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  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)  EWHC 3202 (Fam),  1 WLR 81B, M v B (By the Official Solicitor)  EWHC 1681 (Fam),  1 FLR 117B and Re SA; A Local Authority v MA  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)  1 WLR 290 and Re MB (Medical Treatment)  EWCA Civ 3093  2 FLR 426B, 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:
Capacity to consent to sexual activity If the complainant consented to sexual activity against her inclination because she was frightened of the defendant, even if her fear was irrational and caused by her mental disorder, it did not follow that she lacked the capacity to choose whether to agree to sexual activity. [Overturned on appeal.]
House of Lords leave to appeal given, 10/02/09.
Full judgment: Possible Bailii link (not there when last checked, but ..→
Sexual consent 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.
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
CRIME — Sexual offences — Sexual activity with person with mental disorder impeding choice — “Any other reason” — Whether including irrational fear — Whether incapacity to choose issue-specific — Inability to communicate choice — Whether limited to physical inability — Sexual Offences Act 2003, s 30(1)(2)
The words of s 30(2)(a) of the Sexual ..→
- D County Council v LS  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.]
- Re AB; D Borough Council v AB  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  EWHC 49 (COP),  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.]
- XCC v AA  EWHC 2183 (COP),  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 ..→
- CYC v PC and NC  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.
- A Local Authority v K  EWHC 242 (COP),  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 AK  EWHC B29 (COP),  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.]
- Sandwell MBC v RG  EWHC 2373 (COP),  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.]
- PC v City of York Council  EWCA Civ 478,  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.]
- A Local Authority v TZ  EWHC 2322 (COP),  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 SY  EWHC 3485 (COP),  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.]
- YLA v PM  EWHC 4020 (COP),  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.
- IM v LM  EWCA Civ 37,  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." [Permission to appeal to the Supreme Court was refused, the Supreme Court observing "[t]here is definitely a point of general public importance here but this is not a suitable case in which to consider it".]
- AB v LM  EWHC 1234 (COP),  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 TZ (No 2)  EWCOP 973,  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?"
- Derbyshire County Council v AC  EWCOP 38,  MHLO 121 — "In inviting the Court of Protection to exercise its jurisdiction, the Local Authority asserts that AC lacks capacity in the following areas: (i) to litigate in these proceedings; (ii) to make choices about her future care, therapeutic and educational needs; (iii) in relation to contact with others; and (iv) in making informed decisions about her future residence. In respect of (i)-(iii) above, the Local Authority invites me to make final declarations under section 15 of the Mental Capacity Act 2005. In respect of (iv) it invites me to make an interim declaration under section 48 of the 2005 Act, pending further capacity assessments of AC. The Local Authority has invited the court to consider AC's capacity to consent to sexual relations; it invites me to conclude that she does have capacity in this regard. The Local Authority further invites me to make limited best interests decisions following on from the capacity declarations. Specifically, and importantly, it invites me to declare ..→
- LB Tower Hamlets v TB  EWCOP 53,  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?"
- Re RS (Forced Marriage Protection Order)  EWHC 3534 (Fam),  MHLO 105 — "The identified questions for this hearing are whether: (i) RS had mental capacity to marry at the date of his marriage to W; and if not; (ii) whether the court should exercise its power under the inherent jurisdiction to declare that the marriage is not recognised as valid in England and Wales as a precursor to the initiation of formal proceedings to annul the marriage."
- London Borough of Southwark v P  EWCOP 40,  MHLO 113 — "This is an application made both in the Court of Protection and for a Forced Marriage Protection order in the High Court (Family Division). ... I am of the view that the quickest way to deal with this is for me to list the matter for a further one day hearing shortly after the date on which the capacity report is completed. ... I consider that the existing orders should be discharged on the basis of an undertaking by the parents, R and A, that they are not to facilitate, allow or otherwise permit P to undergo any ceremony or purported ceremony of marriage, civil partnership, betrothal or engagement; or from entering into any arrangement in relation to the engagement or matrimony, whether by civil or religious ceremony, of P whether within English jurisdiction or outside it. They are also to undertake not to instruct, encourage or suggest to any other person to do so. They are to undertake not to take him to Bangladesh prior to the next hearing. On that basis I will discharge the ..→
- LB Southwark v KA (Capacity to Marry)  EWCOP 20,  MHLO 10 — "These proceedings under the Mental Capacity Act 2005 concern a 29 year old learning disabled man, KA, one of five children of a Bangladeshi family. I am asked to make declarations that KA lacks capacity to make decisions as to: (a) Litigation; (b) Personal care and welfare; (c) Sexual relations; (d) Marry. It is common ground that KA does not have capacity to litigate thus the Official Solicitor is his litigation friend."
