A London Borough v BB, AM, SB & EL Trust



Judge: Ryder J.

Citation: [2011] EWHC 2853 (Fam)

Summary: This judgment, determined by Ryder J in the summer, but not available until recently, is a further judgment in the proceedings concerning BB, a woman suffering a number of disabilities, including deafness and a learning disability, who was initially removed from her home following an allegation of assault upon by her mother. An earlier judgment, relating to deprivation of liberty and the interaction with the MHA 1983 was discussed in our August 2010 edition (BB v AM (2010) EWHC 1916 (Fam)).

At this juncture, the Court was asked to make decisions as to (1) BB’s marriage to her husband, MM; and (2) as to her residence (and, related, whether the care arrangements at the placement at which she was living amounted to a deprivation of liberty).

As regards marriage, Ryder J endorsed the agreement of all the parties that it was in BB’s best interests for her marriage with MA to be annulled pursuant to s 12(c) of the Matrimonial Causes Act 1973 on the ground that she did not validly consent to the marriage as she lacked capacity to consent at the relevant time. Ryder J noted that MA had agreed through solicitors to an annulment and accordingly, Ryder J dismissed the prayer in his petition for divorce and allowed the petition to proceed on the basis that the marriage was to be annulled. BB was given leave to issue an application for an annulment pursuant to section 13(4) of the 1973 Act and in exercise of its powers under Part 18 Family Procedure Rules 2010 dispensed with the procedural steps to be taken before the grant of such leave by agreement and in furtherance of the over-riding objective as set out in the Rules. Having regard to requirements of Part 7 of the 2010 Rules, Ryder J directed that the application be listed before a District Judge of the Principal Registry for pronouncement of a decree nisi and that the hearing should be in private pursuant to rule 7.16(3)(d) of the Rules. With the agreement of the parties, Ryder J further gave leave for the proceedings to be treated as an application for a forced marriage protection order and made such an order as being in BB’s best interests.

As regards residence, Ryder J noted, with some asperity, that the allegation of assault could not be proved on the balance of probabilities, and that the material necessary to come to this conclusion had been available almost immediately. He noted (at paragraph 18) that the fact that steps had not been taken to address this situation meant that the allegation had been hanging over the family like a cloud, and that they had in consequence been placed in an adversarial position as regards the more important welfare issues which related to BB.

Ryder J noted that the full evidence was not before the Court (in particular as to whether residence back with BB’s family was an option); however, holding that the arrangements at her placement amounted to a deprivation of liberty, he held that they were justified and residence at the placement was in her best interests on an interim basis pending a further review in 6 months’ time. He set out a detailed exegesis of the further investigations that he required to be carried out in the interim.

Comment: Whilst not the subject of controversy, as it was agreed as between the parties, the approach adopted to the annulling of the marriage between BB and MA was a pragmatic one which it is useful to have set out in full as a template for similar cases in future.

One further point of interest is the short shrift given to the evidence of a cultural expert jointly instructed by the parties. Ryder J expressed no difficulty with the expert’s evidence as to the cultural implications of BB’s marriage and the ways in which that ought to be brought to an end; or BB’s cultural and religious background and the importance of the same to her identity. However, Ryder J expressed difficulty as to the hypotheses proffered by the expert about BB’s family and the community in which they lived. He noted that the evidence given in this regard was well within the knowledge of the court (and that this “might of course have suggested to the parties that the evidence was neither necessary nor admissible” (para 23); it was not cross referenced to the attitudes and practices of this particular family or the community in which they lived because the expert was not instructed to perform that task). In the absence of any instruction to the expert to undertake that work, Ryder J found that that evidence remained purely hypothetical.

CategoryBest interests - Residence, Article 5 ECHR - Deprivation of liberty, Mental capacity - Marriage Date

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