Category

Category:Sex and marriage cases

(Redirected from Category:Capacity to consent to sexual relations cases)


The old category structure used on this page is comprehensive as it contains every relevant case. The new database structure was introduced in 2019. It is more potentially useful than the old categorisation system: it includes all cases since January 2017, but only a minority of older cases: see Special:Drilldown/Cases. The pages below are initially ordered according to the dates on which they were added to the site (most recent first). The order can be changed by clicking on the symbol beside a column heading: click on the symbol beside "Page and summary" for alphabetical order; click beside "Categories" for the order in which the cases were reported. Click on the arrow symbol again to reverse the order. Click on a page name to view the relevant page. Asterisks mark those cases which have been added to the new database structure.

Case and summary Date added Categories
* Divorce D v S [2023] EWCOP 8 — "There are two applications before this Court. The first to be determined (in the Court of Protection) relates to a best interests decision in respect of D, who lacks capacity in a wide sphere of decision-taking in consequence of a severe acquired brain injury. The injury which occurred in 2006, resulted in significant physical and cognitive impairment. The second application (in the Family Court), which as will become clear below, is contingent upon the decision in the first, is an application for a decree nisi of divorce." 2023‑06‑06 21:18:53 2023/03/01 cases


* Paedophilia A Local Authority v H [2023] EWCOP 4 — "H prefers to be referred to by female pronouns. ... H has expressed a sexual interest in pre-pubescent children. ... In the opinion of a highly experienced psychiatrist, instructed in these proceedings, H presents a real risk of sexual harm to children, both in contact with them and online. ... The Court has been asked to consider H's capacity to take decisions in the following areas: (i) Residence; (ii) Care/support; (iii) Contact with others (both adults and children); (iv) Use of the internet and social media." 2023‑06‑06 21:11:13 2023 cases, Cases, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Reporting restriction order cases, Sex and marriage cases, Judgment available on Bailii, 2023/02/07 cases


* Capacity to marry X v A [2021] EWFC 118 — "The issues the Court has to determine at this hearing are: (i) whether on the date of the parties' marriage, on 2 April 2019, the Respondent did not within the meaning of section 12(1)(c) or (d) of the Matrimonial Causes Act 1973 (a) validly consent to the marriage in consequence of "unsoundness of mind" or duress; or (b) "though capable of giving a valid consent, was suffering, (whether continuously or intermittently) at the time of the marriage from a mental disorder within the meaning of the Mental Health Act 1983 of such a kind or to such an extent as to be unfitted for marriage such that the marriage was voidable." (ii) whether on 21 May 2019 when the Respondent transferred a half-share in the former matrimonial home to the Applicant, she had the capacity to authorise that transfer (iii) whether under section 33 of the Family Law Act 1996 the Court has the power to or should make an order that the Applicant is entitled to occupy the former matrimonial home bearing in mind, inter alia, the Respondent's present lack of capacity, the latter having been determined by the Court in the preliminary issue judgment dated 18 March 2021 to which I have already referred. (iv) Whether the court should make an order on the Respondent's application for an Occupation Order excluding the Applicant." 2023‑03‑17 22:32:36 2021 cases, Cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Sex and marriage cases, Judgment available on Bailii, 2021/11/14 cases


* Forced marriage Coventry City Council v MK [2023] EWHC 249 (Fam) — "The application for a Forced Marriage Protection Order arose out of the discovery that there had been an arranged putative wedding between MK and a woman in Pakistan. [His parents] accept that this took place over Whatsapp. ... The issues falling to be determined at this hearing may conveniently be summarised as follows: (i) Is MK's marriage to A valid? (ii) In the event that MK's marriage to A is not valid, what is the appropriate remedy to recognise the invalidity? (iii) What should be the terms of any forced marriage protection order? (iv) Is it in MK's best interests to remain living in the placement? (v) Is it in MK's best interests to continue to receive care and support in accordance with the current care plan? (vi) Is any confinement consequent upon MK's care plan necessary and proportionate? (vii) Do any decisions need to be made in relation to MK's contact with A? (viii) What arrangements, in relation to MK's internet and social media use are in MK's best interests and if there are to be restrictions on his use what should be the extent of such and what should be the arrangements for reviewing them?" 2023‑03‑17 15:04:11 2023 cases, Cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Sex and marriage cases, Judgment available on Bailii, 2023/02/09 cases


* Autoerotic asphyxiation Re AA (Capacity to consent to sexual practices) [2020] EWCOP 66 — "I am concerned with AA, a 19 year old man, who has been diagnosed as having autism ('ASD') and Asperger's Syndrome. He has interests relating to certain sexual practices including autoerotic asphyxiation ('AEA'). He has posted material about himself on the dark web, advertising his wish to be a submissive partner and his desire to be kidnapped and raped. The issues for me to determine are: (i) AA's capacity to conduct proceedings and make decisions regarding AEA, internet and social media, consent to sexual relations and contact with others; (ii) AA's best interests in those domains where he lacks capacity to decide; and (iii) Whether I should authorise AA's deprivation of liberty." 2022‑12‑01 16:10:25 2020 cases, Cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Sex and marriage cases, Judgment available on Bailii, 2020/12/15 cases


