Stockport MBC v EKK

Summary

This case considers the question of whether an assessment of a person’s capacity to marry should be carried out on a generic basis or in respect of the particular person it is proposed they marry.  Following the decision of the Supreme Court in A Local Authority v JB [2021] UKSC 52, the local authority argued that the previous approach of assessing capacity to marry in the abstract was wrong. The local authority argued that the Supreme Court had made clear, in connection with capacity to engage in sexual relations which had also previously been treated as a generic or ‘act-specific’ assessment, that in fact the Court of Appeal had got it right in York City Council v PC when they said in relation to decisions about contact and cohabitation, that the information relevant to a decision had to be assessed within the specific factual context.  The Official Solicitor argued that the person-specific approach endorsed by the Court of Appeal only applied to decisions about contact.

Trowell J was clearly concerned that he was determining an issue in the abstract but ultimately decided that he had to be guided by the York decision, in which the Court of Appeal had said that some decisions such as marriage are to be assessed on a generic basis, and that to adopt a person-specific approach would ‘divert the court into an assessment of the intended spouse, rather than P’s capacity’, risking making the test for P a higher one than for people whose capacity is not queried.  The expert in the case would therefore be instructed to answer the question whether P had capacity to make a decision to marry, not a decision to marry her partner.

Comment[1]

It is not possible to tell from the judgment why this issue was thought to be important on the facts of the case.  P had been in a relationship with her partner for 8 or 9 years and the only ‘person-specific’ factor mentioned is that he was suspected by the local authority of mismanaging her finances. (The judgment does not refer to the Tier 2 decision of Re DMM (Alzheimer’s : power of attorney) [2017] EWCOP 32 which found that a further item of relevant information is that an existing Will will be revoked on marriage or include any discussion of whether financial implications are relevant to a decision to marry).

An independent capacity report had already been obtained in the proceedings which concluded that P lacked capacity to make decisions about contact and property and financial affairs (among other matters) but had capacity in respect of sex and marriage.  It may be that the issue of whether capacity to marry should be addressed on a person-specific basis arose because the local authority considered that if the expert had considered person-specific factors a different conclusion would have been reached.

The question of contact will, one assumes, have been addressed by the expert on a person-specific basis in light of York.  The approach adopted by Trowell J might result in a conclusion that P has capacity to decide to marry, but does not have capacity to have contact with her partner.  Adopting a person-specific approach would avoid that counter-intuitive outcome.  It is not at all clear that the York decision should be given the weight afforded to it by Trowell J, as the Supreme Court in JB endorsed the context-specific approach of the Court of Appeal in that case and rejected the Official Solicitor’s attempts to preserve a generic approach (which had also been rejected in York).  The same policy arguments that underpin the generic approach to assessing capacity for sex also apply to decisions to marry.  No doubt this is an issue which will have to be reviewed by the appellate courts, in a case where the approach taken actually makes a difference to the outcome, to determine whether it is correct that marriage is now the only decision where capacity must be assessed on a generic basis.

[1] For some further thoughts on this, including the relevance of Forced Marriage Protection Orders see also Alex’s post about this; for the Irish perspective, see the report on the AB case in the Wider Context section.