Mental Capacity Case


Parker J
[2013] 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:

  1. On a proper analysis, whilst s.15 MCA 2005 was framed in discretionary terms, she did not have any true discretion as to whether make a declaration regarding PM's capacity (para 110);
  2. Wishes and feelings, together with the obligation to respect for private and family life under Article 8 ECHR, are relevant to the best interests test, rather than to capacity – it is not an invasion of private or family life to declare that a person lacks capacity in any particular respect (para 111);
  3. The purpose of a declaration is to engage the powers of the Court of Protection. If a person lacks capacity then it is necessary and proportionate and has a use to grant a declaration that that is the factual position. The court's discretion in respect of best interests declarations depends on the assessment of best interests. That is not an unfettered discretion. The court has to apply the statute. However, the question of whether it is in the best interests of P is not a relevant consideration in deciding whether to make a declaration that PM lacks capacity (para 113);
  4. Applying the dicta of Ryder J (as he then was) in Oldham MBC v GW and PW [2007] EWHC136 (Fam) [2007] 2 FLR 597 (to the effect that "[a] judge in the Court of Protection – may feel drawn towards an outcome that is more protective of the adult and thus, in certain circumstances, fail to carry out an assessment of capacity that is detached and objective. On the other hand, the court must be equally careful not to be influenced by sympathy for a person's wholly understandable wish to return home"), Parker J held that she had to decide on capacity in order to decide whether PM needs protection. She emphasised that she did not take into account in making a finding as to capacity that PM might need protection. "If she needs protection I have to look at her welfare needs: over all, and taking into account her wishes and feelings, but without being bound by them" (para 115).
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:
  1. Accepted that PM would experience stress and anxiety if she cannot live with MZ and the baby, but did not accept as was being urged on her by MZ that she had truly found contentment and fulfilment or that she will do so in the future. She did not accept that PM's life had improved since leaving her family home. Parker J considered that she would be put at risk if she lived with MZ in the community, noting that her "'feeling of being supported, protected, loved' as it is put, is not based on reality" (para 124);
  2. Rejected the proposition that there was no purpose in a declaration of incapacity because it was very unlikely that the Official Solicitor would wish to seek the court's authority under section 18(1)(k) MCA 2005 to present a nullity petition, on the basis of PM's best interests. Parker J noted that "If this marriage falls apart, or if I were to make the findings as to motivation sought by the authority [which were strongly adverse to PM], or if there was harm asserted to PM, he might wish to do just that. If a final declaration is made as to incapacity and that it is not in PM's interests to live with MZ, then he might also think in her interests not to be tied to a limping marriage: or to consider that annulment might be better for PM than to be divorced by MZ's petition: which I perceive that he may very well want to do at some time in the future." She also noted that in XCC v AA and others [2012] EWHC 2183 (COP) the Official Solicitor was reluctant, in a case of very gross incapacity to marry, to present a nullity petition on DD's behalf, but eventually agreed to do so after a further hearing when Parker J had made a declaration of non-recognition (paras 131-3);
  3. Held that Re MM (an adult) [2007] EWHC 2003 (Fam) [2009] (in which Munby J as then was) had highlighted the need for the court to only exercise its protective powers where there was a need to protect a vulnerable adult from abuse was not authority for the proposition that the court should not make a capacity declaration because it will then have to make a best interest declaration. As she noted, "[t]he whole point of a best interests declaration is that it weighs up the alternatives. Nor is it authority for the proposition that wishes and feelings as asserted should be followed or that the incapacitous person should be left in risky situation as opposed to public care. I have identified the risk. It is not fanciful" (para 140);
  4. Held that, if a person is not able to consent to sexual relations, then it cannot be in their best interests to have sexual relations (para 141);
  5. Noted, finally, that she did "not consider that the making of a declaration of incapacity in respect of PM will cause her any distress at all. She would not understand it. It is the consequences, if I make a declaration that she is not to live with him or have sexual relations with him, (and probably the former) which will cause distress, quite possibly grave distress. She is placed in this position though no fault or agency of her own. She is the victim" (para 145).

Having heard detailed evidence, set out at length in the judgment, Parker J made declarations that PM lacked:

  1. capacity to consent to sexual relations, applying the issue-specific test set out in D Borough Council v AB [2011] EWHC 101 (COP) by Mostyn J, i.e. that the requirement is an understanding of the mechanics of the act; that there are health risks involved; and that heterosexual sex might result in the woman becoming pregnant (paras 148-9); and
  2. capacity to marry (including at the time of her marriage) because (i) because she could not consent to sexual relations and (ii) she did not understand the obligations and responsibilities of marriage, and was unable to weigh up the options: paras 150-2;
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 [2013] 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.

Forced marriage

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 [2012] 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.