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Judge: Roberts J
Citation: [2021] EWCOP 54
Summary
How does coercive control impact upon decision-making? And what can – and should – the courts do when the victim of coercive control cannot countenance an existence where the perpetrator is not an integral part of their life? These were the issues at the heart of this decision.
The case concerned BU, a 70 year-old woman with a diagnosis of vascular dementia. She had formed a relationship with a man nearly 20 years her junior, NC, which as described by Roberts J in the introduction to her judgment had “become, for BU, a central and crucially important part of her life and, as she sees it, pivotal to her emotional wellbeing and happiness.” Her daughter, as a representative of her wider family members, brought proceedings “because of their increasing concerns about the extent to which she is vulnerable to harm as a consequence of that relationship. Those concerns flow from their observations, confirmed by the expert evidence in this case, that the relationship which BU has with NC is characterised as one of coercive control exerted by him in several aspects of her day-to-day life and in particular in relation to the management of her financial affairs.” NC – who acted as a litigant in person – denied that he had acted in any way to harm BU or expose her to detriment, financial or otherwise: as Roberts J summarised his position “[h]e believes that this court has no role to play in relation to her decision-making since he maintains that she is capacitous in her own right and able to make choices and decisions for herself.”
As Roberts J reminded herself at the outset of her judgment (in paragraph 2), “[i]n circumstances where personal autonomy and life choices are a central aspect of the human rights which this court is bound to uphold and respect, it is only in limited circumstances where it can or should intervene.”
By the time the matter came before Roberts J, final declarations had been made that BU lacked capacity to make decisions in relation to her property and financial affairs, and a deputy was appointed to manage her affairs. BU’s daughter sought from the Court of Protection a declaration that her mother lacked capacity to make decisions about her contact with others, including NC; an order preventing NC from having further contact with BU (and the continuation of an injunction to this end which had already provided for this for over a year); and an order under the court’s inherent jurisdiction which prevented a marriage or civil partnership between NC and BU or, alternatively, an order pursuant to s. 63A of the Family Law Act 1996 (a forced marriage protection order).
The detailed background to the case is set out in the judgment, but for present purposes of particular importance are: (1) BU’s significant financial resources; (2) NC’s (extensive) history of criminal convictions (including twelve fraud and related offences and fourteen theft and related offences), leading to a 9-year custodial sentence for an offence of dishonesty and blackmail; (3) (in no small part thanks to the determined efforts of BU’s daughter) a police investigation leading to an arrest in relation to his actions in relation to BU, and release on bail that he was to have no contact with BU – a condition that he had breached repeatedly.
Capacity
The position of the parties (bar NC) and the expert evidence was that BU lacked capacity to make decisions regarding contact with NC. Having rehearsed the evidence, Roberts J was clear in her agreement:
Roberts J was equally clear that NC had “engaged on a deliberate and calculated attempt to subvert any independent decision-making on BU’s part” (paragraph 91). She outlined those attempts in detail and found that the test for relying upon similar fact evidence in civil cases was met:
Best interests
Given Roberts J’s conclusions about BU’s capacity, it fell to her to make determinations about her best interests. In the circumstances, there was a binary choice for the court: either to sanction ongoing contact between BU and NC or not:
Roberts J noted (with some apparent regret) that she could not make provision in her order for the provision of such therapy since she had no evidence as to what is needed or who might provide it. However, she proposed nevertheless to include in her order a recital by way of declaration that it was in BU’s best interests for such therapy to be offered to her with a view to helping her to make informed and capacitous decisions about any future contact with NC.
The orders that she proposed to make were therefore as follows:
Forced marriage protection order
On the facts of the case, and especially given NC’s attitude to court orders, Roberts J considered it was necessary to consider, specifically and separately, a forced marriage protection order (which can also encompass a civil partnership). In doing so, it appears that Roberts J proceeded on the basis that BU both had capacity to marry and to enter into a civil partnership (she declined to resolve an issue about the precise breath of the test to enter into a civil partnership). In relation to civil partnership, she made a separate and specific injunction which prevents NC from entering, or attempting to enter, a civil partnership with BU without first obtaining specific permission from this court. In relation to marriage, she followed the “routemap” set out in Re K (Secretary of State for Justice and another intervening) [2020] EWCA Civ 190 as follows:
In terms of marriage and the ‘routemap to judgment’ recommended by the President in Re K, I have already set out my findings in relation to the underlying facts which I have found to be proved on the basis of the civil standard of proof, i.e. the balance of probabilities. With that first stage completed, I turn to stage 2 which is to decide whether or not the purpose identified in section 63A(1) of the FLA 1996 is established. In this case I am entirely persuaded from the foot of those facts that BU requires the protection of the court from any attempt to be forced or coerced into a marriage with NC. As to the balancing exercise required by stage 3, I am acutely conscious that there is a high hurdle to be passed before I should take any steps to override BU’s clearly expressed wishes in this context. Here, I am dealing with the wishes and the future of a woman who has completely lost her personal autonomy as a result of the total subordination of her free will. In these circumstances there are no sufficiently protective factors which could be put in place to reduce or eliminate the potential risks of a forced marriage. BU would have no comprehension that she was not freely consenting to such a marriage and thus the court must take steps to prevent the possibility of that happening. I propose to reflect in that balance a limit on the duration of the order which I propose to make under the 1996 Act and in relation to the prohibition of a civil partnership. Those orders will represent an interim holding position for a period of twelve months whilst further work is undertaken to assist BU in whatever therapy can be arranged. I regard this as an appropriate accommodation between the need to protect BU from the inhuman and degrading treatment which is captured by Article 3 of the Convention and the respect which this court must maintain for any autonomous decision-making of which she becomes capable in the future. In this way I propose to intrude on her right to a private family life to the minimum extent which I regard as necessary to meet the duty under Article 3, but no more. Depending on where we are at that point in time, I would regard it as a sensible precaution to list the matter for review before the expiry of that order.