* Sex and contact Hull City Council v KF [2022] EWCOP 33 — KF, a woman with moderate learning disability, wanted to have sex with her partner KW on the night before he was due to be sentenced for sexual violence which had nearly killed her. The judge noted that the lack of bail conditions meant that only the COP proceedings offered her any protection. The court had previously decided that she had capacity to engage in sexual relations in general, but on this occasion decided that she lacked capacity to make decisions about: (a) contact with KW, including unsupervised contact with him whether overnight or at all; (b) sexual relations with KW; (c) support required to keep her safe when having unsupervised contact with KW. Unsurprisingly, the court decided that it was not in KF's best interests to have any unsupervised contact with KW. 2022‑08‑01 22:13:13 2022 cases, Cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Sex and marriage cases, Judgment available on Bailii, 2022/07/28 cases


* Capacity and sexual relations A Local Authority v JB [2021] UKSC 52 — The joint expert described JB's number one priority as "to get" a woman as a sexual partner, with the sole goal being physical and sexual contact with a woman and any woman, and that JB lacked understanding of concepts of consent by the other person and so posed a risk of sexual offending to women. The Supreme Court (dismissing the Official Solicitor's appeal) decided that in assessing JB's capacity "the matter" was his "engaging in" (rather than consenting to) sexual relations, and that information relevant to that decision includes the fact that the other person must have the ability to consent to the sexual activity and must in fact consent before and throughout the sexual activity. The Supreme Court reiterated that capacity assessments should first ask whether the person is "unable to make a decision for himself in relation to the matter" (which involves formulating "the matter" and consequently identifying "the information relevant to the decision" which includes information about the reasonably foreseeable consequences to the patient and others) and secondly ask whether that inability is "because of" an impairment of, or a disturbance in the functioning of, the mind or brain. In relation to sexual relations "the matter" will ordinarily be formulated in a non-specific way: in this case JB's wishes were non-specific, but in another case "the matter" might be person-specific (e.g. sex between a long-standing couple where one person had a relevant impairment, or between two mutually-attracted people both with relevant impairments). The question of JB's capacity was remitted to the original judge for reconsideration. 2021‑11‑25 22:49:39 2021 cases, Cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Sex and marriage cases, Judgment available on Bailii, 2021/11/24 cases


* Prostitution Secretary of State for Justice v A Local Authority [2021] EWCA Civ 1527 — The words "causes or incites" found in s39 Sexual Offences Act 2003 carry their ordinary meaning, and care workers implementing a care plan facilitating contact between a person with mental disorder and a prostitute would clearly be at risk of committing a criminal offence. Section 39 does not interfere with an Article 8 right (and would be justified if it did), and the discrimination involved (compared with someone whose physical disability prevented him from making the practical arrangements) is justified under Article 14. The court noted situations where facilitating contact might not fall foul of s39, such as where a person with dementia wishes to spend time at home with a spouse, or a young person wishes to meet people of his own age and make friends. 2021‑10‑25 21:16:32 2021 cases, Cases, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Sex and marriage cases, Judgment available on Bailii, 2021/10/22 cases


* Contact and marriage Re BU [2021] EWCOP 54 — (1) BU lacked capacity to decide whether to maintain contact with NC, and it was ordered that there be no further contact with him. (2) She had capacity to marry but could not give valid consent as she was under NC's undue influence, so a forced marriage protection order was made for 12 months. (3) An injunction preventing a civil partnership was granted, without the need to clarify the test for capacity to enter a civil partnership. (3) The judge noted that no reporting restriction order should operate so as to have retrospective effect. 2021‑10‑19 20:38:48 2021 cases, Best interests, Cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Sex and marriage cases, Judgment available on Bailii, 2021/09/24 cases


* Sex and contact A local Authority v P and CCG [2021] EWCOP 48 — P had capacity in relation to sex, but lacked capacity in relation to litigation, residence, care and contact. The judge's letter to P included the following explanation: "Sex is a part of contact with other people but in law considered separately. Everyone was prepared to agree you could understand what decisions you and the person you have sex with have to take. However the decision about who is a person who you can trust enough to have sex with is a decision about contact and the evidence shows me that this is something you do not have understanding about." 2021‑09‑12 20:36:33 2021 cases, Cases, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Sex and marriage cases, Judgment available on Bailii, 2021/06/10 cases


