From Mental Health Law Online
MAB's parents had wanted to arrange a marriage for him in Pakistan. It was declared that MAB did not have capacity to marry; therefore any marriage, even if valid in Pakistan, would not be recognised as valid in English law. His parent's undertakings not to take him to a wedding or out of Britain were accepted and his passport was returned. Any assessment of capacity to marry must take into account the question of capacity to consent to sexual relations. This involved a low level of understanding, which must be same in its essentials as required by the criminal law under the Sexual Offences Act 2003.
MAB was 25 years old, suffered from autistic spectrum disorder and mental impairment. He acted by the Official Solicitor as his litigation friend. His Muslim family had wanted to arrange a marriage with his first cousin R in Pakistan, although it was common ground that he lacked capacity to marry (Sheffield City Council v E (2004) EWHC 2808 (Fam) applied). The medical evidence was that he lacked the capacity to consent to sexual relations.
The proceedings were taken by X after the father had expressed an interest in taking MAB to Pakistan to meet R. The medical opinion was that MAB would not be able for a long-haul flight. The main issue was as to what if any relief, and in what form, should be granted to restrain MAB being married or being taken to Pakistan.
The nature and basis of the court's jurisdiction is to be found in three recent cases: In re SK (An Adult) (Forced Marriage: Appropriate Relief) (2004) EWHC 3202 (Fam),  1 WLR 81, M v B (By the Official Solicitor) (2005) EWHC 1681 (Fam),  1 FLR 117 and Re SA; A Local Authority v MA (2005) EWHC 2942 (Fam), and can be summarised as follows:
- The court is exercising an essentially protective jurisdiction, to protect a vulnerable adult
- The court is justified in intervening if there is a real possibility of harm
- Although any marriage would be voidable, prevention is better than cure
- The jurisdiction is founded on the necessity for the courts to take care of those who cannot take care of themselves
- There must be sensitivity to cultural issues
It was declared that MAB did not have, and never did have, capacity to marry.
As MAB has no capacity to marry in this country, even a valid marriage in Pakistan will not be recognised as valid in English law or by English public authorities, including for the purposes of the Immigration Rules. Under the dual domicile rule, a marriage is (normally) invalid when either of the parties lacks, according to the law of his or her antenuptial domicile, the capacity to marry the other. It would be wrong in principle and law, and unnecessary, to declare that MAB does not have capacity to marry "whether inside or outside England and Wales".
Injunctions would not be imposed and MAB's passport would be released. The family's undertakings not to bring MAB to a marriage ceremony or out of Britain (and to serve medical evidence and apply to court if they wished to apply to vary or be released from their undertakings) were accepted on the basis that they were honourable people. In any event, an undertaking is enforceable in the same way as an injunction. Permission would be granted to the parties to disclose the court papers and reports to the FCO, the British High Commission in Pakistan, and various other bodies.
An order would be made allowing capacity to be reassessed after an extended period of contact with R, which contact could only occur if it became feasable for MAB to fly to Pakistan.
Although not specifically mentioned in Sheffield City Council v E, any assessment of capacity to marry must take into account the question of capacity to consent to sexual relations. This is since a sexual relationship (or at least the right to choose whether to engage in sexual activity) is usualy implicit in a marriage and otherwise there is a risk of offences being committed under the Sexual Offences Act 2003. In assessing capacity to consent to sexual relations, there is a low requirement of understanding: "it is enough that she has sufficient 'rudimentary knowledge' of what the act comprises and of its character to enable her to decide whether to give or withhold consent", R v Morgan (1970) VR 337 applied.
Generally speaking, capacity to marry must include the capacity to consent to sexual relations. And the test of capacity to consent to sexual relations must for this purpose be the same in its essentials as that required by the criminal law. Therefore for present purposes the question comes to this. Does the person have sufficient knowledge and understanding of the nature and character - the sexual nature and character - of the act of sexual intercourse, and of the reasonably foreseeable consequences of sexual intercourse, to have the capacity to choose whether or not to engage in it, the capacity to decide whether to give or withhold consent to sexual intercourse (and, where relevant, to communicate their choice to their spouse)?
Structured analysis, as in In re C (Adult: Refusal of Treatment) (1994) 1 WLR 290 and Re MB (Medical Treatment) (1997) EWCA Civ 3093  2 FLR 426, is not likely to be necessary or helpful; the average layman does not require expert advice, in contrast with litigation or medical treatment.
Note that the Mental Capacity Act 2005 does not allow substituted decision making in relation to consenting to marriage or sexual relations.
The following is an automatically-generated list of the pages in Category:Capacity to consent to sexual relations:
- AB v LM (2013) EWHC 1234 (COP), (2013) MHLO 139 — "I find on paying close attention to Dr P's advice, but also considering the contribution of Dr G, that Lisa does possess the abilities required to lead to the conclusion that she has capacity to make decisions about whether or not to have sexual relations. She is somebody who has been full to sexually active in the past; she has had children; she understands the rudiments of the sexual act; she has a basic understanding of issues of contraception and the risks of sexually transmitted diseases. The area in which she is weakest is her ability to understand the implications for herself should she become pregnant. Pregnancy for Lisa would be an extremely serious state of affairs; there can be no doubt about that. But her weakness in that respect does not, for me, lead to the conclusion that her capacity is absent; it argues for her to receive continued safeguarding and help, advice and explanation as and when the question of sexual activity might become a reality."
