Re BU

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:

89. In my judgment the expert and other evidence in this case supports overwhelmingly the conclusion that BU currently lacks capacity to decide whether to maintain contact with NC. There is no evidence at all to suggest that she presently wishes to reduce or eliminate her contact with him (indeed, the evidence points to the contrary). I consider nevertheless that she lacks capacity generally in relation to her contact with NC. The expert evidence, which I accept, is clear. Because of the corrosive and coercive nature of the control which I find NC to have exercised over her, BU has been deprived of autonomous decision-making in this context. Put simply, she no longer has the ability to exercise her individual free will in the context of any ongoing relationship with NC. The degenerative vascular changes in her brain have resulted in a global cognitive impairment which has impacted upon her ability to weigh and use information to the extent that a person with full capacity could. I am not persuaded that she truly understands the nature of their relationship or what a future with NC would hold in terms of an ongoing relationship. I am entirely persuaded that she craves his companionship which she perceives as relieving the intense loneliness and isolation which she has obviously felt outside the loving relationships she previously had with her extended family. She now perceives those family bonds to have been broken as a result of the family’s collective hostility towards NC. I am quite sure that the love which BU has for each of her two daughters remains but it has been subsumed for the time being by the intense need which she perceives to preserve what is in essence her complete dependency on NC. I am satisfied that that dependency shapes more or less all aspects of her life at the present time despite the fact that they have been prevented from having contact with one another for a significant period of time. I suspect that these proceedings have themselves been an important means for BU of preserving that nexus with NC. They will inevitably have reinforced what Professor Dubrow-Marshall has described as the “trauma bond” which binds them together even in absentia.

90. I have no doubt that there have been aspects of her previous contact with NC which have given BU pleasure and a sense of happiness and wellbeing. That said, it is clear that she has closed her mind to the possibility of his motives in that relationship being anything other than benign. Even when presented with clear and overwhelming evidence of NC’s antecedent history and his willingness to coerce, intimidate and blackmail others for his own personal benefit and financial gain, she has been quite unable to weigh and balance those factors in her decision-making. She is blind to future risk as she has been to past risk. She has found herself caught up in the excitement of sharing in NC’s own future plans for property investment (for such I find them to be) without any understanding of the financial risks to which she might be exposed as a result of her financial involvement. She was plainly willing to liquidate a very significant part of her investment portfolio (and thus risk her future financial security) without being afforded an opportunity to evaluate any future risk. I am left in no doubt whatsoever that her decisions in this context were guided and led by NC. He chose to instruct a solicitor to process those financial property transactions who was not previously known to BU. Whilst there is no evidence to suggest that the solicitor fell short of the professional obligations which were owed to BU as a client, it was, in my judgment, a significant example of NC’s ongoing attempts to marginalise her from the ongoing influence of her family.

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:

96. […] no one, including NC, has sought to exclude evidence which may be characterised as evidence which is designed to demonstrate a propensity on NC’s part to behave in a certain way. Furthermore, as I have already said, his previous convictions for offences involving dishonesty, fraud and obtaining property by deception are matters of public record and facts upon which this court is entitled to rely. In relation to his relationship with BU, I have the clearest possible evidence from the expert psychologist instructed in this case that NC exercised both coercion and control over BU throughout the entire course of their relationship which spanned a number of years. To the extent that others have provided the court and/or the police with evidence and information that they have been victims of a similar course of conduct, I take the view that this is both relevant and admissible in the context of assisting me to reach my conclusions in the present case. There is a coalescence of factors in this case which persuades me that BU has indeed been manipulated by NC with deliberate intent to secure for himself a financial benefit.

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:

98. […] Taking into account all the relevant circumstances in section 4(2) and BU’s expressed wishes and feelings as I am obliged to do pursuant to section 4(6) of the 2005 Act, I am in no doubt at all that it is not in her best interests to be exposed to further risk of financial abuse and/or the risk of future manipulation by NC through the control he has exerted through his behaviour to date. I regard it as essential that steps are taken at the earliest opportunity to address and reverse the current estrangement between BU and her family and this is unlikely to happen whilst NC’s corrosive influence over her persists. The immediate need is for BU to receive therapeutic assistance in coming to terms with the loss of this relationship and the reasons why that step through court intervention has been necessary. If a view is subsequently taken that this position needs to be reviewed at a later stage once BU has had an opportunity to engage in therapy, the court can look again at the matter. It will remain to be seen whether NC remains interested in contact with her at that stage and/or whether he will be prepared at that stage to undertake whatever therapy or other work is required of him in order to address his own behaviour.

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:

100. […] a final order providing that there will be no contact between NC and BU. The existing injunction will be replaced with a fresh order which will be expressed to continue until further order but subject to any review which may become necessary at a later stage. I propose to attach a penal notice to that order. NC must be quite clear that any breach or attempted breach of that order may expose him to severe consequences if he is found to be in contempt of court and that may include a period of imprisonment. I am concerned about what appears to be his complete contempt for orders made by the court in these proceedings and I propose to reserve to myself any future proceedings involving an allegation that my orders have been breached. BU should be reassured that, whilst expressed as a final order, this is not a ‘forever’ order. If the position changes in the future, this order can and, if necessary, will be reviewed. What is required at this stage is a period of respite during which she will have the opportunity to engage with those who can help her to understand how NC’s influence has impacted on her life and the risks which his behaviour has created. I do not delude myself that my decision will do anything other than cause significant distress to BU. That has never been my intention and I continue to hope that in time, with appropriate help, she will come to understand the reasons why this step was necessary to secure her safety and wellbeing.

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.

Best interests - Contact, Best interests 24th September 2021