Hull City Council v KF
Summary
KF wanted to spend one last night with her long-term partner, days before he was due to be imprisoned for causing her grievous bodily harm. Given the absence of bail conditions, whether this could happen depended upon her capacity to make the relevant decisions and, if not, whether unsupervised overnight contact was in her best interests.
KF was 34 with a condition of agenesis of the corpus callosum, which caused her to have moderate learning disability, with an IQ of 49. Her life expectancy was limited to 3-18 months as metastatic breast cancer had spread to her liver, lungs and spine and, despite chemotherapy, the prognosis was poor. KF had previously given birth to two children, who were no longer in her care.
Her partner previously encouraged her to have sex with other men. Angered that one of those men had anal sex with her, he ‘fisted’ her which caused tears to her vagina requiring hospitalisation, two units of blood and suturing without which she could have died. They separated but she returned to live with him and further violence was perpetrated. Social services were also seriously concerned about him exercising coercion and control, including taking her money, and overbearing her decision-making. KF moved to a care home placement. KW pleaded guilty to committing GBH and was soon to be sentenced but was on unconditional bail at the time of the application.
KF met remotely with the Judge, expressing her hope that her “wishes come true” to have some alone time with her partner (‘KW’) in private in a hotel room. She also stated to the expert:
16…“I have had two children. I can have sex with KW. If that's what I want, that's what I will do. No-one can stop me. I'm sick of this. You can tell the judge that too. It's my decision. I'm being treated like a child… I can make my own decisions. I want my freedom. I can make a decision about sex."
Capacity
The first issue for Poole J was to carefully identify the matter(s) requiring a decision. It was possible to frame the decision to spend unsupervised overnight time with KW as a contact decision or a sexual relations decision and both needed to be considered. At para 24 his Lordship observed that, “It is difficult to see how a person who lacks capacity to decide to have contact with a specific person could have capacity to decide to engage in sexual relations with that person. Sexual intimacy is a form of contact with another or others.” And it was clear that KF lacked capacity to decide on contact with her partner.
In any event, the application for unsupervised overnight contact was person-specific and it was quite logical for her to have capacity to engage in sexual relations on a general basis, whilst lacking such capacity specifically in relation to her partner:
“24 … KF does not want to make decisions about having sexual relations in general, she wants to have (the opportunity for) sexual relations with KW and for that to occur within the next few days, prior to his likely incarceration. Information relevant to that specific decision includes information about the history and nature of the relationship between KF and KW. KW has been violent to KF in that relationship and has perpetrated sexual violence against her. KF is at specific risk of harm or assault by KW including in a sexual context. That risk is a foreseeable consequence of KF's decision-making about having sexual relations with KW. Dr Mynors-Wallis had already advised that KF cannot retain information about KW's past assaults on her or the risk that KW will assault her again. That is information relevant to the matter for decision, particularly given the nature and circumstances of the most serious assault by KW on KF, which was a sexual assault. Dr Mynors-Wallis also advises, that KF cannot weigh or use the foreseeable consequences of deciding to have sexual relations with KW, which include the risk of assault from him as has happened in the past. Dr Mynors-Wallis' previous report approached the matter for decision as general – the capacity to engage in sexual relations. He has now considered capacity to decide to engage in sexual relations in a person-specific context and, unsurprisingly given his previously expressed opinions, concludes that KF lacks capacity to decide to engage in sexual relations with KW.
It was important for the Court not to approach questions of capacity in silos: “I would regard it as incoherent to find that KF did not have capacity to decide to meet KW alone for a meal in a restaurant but did have capacity to decide to have sexual relations with him. Decisions about capacity must be coherent and allow those responsible for caring for and safeguarding KF to make practical arrangements”. [24] Poole J went on to emphasise:
24…In cases in which it has been determined that P lacks capacity to make decisions about contact with a past or potential partner because of the risk of harm to P or by P, and it has been determined that P has capacity to decide to engage in sexual relations, consideration should be given to P's capacity to decide to engage in sexual relations with that partner. Failure to do so could result in incoherent capacity decisions. It was right to consider capacity to engage in sexual relations as a person-specific issue in this case.”
Given her inability to retain, weigh and use the additional relevant information specific to engaging in sexual relations with KW in particular – namely, that he sexually assaulted previously which was very harmful, the risk of a further assault and/or harm to her, the degree of that risk, the consequence if it should materialise, and the means by which the risk could be mitigated – it was declared that she lacked capacity to make the decision (para 26).
Best interests
If unsupervised overnight contact did take place in a hotel room, any sexual intercourse would be rape given her inability to consent. On the eve of his possible incarceration for assaulting her, her partner’s mood might well be unpredictable, he might again become angry and take that out on her. There was no adequate means of ensuring that she could be kept safe and she could not be relied upon to seek support to prevent sexual relations taking place. Moreover, it would be unreasonable to expect support works to enter the hotel room to intervene. In the circumstances, any such contact was not in her best interests. Instead, it was in her best interests to continue to have supervised contact during the day and in a public place, such as a park, café, or restaurant, where they could kiss and cuddle, with support works supervising nearby.
Comment
The facts and judgment in this case illustrate the more nuanced approach to sexual relations that can be taken following the Supreme Court’s decision in JB. Whilst KF was able to engage in sexual relations on a general basis, she was unable to do so in relation to KW. That is because there was much more at stake for her to comprehend, given the reasonably foreseeable risks and consequences that he presented.
The approach taken – to focus on contact first and then a person-specific take on sexual relations – is sensible and focused on ‘the matter’ about which a decision was needed. It provides a much more individualised perspective, sensitive to the particular risks. To do otherwise risks a greater, unnecessary intrusion upon a person’s autonomy. For example, to silo capacity to have contact ‘with others’ and to engage in sexual relations in general runs the risk of greater interference as compared with the more targeted approach taken here. In a case of this nature, where the reasonably foreseeable consequences did appear to focus on KF and KW’s relationship and the risked he posed to her, to focus on capacity to decide on contact with person X, and if sexual relations is a reasonably foreseeable consequence of such contact, to then take a person-specific approach in that latter regard. Whilst proxy consent to sexual relations cannot of course be given on a best interests basis, support scaffolding can be put in place on a best interests basis so as to create where possible a safe environment for contact.
