Judge: Parker J
Citation:  EWHC 3622 (Fam)
Summary: With thanks to Andrew Bagchi for bringing this our attention, this complex case concerned a woman, PM, with a significant global learning disability, who was married (first under a Muslim marriage ceremony and then in a Register Office) to a Pakistani man whose immigration status was under question. The woman gave birth to a child, B, and the local authority, YLA, brought both care proceedings in relation to B and COP proceedings concerning PM. In the care proceedings, Parker J approved a plan for PM, MZ and B all to go together to a parent and baby foster placement. The COP proceedings were brought on the basis of significant concerns as to PM’s capacity to marry and to consent to sexual relations (and in light of those concerns, the foster placement plan was approved on the basis that PM and MZ were not to share a bedroom). An independent psychologist, Dr Joyce, was commissioned to produce an expert report addressing PM’s capacity in various domains; it was agreed that no final planning could take place for B until capacity issues were decided, and at the forefront of the Court’s concerns was the question of whether PM could live with MZ.
Discretion to make a declaration as to capacity
Shortly before the hearing listed for March 2013 to determine PM’s capacity, applications were made on behalf of MZ and the Official Solicitor on behalf of PM effectively to abandon the hearing, essentially on the basis that it was not in PM’s interests for any declarations be granted, because she wanted to live with MZ and be with B. It was submitted that the Court had a discretion as to whether to make any declaration relating to capacity at all because it might not be in PM’s best interest for any such declaration to be granted.
Parker J refused the applications, primarily on the basis that the hearing had been listed on the basis to determine PM’s capacity in various domains, after which the parties and in particular the local authority could take stock. She proceeded to hear evidence including from Dr Joyce. The cases for both MZ and PM remained that the Court should not, at least not at that stage, make declarations as to PM’s capacity in respect of sexual relations, marriage or residence. Particular emphasis was placed upon what were said to be PM’s wishes and feelings and the negative impact upon her of being separated from MZ and her baby. By analogy with the guidance to CPR r.40.20 (governing the making of declarations in the High Court) in the White Book, it was also submitted on behalf of MZ that a relevant consideration was whether making the declaration would serve any useful purpose.
Parker J therefore embarked on a detailed analysis both as to the discretionary nature of the power to make declarations under s.15 MCA 2005 and to the factors going to the exercise of that discretion. She concluded that:
Parker J did, though, go on to consider the position if she did have a discretion, and concluded clearly that this was a case where she would decline to make a declaration on the basis of wishes and feelings or of PM’s welfare. In so doing she:
Having heard detailed evidence, set out at length in the judgment, Parker J made declarations that PM lacked:
Both these declarations were made on an interim basis on the basis of the evidence from Dr Joyce as to the possible potential for improvement with further education (para 74). She had reached them prior to the decision of the Court of Appeal in PC & Anor v City of York Council  EWCA 478, and made clear in an supplementary section of the judgment that she considered the same result obtained following the approach set down in that decision (as a side-note, it seems that she considered PC to be authority for the proposition that capacity to consent to sexual relations is act-, not partner-specific (para 179(ii))).
Parker J also concluded, also an interim basis, that PM lacked the capacity to decide where to reside and concluded – “with a very heavy heart” (para 172) that she could not authorise PM living with MZ independently pending the consideration of further detailed plans for her residence and care arrangements.
It then became clear in further developments detailed in the judgment that any pretence that it was or could be a functioning marriage had evaporated, and MZ had abandoned any plan to seek to live with PM. It further appeared that further education as to sexual matters was unlikely to improve her capacity and might, indeed, make her more vulnerable by exposing her further to sexual terminology and ideas, particularly if she was not living with her husband.
In a supplementary section of the judgment which, strictly, stands as obiter, Parker J examined in detail the proposition that she had previously set out in XCC to the effect that a marriage with an incapacitated person who is unable to consent is a forced marriage within the meaning of the Forced Marriage Act 2007. The police, it appears, had taken the view that this analysis was incorrect, and Parker J invited submissions from the parties, which were provided in agreed form. It is not necessary to do more here than set out her conclusions in this regard that if a person does not have capacity to consent they cannot give the requisite full and free consent, such that “in cases of an incapacitous individual, the reality of consent is already absent, and that if P lacks capacity this renders the marriage involuntary, in contrast to Lord Lester’s word ‘voluntary’” [used in introducing what became the 2007 Act] (see para 214). Such a marriage would therefore be ‘forced’ within the meaning of the 2007 Act.
The duties upon Registrars
The evidence before Parker J showed that the marriage that had taken place at the Register Office had taken place in troubling circumstances. “There were two medical opinions, one of which, provided by the local authority, was carefully and rigorously analysed and argued, and stated that PM lacked capacity… The documents provided by the Registrar’s office are peppered with concerning comments about Mr S’s aggression and persistence, and PM’s demeanour and vulnerability. The overwhelming concern was that MZ was marrying PM for a visa, thus communication with the UKBA, yet the Registrar accepted without challenge almost helplessly it seems, the bare assertion that this was not the motive for the marriage” (para 229).
Parker J went on to consider in some detail what, if anything, could be done to prevent such problems arising again. She indicated that she considered that protection might have been effected by a Forced Marriage Protection Order (‘FMPA Order’), which could be applied for (without leave) by a local authority or (with leave) by a police force. Whilst she expressed herself sure that if a declaration of a lack of capacity to marry under s.15/48 MCA 2005 was served on the Office of the Registrar General and/or a Register Officer, such order would be respected even without an FMPA Order, it might be necessary, in future, to decide whether a FMPA Order could be made, if necessary, against the Registrar General.
Comment: The question of capacity to consent to sexual relations is shortly to be revisited by the Court of Appeal, and we hope that they will give clarity one way or another as to exactly how the test is to be applied.
This decision, though, is of particular interest for the detailed consideration given by Parker J to the role of declarations as to capacity and the very clear distinction she draws between such declarations and those relating to best interests. For our part, we have some doubts as to whether the court has no discretion to make a declaration as to capacity given the clear wording of s.15 MCA 2005, but we would certainly agree that the factors going towards whether such discretion should be exercised are – and should be – different to those going towards the discretion regarding the making of declarations as to best interests. Capacity is a jurisdictional question and is therefore in an entirely different conceptual category to best interests.
Parker J’s detailed and extensive commentary on both forced marriages and the duties upon Registrars picks up on the themes already developed by Bodey J in A Local Authority v AK & Ors  EHWC B29 (COP), and reinforce the position that local authorities – and Registrars – must be extremely astute to ensure that proper steps are taken to prevent marriages being entered into where, on a proper analysis, they should be considered not just incapacitous, but forced.