- A Local Authority v AK (2012) EWHC B29 (COP), (2012) MHLO 166 — "This is an application by a Local Authority for the determination of an issue as to whether a severely brain damaged man ('AK') had the capacity to enter into a marriage in November 2010." [Summary required; detailed external summary available.]
- A Local Authority v K (2013) EWHC 242 (COP), (2013) MHLO 11 — "K is the First Respondent to proceedings brought by A Local Authority (the authority responsible for K's social welfare) for a best interests' determination in relation to issues of contraception for, and sterilisation of, K. The application was issued in July 2012. By that application, A Local Authority sought declarations in relation to sterilisation and contraception and (given the perceived immediate risk that Mr and Mrs K may wish to remove K abroad for the purposes of sterilisation) an injunction to restrain the removal of K from this jurisdiction for that purpose. The application was appropriately brought to this Court under the provisions of the Mental Capacity Act 2005; the application in my view engages important considerations under article 8 (right to respect for private and family life) and article 12 (right to found a family)." [Summary required; detailed external summary available.]
- A Local Authority v SY (2013) EWHC 3485 (COP), (2013) MHLO 96 — "It is plain from all of the evidence before me that SY lacks the capacity to litigate and the capacity to make decisions about her residence, her contact with others, her care package and to enter a contract of marriage. I find the care package proposed by the authority and the orders sought are in SY's best interests. Accordingly, I make all of the orders sought. I am satisfied that, on the facts of this case, the appropriate and proportionate course is for the court, of its own motion, to invoke the inherent jurisdiction of the High Court and to make the declaration that the ceremony in which SY was involved on 10 June 2012 was a non-marriage." [Summary required.]
- A Local Authority v TZ (2013) EWHC 2322 (COP), (2013) MHLO 91 — "The principal issue to be determined in this judgment in proceedings brought in the Court of Protection is whether a 24-year-old man, whom I shall hereafter refer to as TZ, has the capacity to consent to sexual relations." [Summary required.]
- A Local Authority v TZ (No 2) (2014) EWCOP 973, (2014) MHLO 72 — 'The principal focus of the latest assessments has been the issues that may arise as TZ endeavours to meet, and form intimate relations with, other men. TZ is clear that he wishes to have the opportunity to have these experiences, and all professionals involved in supporting him agree that he should be given that opportunity. The question is whether he had the capacity in respect of decisions that may have to be made when that opportunity arises. Following discussion at the hearing, it was agreed that the issues now arising can be summarised as follows: (1) What is the relevant decision in respect of which the question of capacity arises? (2) Does TZ lack capacity in respect of that decision? (3) If yes, what orders should be made in TZ's best interests? (4) Should the court appoint the local authority to act as TZ's welfare deputy?'
- CYC v PC and NC (2012) MHLO 103 (COP) — (1) PC lacked capacity to litigate and lacked capacity to decide whether to resume married life with NC (upon the expiry of a 13-year sentence for his sexual offences against previous wives). (2) The resumption of married life with NC was lawful as being in her best interests.
- D County Council v LS (2010) EWHC 1544 (Fam) — The original decision in this case, that LS had capacity to consent to sexual relations and marriage, was revisited in light of the House of Lords decision in R v C. (1) The MCA statutory scheme should be applied in preference to the previous civil case law; the approach in R v C clearly applied to both the civil and criminal arenas, and was consistent with s3 MCA, so would be followed. (2) Capacity requires not only an understanding of the relevant information but also the ability to retain and weigh it in the balance: therefore capacity to consent to sexual relations is person- and situation-specific, and there may be factors (such as irrational fear) impeding or undermining a person's capacity to make a choice. (3) This approach applies equally to marriage. (4) On the facts, the conclusion about capacity was the same. [Caution.]
- Derbyshire County Council v AC (2014) EWCOP 38, (2014) MHLO 121 — Capacity (litigation, care, contact, sexual relations, residence) and best interests.
- IM v LM (2014) EWCA Civ 37, (2014) MHLO 1 — "On the basis that we have described, we hold that the approach taken in the line of first instance decisions of Munby J, Mostyn J, Hedley J and Baker J in regarding the test for capacity to consent to sexual relationships as being general and issue specific, rather than person or event specific, represents the correct approach within the terms of the MCA 2005. We also conclude that this approach is not, in truth, at odds with the observations of Baroness Hale, which were made in a different legal context."
