Judge: Holman J
Citation:  EWHC 2373 (COP)
Summary: This case concerned two brothers, GG (aged 39) and RG (aged 38), with moderate learning difficulties. By the end of the final hearing all parties accepted the expert evidence before the court that GG and RG lacked capacity to make decisions about their residence, care and contact, as well as capacity to marry and consent to sexual relations. Both brothers had been living in separate accommodation with a package of care arranged by the local authority for some time and in the end there was no challenge to them continuing to reside away from their mother, SKG, and other brothers, with provision for regular contact with their family. Their father, MSG, had passed away some time ago and was a very prominent figure in the Sikh community.
The only issue upon which the court was required to adjudicate related to the status and continuation of the marriage of RG and SK. Their marriage was arranged by MSG and the father of SK and took place in India in March 2009. RG returned to England approximately ten days after the marriage and SK came to England in March 2010.
SK’s case was that she did not know of the extent of RG’s difficulties at the time of their marriage but felt committed to him and does now love him. She claimed that it would be impossible in her culture and religion for her ever to marry anyone else, and that if she were divorced, or her marriage was annulled, she would be ostracised in her community. Mr Justice Holman noted that she is currently allowed to remain in the UK but is not allowed any recourse to public funds, and works very long hours, for low wages, as a fruit picker and in similar rural labouring tasks. He described her position as a tragic one. SK herself said her life had been ruined by those who had arranged the marriage but implored the court not to take any steps to bring it to an end.
At the outset of the hearing SK sought permission to have a sexual relationship with RG but her counsel conceded, on the basis of the expert evidence, that RG lacked capacity to choose whether to agree to sexual touching. As such, under section 30 of the Sexual Offences Act 2003, she would commit a serious criminal offence if sexual relations took place. Holman J declared that it was in RG’s best interests for contact between SK and RG to be supervised to the extent necessary to ensure that there is no sexual touching between them.
In relation to RG’s capacity to marry, there was expert evidence before the court that RG lacked any understanding as to what marriage is, or what it involves, and that it was highly likely that he lacked capacity at the time of the marriage in March 2009. This was uncontested and Mr Justice Holman made declarations accordingly.
The local authority sought an order that it was in RG’s best interests for the court to grant the Official Solicitor permission to issue a petition of nullity on his behalf and to seek to obtain a decree of nullity. They argued that the marriage should be annulled both in RG’s best interests and also for reasons of public policy, recognising that RG could not have been lawfully married within this jurisdiction at the time the marriage took place. A number of incapacitated adults had been the subject of arranged or forced marriages within the area of the local authority and there was felt to be a need to send a strong signal to the Muslim and Sikh communities that arranged marriages, where one party is mentally incapacitated, will not be tolerated, and that the marriages will be annulled.
Holman J held that there was no scope within the applicable statutory framework for a policy based decision. The Matrimonial Causes Act 1973 places issues of capacity to consent to marriage in section 12, rather than section 11, with the consequence that such a marriage is voidable rather than void. As such, parties to the marriage have discretion as to whether to bring the marriage to an end. As RG lacked capacity to make that decision, it fell to the Court of Protection to make that decision in his best interests, pursuant to s 1(5) of the MCA 2005.
In considering the best interests of RG, Holman J took into account RG’s wishes, insofar as they were ascertainable, to remain married to SK and not to petition for a decree of nullity. Under s 4(6)(b) and (c) of the MCA 2005, Holman J also took into account RG’s beliefs and values: “Since RG has had lifelong learning difficulties, it is difficult to ascertain or discern his beliefs and values. He has, however, some awareness of his being a Sikh, and does, in a simple way, participate in some of the practices and observances of that culture. If he had had the capacity to contract the marriage it does not seem likely that he would have wished to bring shame and ostracism on his wife by ‘divorcing’ her or seeking to annul their marriage. To that very limited extent only do I take into account at all the position of Mrs SK.”
The local authority were able to identify few positive benefits from annulling the marriage or dis-benefits from permitting it to continue. Holman J accepted that there was animosity between SK and RG’s mother, but did not consider that was a sufficient reason to annul the marriage and exclude SK from his life, when he gained at least as much pleasure from his relationship with his wife as from that with his mother. Equally, although certain legal consequences may flow from the continued status of SK as RG’s wife, including inheritance rights, and a right to be consulted, as nearest relative, under the Mental Health Act, Holman J noted that these rights can be displaced if it is appropriate to do so.
The position of the Official Solicitor changed shortly before the hearing and he submitted on behalf of RG that there was no benefit to him in annulling the marriage. Holman J agreed with this and stated that he was not persuaded that RG’s best interests require or justify that his marriage is annulled.
The judgment deals briefly with whether it would be appropriate for the Court to declare that the marriage of RG and SK is not recognised in England and Wales, following the judgment given by the Court of Appeal in KC & Anor v Westminster City Council  2 WLR 185. The local authority in this case did not ultimately pursue the declaration of non-recognition at the hearing as no formal application had been made under the inherent jurisdiction at that time and it was accepted that there was a need for further evidence on the question of RG’s domicile before the Court would be in a position to decide this issue.
In the course of his judgment Holman J referred to the recent case of XCC v AA & Ors  EWHC 2183 (COP), in which Mrs Justice Parker directed that the Official Solicitor should issue a petition for nullity and declared that the marriage in question was not recognised in England and Wales. He distinguished that case on the grounds that there was no contact of any kind between the incapacitated person and her husband and there did not appear to have been any issue as to domicile or the relevant law as to capacity.
Comment: Holman J stressed that this case is highly fact specific and that he did not intend to indicate any “policy”, precedent or guidance as to any other case. Nonetheless, the judgment will be read closely by those with an interest in the marriage of incapacitated adults, particularly given the small number of reported cases on this issue.
The case (as with XCC) underscores the importance of local authorities acting swiftly to prevent marriages of incapacitated adults taking place abroad, whether by application for a forced marriage protection order or to the Court of Protection. Where a marriage has taken place, there is clearly a duty on local authorities to bring cases such as this before the Court of Protection and careful consideration will need to be given to the best interest questions that arise.