- Al-Jeffery v Al-Jeffery (Vulnerable adult, British citizen)  EWHC 2151 (Fam),  MHLO 25 — "There are two applications before the court. One asks the court to make a statutory forced marriage protection order. The other asks the court to make orders, including mandatory orders, in the exercise of the inherent jurisdiction of the High Court to make orders protective of vulnerable adults. ... She now claims that she is being seriously ill-treated by her father and being kept under constraint by him in his flat; and that she is being prevented by him from leaving Saudi Arabia and travelling to Wales or England, which she wishes to do, and is, in the eyes of the law of Wales and England, fully entitled freely to do. ... The father, against whom I [am] asked to make an order, is not a British citizen and owes no allegiance to our Sovereign or this state. Neither of them are present here. Neither of them have lived here for several years. Both of them are citizens of Saudi Arabia and both of them currently live there. There have, indeed, already been recent legal proceedings ..→
- R v GA  EWCA Crim 299,  MHLO 148 — "Section 1(2) of the Mental Capacity Act 2005 provides that 'A person must be assumed to have capacity unless it is established that he lacks capacity'. When capacity to consent is in issue in criminal proceedings, the burden of proving incapacity falls upon the party asserting it and will inevitably be the prosecution. We consider that, other than in criminal proceedings pursuant to section 44 of the Mental Capacity Act, the prosecution must discharge that burden to the criminal standard of proof; that is, they must make the jury sure that the complainant did not have capacity to consent. If the jury cannot be sure that the relevant complainant lacks capacity, then they must be directed to assume that he or she does. The issue for them then will be an examination of all the facts and circumstances to determine whether or not the complainant consented to the act or acts in question and whether the alleged assailant knew they did not consent or did not believe that ..→
- Re M: AB v HT  EWCOP 2 —
Declaration of non-marriage in English law "These complex and difficult proceedings in the Court of Protection concern a 37-year-old woman, hereafter referred to as M, who (as I have found, for reasons set out below) at present lacks capacity by virtue of a combination of psychotic illness and acquired brain injury. The parties to the proceedings are the applicant, M's father, hereafter referred to as AB; her aunt, hereafter referred to as HT; the local authority for the area where HT, and currently M, live, namely the London Borough of Hammersmith and Fulham; and a man hereafter referred to as MS, with whom M went through a religious ceremony of marriage in 2013. A dispute has arisen concerning a number of issues about her past, present and future which has necessitated a lengthy and unusual fact-finding hearing. This judgment sets out my conclusions on the disputed matters of fact, together with an analysis as to her ..→
Sex and covert contraception "This judgment in long-running proceedings involving a vulnerable young woman, hereafter referred to as 'P', addresses difficult issues concerning her sexual relationships and the covert insertion of a contraceptive device. ... I shall address these issues in the following order: (1) Capacity - general principles. (2) P's capacity other than sexual relations. (3) P's capacity to consent to sexual relations. (4) Best interests: general principles. (5) Best interests: contraception. (6) Best interests: covert treatment (6) Best interests: sexual relationships and supervision. (7) Further issues arising from the draft order." ... Given the serious infringement of rights involved in the covert insertion of a contraceptive device, it is in my judgement highly probable that, in most, if not all, cases, professionals faced with a decision whether to take that step will conclude that it is appropriate to ..→
Sexual exploitation, restrictions where adults have capacity After a circuit judge endorsed a care plan which led to the repeated sexual exploitation by strangers of a young woman with autism and significant learning disabilities (who had capacity to consent to sexual relations but lacked capacity to make decisions on her contact with men), Hayden J provided guidance that 'where issues arise that may necessitate restrictions in areas where adults have capacity, these should be heard by a High Court Judge in the Court of Protection'.