- LB Tower Hamlets v TB (2014) EWCOP 53, (2014) MHLO 130 — "All parties are agreed that TB lacks capacity to make decisions concerning her residence, her care and her contact with SA. The issues that I have to decide are these: (i) Where should TB live in her best interests? ... (ii) If TB does not return to 9 Emerald Mansions what should her contact be with SA, in her best interests? (iii) Does SA have the capacity to consent to sex? This is an abstract question if she does not return to 9 Emerald Mansions, but a very real one if she does. (iv) Whatever I decide about residence does her care regime amount to a deprivation of liberty within the terms of Article 5?"
- London Borough of Ealing v KS (2008) EWHC 636 (Fam) — Applications by local authority seeking declarations that a vulnerable adult lacked capacity, among other things, to marry; consent to medical treatment; have sexual relations or decide her place of residence.
- PC v City of York Council (2013) EWCA Civ 478, (2013) MHLO 61 — "The central issue in this appeal concerns the capacity of a married woman to decide whether or not she is going to live with her husband." [Summary required; detailed external summary available.]
- R v C (2009) UKHL 42 — For the purposes of s30 Sexual Offences Act 2003: (1) lack of capacity to choose can be person or situation specific; (2) an irrational fear arising from mental disorder that prevents the exercise of choice could amount to a lack of capacity to choose; (3) inability to communicate could be as a result of a mental or physical disorder.
- Re AB; D Borough Council v AB (2011) EWHC 101 (COP) — (1) The test for capacity to consent to sex is set at a relatively low level: 'does she have sufficient rudimentary knowledge of that the act comprises and of its sexual character to enable her to decide whether to give or withhold consent?' (2) Capacity to consent to sexual activity is act-specific, not partner-specific; decisions to the contrary were based on a conflation of capacity to consent to sex and the exercise of that capacity. (3) The test requires an understanding and awareness of (a) the mechanics of the act, (b) that there are health risks involved, particularly the acquisition of sexually transmitted and sexually transmissible infections, and (c) that sex between a man and a woman may result in the woman becoming pregnant; however, not all criteria will apply to every type of sexual activity. (4) The test does not require an understanding (a) that sex is part of having relationships with people and may have emotional consequences, (b) that only adults over the age of ..→
- Re H; A Local Authority v H (2012) EWHC 49 (COP), (2012) MHLO 3 — "On 15 December 2011 I made an order declaring H’s incapacity in many respects and making best interests declarations as to her future care. In particular I made an order declaring that H lacked capacity to consent to sexual relations and a consequential order to protect her best interests which was very restrictive and undoubtedly amounts to the deprivation of liberty. In those circumstances I reserved my reasons for making these orders with a view to handing them down without the need for attendance of any party. This I now do." [Summary to follow.]
- Re MM (An Adult); Local Authority X v MM (2007) EWHC 2689 (Fam) — Inherent jurisdiction case re vulnerable adult
- Re MM (An Adult) (2007) EWHC 2003 (Fam) — Inherent jurisdiction case re vulnerable adult. [Summary required.]
- Sandwell MBC v RG (2013) EWHC 2373 (COP), (2013) MHLO 55 — "I have been told that within the area of this particular local authority there are a number of incapacitated adults who have been the subject of arranged or forced marriages, and that it is important to send a strong signal to the Muslim and Sikh communities within their area (and, indeed, elsewhere) that arranged marriages, where one party is mentally incapacitated, simply will not be tolerated, and that the marriages will be annulled. ... Like the Official Solicitor, I am completely unpersuaded that his best interests require or justify that it is now annulled." [Summary required.]
- Sheffield City Council v E (2004) EWHC 2808 (Fam) — HUSBAND AND WIFE — Marriage — Capacity to marry — Alleged patient wanting to marry — Local authority wishing to prevent marriage — Whether jurisdiction to apply best interests test. Since to establish capacity to marry required only the ability to understand the nature of the marriage contract and the duties and responsibilities that normally attached to marriage, there was no jurisdiction to consider whether any particular marriage was in an alleged patient's best interests. [ICLR summary.]
- XCC v AA (2012) EWHC 2183 (COP), (2012) MHLO 80 — An arranged marriage took place in Bangladesh between DD, a British citizen with severe learning difficulties, and her cousin purely for immigration purposes. The judge: (1) exercised the inherent jurisdiction of the High Court to declare that the marriage (although valid in Bangladesh) was not recognised as a valid marriage in this jurisdiction; (2) declared that it was in DD’s best interests for an application to be made to annul the marriage, with the Official Solicitor as litigation friend; (3) stated that marriage with an incapacitated person who is unable to consent is a forced marriage within the meaning of the Forced Marriage Act 2007; and (4) stated the following guidance: 'in my view it is the duty of a doctor or other health or social work professional who becomes aware that an incapacitated person may undergo a marriage abroad, to notify the learning disabilities team of Social Services and/or the Forced Marriage Unit if information comes to light that there are plans ..→
- YLA v PM (2013) EWHC 4020 (COP), (2013) MHLO 114 — There was a very significant possibility that PM married YLA and had a child with her for reasons solely to do with his immigration status. Parker J made interim declarations including that YLA lacked capacity to consent to sexual relations or marriage, or to decide where she should live, and provided general guidance on such forced marriage cases.