Luton Borough Council v (1) SB (2) RS (by his litigation friend, the Official Solicitor)

Judge: High Court Family Division (Hayden J)

Citation: [2015] EWHC 3534 (Fam)


RS was a 25 year old man with an intellectual disability and autism spectrum disorder. He lived with his mother (SB) and six of his seven siblings.

Proceedings were commenced by the local authority seeking a Forced Marriage Protection Order. The application was designed to forestall an anticipated marriage. However, it subsequently transpired that a marriage between RS and W had taken place in Pakistan. The proceedings were reconstituted under the inherent jurisdiction of the High Court.

The issues included:

  • Did RS lack capacity to consent to marriage?
  • Did RS lack capacity to consent to sexual relations?
  • If RS lacked capacity to consent to marriage and/or sexual relations, should the court exercise its discretion under the inherent jurisdiction to make a declaration that the marriage was not recognised at English law? Applying the tests in Re M (An Adult) (Capacity to Consent to Sexual Relations) [2015] Fam 61, and Re E (An alleged patient): Sheffield City Council v E [2005] 1 FLR 965, to the facts, Hayden J had little difficulty concluding that RS lacked capacity to marry and consent to sexual relations, and that there was no real prospect of RS gaining the capacity. Following his findings that RS lacked capacity to consent to marriage and sexual relations, Hayden J was invited to make a declaration of non-recognition of the Pakistani marriage. Hayden J gave careful consideration to various competing interests. In respect of M, he said:

Having heard all the evidence in this case I am convinced that the objective of this marriage was to provide RS with care and security for the remainder of his life. M, in particular, had been shocked and disturbed by her son’s isolation and unhappiness in the residential unit. She found it difficult to manage her distress as she told me about this period in her son’s life. As the records at the time reveal, even then, M contemplated marriage as a solution for her son’s predicament. I think that she considered the options for her son’s future and found them, by the standards of her hopes and expectations as a mother, to be bleak.

In respect of W, Hayden J said:

In her evidence to me W was respectful to the family, to her husband and to the Court. I formed the impression that she had made a utilitarian calculation of her own interests in this marriage. From a purely western perspective that might appear to be a critical observation. I do not intend it to be regarded as such. W has different cultural expectations; social priorities which are influenced by her upbringing in Kashmir and by her own understandings of the responsibilities and obligations expected of women in her society. She was articulate in her assertion that she had entered this marriage of her own free will. Despite the highly personal nature of the inevitable and proper questions she confirmed with some robustness, that the marriage had been consummated. She also told me that at the time of her menstruation her new husband had shown sensitivity and forbearance. In short, I have absolutely no sense that she had entered this marriage under duress or in consequence of any abusive pressure. On her part I am entirely satisfied that she gave free consent.

However, the decisive factor in granting the declaration sought was RS’s inability to consent. Hayden J said:

Ultimately however, I have come to the conclusion that capacity, at least in the circumstances here, is an intrinsic, indivisible facet of both psychological and moral integrity. The absence of RS’s capacity to consent either to sexual relations or to marriage ultimately compromises the ability of this couple to forge the mutual and reciprocal commitment which, in my judgement, is an essential component of a marriage, perhaps even universally so.


This judgment demonstrates a careful and sensitive application of the law to the facts. Hayden J echoed the words of Mostyn in D Borough Council v B [2011] EWCOP 101 where he said that the restriction of sexual relationship engages a very profound aspect of an individual’s civil liberties and personal autonomy, and recognised “the development of psychological and moral integrity and relationships with other human beings as key aspects of individual human rights.” Although granting the declaration of non-recognition, and expressing the view that in most cases the court will be required to make a declaration of non-recognition, Hayden J made clear that there may be circumstances in the interests of justice, fairness and respect of individual autonomy where discretion could be exercised against any such declaration.

CategoryMental capacity - Marriage Date


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