Originally on Bailii with the neutral citation number  EWHC 2849 (Fam)Not on Bailii!.
39 Essex Chambers have kindly agreed for the following summary to be reproduced below. The remainder of the newsletter can be read here: 39 Essex Chambers, 'Mental Capacity Report' (Issue 90, November 2018).
=== Sex, risk, and public ..→
Social media and internet use "I have reached the clear view that the issue of whether someone has capacity to engage in social media for the purposes of online ‘contact’ is distinct (and should be treated as such) from general consideration of other forms of direct or indirect contact. ... It is my judgment, having considered the submissions and proposals of the parties in this case and in Re B , that the ‘relevant information’ which P needs to be able to understand, retain, and use and weigh, is as follows: (i) Information and images (including videos) which you share on the internet or through social media could be shared more widely, including with people you don’t know , without you knowing or being able to stop it; (ii) It is possible to limit the sharing of personal information or images (and videos) by using ‘privacy and location settings’ on some internet and social media sites; [see paragraph below]; ..→
Social media and sexual relations "By this judgment, I set out my conclusions in relation to a range of capacity questions on issues relevant to Miss B’s life, including her capacity: (i) To litigate in these proceedings...; (ii) To manage her property and affairs...; (iii) To decide where she resides...; (iv) To decide on her package of care...; (v) To decide with whom she has contact...; (vi) To use the internet and communicate by social media; (specifically, it is agreed that the question is ‘whether Miss B has capacity to make a decision to use social media for the purposes of developing or maintaining connections with others’)...; (vii) To consent to sexual relations... It is clear that the information relevant to the decision in this area includes: (i) the sexual nature and character of the act of sexual intercourse, the mechanics of the act; (ii) the reasonably foreseeable consequences of sexual ..→
Capacity to consent to sex with husband "There is also evidence that indicates that NB very much enjoys the status of marriage, is affectionate to her husband [AU] and, on occasion, initiates sexual relations. This appears consistent with Ms Wilson's observations as long ago as 1996. The primary issue before the Court is whether NB truly has the capacity to consent to sexual relations. ... Unfortunately, the case attracted a great deal of media coverage, this notwithstanding that no argument had been heard and no Judgment delivered. A great deal of the comment was sententious and, in some instances, irresponsible. It is considered, by the Official Solicitor and the applicant Local Authority, that the impact of that publicity frightened AU very considerably, leading him to believe that he was likely to be sent to prison. He has left the party's flat and disengaged with these ..→
(1) Overlap between different decisions; (2) Sex (1) "The important questions on these appeals are as to the factors relevant to making the determinations of capacity which are under challenge and as to the approach to assessment of capacity when the absence of capacity to make a particular decision would conflict with a conclusion that there is capacity to make some other decision." (2) The Court of Appeal also decided on what is necessary to have capacity to consent to sexual relations.
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
Court of Appeal
B v A Local Authority
 EWCA Civ 913M
2019 May 14, 15; June 11
Sir Terence Etherton MR, King, Leggatt LJJ
Mental disorder— Capacity— Determination— Local authority applying for declarations of lack of capacity in respect of ..→
Capacity and sexual relations "The issue arising on this appeal is whether a person, in order to have capacity to decide to have sexual relations with another person, needs to understand that the other person must at all times be consenting to sexual relations."
Full judgment: BAILII
- Capacity to consent to sexual ..→
Sexual relations and contact with husband (1) SF lacked capacity in relation to some areas (litigation, care, residence, finances, tenancy, contact with strangers and people who are unfamiliar) but did have capacity to consent to sexual relations and to decide on contact with her husband. The psychiatric evidence was that SF would only have episodic memory ("memory for the personally experienced events of a person’s life, with retention of the details of time and situation in which they were acquired") in relation to contact with strangers, but would have semantic memory ("knowledge which is retained irrespective of the circumstances in which it was acquired [deriving] from the 'feeling' around the memory rather than the 'facts' surrounding the memory") in relation to her husband. (2) The court authorised the deprivation of liberty which existed both when living at her home and (on an interim basis until authorised by the ..→