Transparency
In an important “footnote,” Roberts J made clear that the court cannot and should not make reporting restriction orders which are retrospective in their effect. She also noted that reporting restrictions orders:
110 […] should not be drafted so as to include any prohibition of information which is already properly and lawfully in the public domain. The reasons are so obvious that they probably do not need stating. Accredited journalists and bloggers who attend these hearings as of right cannot be put in a position where they risk being held in contempt of court for publishing information which they hear when that information falls outside any restrictions imposed by the court. In this day and age of mass media communication, information acquires a currency as soon as it is available to a wider audience outside the court room. That is part and parcel of the valuable function which the press and others perform as monitors of the court process. They act as the conduit for public dissemination of the court’s working process and procedures and, as such, they fulfil a vital function in any democratic society. There is always a careful balancing act to be performed when the exercise of that function, engaged specifically by Article 10, is examined against the need to preserve the Article 8 and other Convention rights of the subject of court proceedings. In this case the balance has now been struck but, for the avoidance of any doubt, I make it plain that no reporting restriction order should operate so as to have retrospective effect.
Comment
It is unsurprising that Roberts J described this as a difficult case, nor that she considered that, if (as she did) she acceded to the application, BU would be unlikely to understand why she had been denied the happiness which she sought and which she believed she deserved. It is also unsurprising, in consequence, that she considered that there was “a heavy responsibility on the court to ensure insofar as it can that the outcome of this application, and the reasons for the decision, are laid out in clear and simple terms” (paragraph 88).
Questions of coercive control in the context of those with impaired decision-making capacity have been highlighted previously by Hayden J as being particularly insidious: see Re LW. This case only reinforces how pernicious they can be, and it is (frankly) terrifying to imagine where BU would have been had her daughter not been willing to risk almost all in respect of her relationship with her mother by taking the steps that she did – including bringing proceedings herself.
What is of wider interest and relevance, perhaps, is the way in which Roberts J was prepared to proceed on the basis that BU lacked capacity to make decisions as to contact with NC. A very narrow view of the MCA would (on one view) prevent relational aspects being taken into account – i.e. in effect to pretend that the person is to be removed from the circumstances and their abilities examined in isolation. In the (common law) context of testamentary capacity, capacity is sometimes viewed in this rather abstract fashion: in Simons v Byford, for instance, the Court of Appeal held that “capacity depends on the potential to understand. It is not to be equated with a test of memory” (paragraph 40). Translated to the ‘real time’ analysis required by the MCA, however, such an approach is deeply problematic in any situation where it is not, sensibly, possible to remove the ‘disabling’ influence from the person’s life. BU’s case shows just how wrong that would be in circumstances where the disabling influence of NC remained strong despite the fact that she had not had contact with him for a year. The Singaporean case of Re BKR (not cited in this case, but decided under legislation almost identical to the MCA 2005 in this regard) provides an important – reasoned – discussion of how to proceed in the context of the interaction of an impairment and the disabling influence of another; for an analysis of the ethical considerations in play, entirely consistent with the approach taken by Roberts J, some may find this book of interest. It is very much to be hoped that the approach adopted in this case – i.e. taking a broad approach to capacity but on the basis of a clear understanding that the corollary is that best interests decision-making should be designed, insofar as possible, to secure the true autonomy of P – is one that other judges feel able to adopt in future cases when these difficult cases come before them. It is certainly a framework which appears to meet the difficult ethical dilemmas in play more satisfactorily than the inherent jurisdiction to which judges other have to have recourse in such cases, bereft as it is of any moral compass to guide them as to the approach to take equivalent to the principles under the MCA 2005.
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