the time of the final hearing in November 2013, SY was settled and content in her placement. She was enjoying her college course and was being successfully supported to lead a stable and happy life. Final incapacity declarations and best interests decisions were made for her to remain at the home and, were she to abscond, measures to convey her back which might amount to a deprivation of liberty were authorised by the Court. Although she was declared to lack capacity to enter a contract of marriage, she had capacity to consent to sexual relations.
One issue remained: the consequences of the Islamic ceremony. The man’s involvement was “yet another abusive and exploitative episode in [SY’s] life which could have had serious physical, emotional and psychological consequences for her” (para 49). The ceremony had formed the bedrock of his attempt to exploit and take advantage of her to bolster his prospects of staying in the country. However, it failed to comply with the essential requirements of the Marriage Acts 1947-1986. It was conducted in his home rather than in a registered place and by someone who was not a registrar or a priest according to Anglican rites. Nor was the ceremony intended to attract the status of a marriage under English law; it was undertaken to create a marriage expressly according to Islamic laws.
Keehan J was satisfied that this was a non-marriage. However, there was no provision in the Mental Capacity Act 2005 to make a declaration to that effect: a gap remained. In XCC v AA and Others  EWHC 2183, Parker J had invoked the inherent jurisdiction of the High Court in Court of Protection proceedings to make a declaration of non-recognition of a marriage, observing (paras 54 and 85):
“The protection or intervention of the inherent jurisdiction of the High Court is available to those lacking capacity within the meaning of the MCA 2005 as it is to capacitous but vulnerable adults who have had their will overborne, and on the same basis, where the remedy sought does not fall within the repertoire of remedies provided for in the MCA 2005. It would be unjustifiable and discriminatory not to grant the same relief to incapacitated adults who cannot consent as to capacitous adults whose will has been overborne… I am satisfied that once a matter is before the Court of Protection, the High Court may make orders of its own motion, particularly if such orders are ancillary to, or in support of, orders made on application. Since the inherent jurisdiction of the High Court in relation to adults is an aspect of the parens patriae jurisdiction the court has particularly wide powers to act of its own motion.”
Parker J had held that such a decision was not dictated only by considerations of best interests but public policy considerations were also relevant (paras 56-57 and 71-76). In the present case, the Court was accordingly invited to similarly invoke the inherent jurisdiction of its own motion to make a declaration of non-marriage. Keehan J agreed with Parker J’s reasoning and held:
“47. TK well knew that SY had learning difficulties and was a vulnerable young woman. He knew that the police and the care services were extremely concerned about his involvement with SY.
48. I can reach no other conclusion than he deliberately targeted SY because of her learning difficulties and her vulnerability. The courts will not tolerate such gross exploitation…
50. In my judgment it is important for SY that a declaration of non-marriage is made in respect of the June 2012 ceremony. There are also, in my judgment, compelling reasons of public policy why sham ‘marriages’ are declared non-marriages. It is vital that the message is clearly sent out to those who seek to exploit young and vulnerable adults that the courts will not tolerate such exploitation.”
Comment: This decision is significant for at least two reasons. The first is a procedural point but resonates way beyond COP proceedings. In this case, the COP3 form, which provides the initial evidence basis of incapacity to open the courtroom doors, was completed by SY’s social worker. His Lordship observed:
“22. I am told by counsel that it is more usual for the assessment of capacity to be undertaken by a medical practitioner or a psychiatrist. The assessment in this case demonstrates that an appropriately qualified social worker is eminently suited to undertake such capacity assessments. I commend the practice which I hope will be followed in appropriate future cases.”
Coincidentally, this judicial endorsement of social work incapacity evidence reflects the new COP3 which has been reworded to make it clear that professionals other than medical practitioners can complete the assessment (see below). It also reflects the MCA Code of Practice (paras 4.38-4.43) which envisages that capacity is not exclusively within the purview of medical practitioners or psychiatrists.
Secondly, the inherent jurisdiction had never previously been called upon in Court of Protection proceedings to make a ‘non-marriage’ declaration – which differs to ‘non-recognition’ – and the flexibility of being able to do so, of the Court’s own motion in order to avoid unnecessary freestanding applications, is to be welcomed. There are clearly significant public policy reasons for such declarations being made and to declare the legal reality of an emotional situation may also serve the best interests of the incapacitated participant of the ceremony.