* Immigration, capacity and marriage Navaraththinam v Entry Clearance Officer Colombo [2021] UKAITUR HU135462019 — The appellant challenged the judge's rejection of his appeal against entry clearance refusal. The Upper Tribunal held that: (1) the judge's comments on the sponsor's capacity were consistent with the presumption of capacity (despite misgivings); (2) in any event, the judge came to her conclusions on the genuineness and subsistence of the appellant's marriage (which began with a foreign ceremony in which the sponsor had given her communication via emojis and continued without any romantic relationship) without factoring into that what she had concluded or failed to conclude about capacity. 2021‑05‑21 19:33:20 2021 cases, Cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Repatriation cases, Sex and marriage cases, Judgment available on Bailii, 2021/04/22 cases


* Prostitution A Local Authority v C [2021] EWCOP 26 — The Court of Protection, having noted that there was room for argument that there were now two contradictory COP judgments on s39 Sexual Offences Act 2003 (Care workers: causing or inciting sexual activity), granted permission to appeal under Civil Procedure Rules, rule 52.6(1)(b) (some other compelling reason for the appeal to be heard) because of the the tension between general policy considerations in relation to prostitution and the court's interpretation of s39. 2021‑04‑30 08:40:10 2021 cases, Cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Sex and marriage cases, Judgment available on Bailii, 2021/04/26 cases


* Prostitution A Local Authority v C [2021] EWCOP 25 — C had capacity to engage in sexual relations and to decide whether to have contact with a prostitute, but lacked capacity in relation to conducting proceedings, residence, care and treatment, internet and social media, and financial affairs. The Court of Protection decided that a care plan to facilitate C's contact with a prostitute could be implemented without committing an offence under s39 Sexual Offences Act 2003 (Care workers: causing or inciting sexual activity). 2021‑04‑30 08:21:30 2021 cases, Cases, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Sex and marriage cases, Judgment available on Bailii, 2021/04/26 cases


* Capacity and sexual relations A Local Authority v JB [2019] EWCOP 39 — "Distilled to its essence, the question which it is said remains unanswered is this: does the "information relevant to the decision" within section 3(1) of the Mental Capacity Act 2005 include the fact that the other person engaged in sexual activity must be able to, and does in fact, from their words and conduct, consent to such activity?" 2021‑04‑14 20:54:03 2019 cases, Cases, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Sex and marriage cases, Judgment available on Bailii, 2019/09/17 cases


* Capacity to marry NB v MI [2021] EWHC 224 (Fam) — The application for a declaration of non-recognition of a Muslim marriage pursuant to the inherent jurisdiction of the High Court and the petition for nullity were unsuccessful: the wife had capacity (though maybe not wisdom) when she got married, so the marriage was valid under English law at its formation; even if the marriage had been voidable the judge would have refused to grant a non-recognition declaration as that would be contrary to statute; and the condition for granting leave out of time for the nullity petition was not satisfied. The judgment contains guidance on capacity to marry. 2021‑02‑14 11:37:08 2021/02/08 cases


* Sexual relations and contact with husband Re SF [2020] EWCOP 15 — (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 placement) when receiving respite care at a residential supported care provision. 2020‑07‑18 20:31:17 2020 cases, Cases, Deprivation of liberty, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Sex and marriage cases, Judgment available on Bailii, 2020/03/25 cases


* Capacity and sexual relations A Local Authority v JB [2020] EWCA Civ 735 — "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." 2020‑06‑11 20:43:02 2020 cases, Cases, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Sex and marriage cases, Judgment available on Bailii, 2020/06/11 cases


* Overlap between different decisions, sex B v A Local Authority [2019] EWCA Civ 913 — (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. 2020‑04‑02 13:29:07 2019 cases, Cases, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Sex and marriage cases, Judgment available on Bailii, 2019/06/11 cases


* Capacity to consent to sex with husband London Borough of Tower Hamlets v NB [2019] EWCOP 17 — "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 proceedings. ... [Mr Bagchi for the OS] submits it is a 'general' or 'issue-specific' test rather than a partner-specific one. If Mr Bagchi is correct, the difficulty that presents in this case is that there is only one individual with whom it is really contemplated that NB is likely to have a sexual relationship i.e. her husband of 27 years. It seems entirely artificial therefore to be assessing her capacity in general terms when the reality is entirely specific. ... As I said on the last occasion, these issues are integral to the couple's basic human rights. There is a crucial social, ethical and moral principle in focus. It is important that the relevant test is not framed in such a restrictive way that it serves to discriminate against those with disabilities, in particular those with low intelligence or border line capacity. ... Mr Bagchi has accepted that if a person-specific test were applied here then the outcome, in terms of assessment of NB's capacity may be different. ... I do not necessarily consider that the applicable test in the Court of Protection necessarily excludes the 'person specific approach'. I am reserving my Judgment ..." 2019‑05‑15 22:02:33 2019 cases, Cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Sex and marriage cases, Judgment available on Bailii, 2019/05/07 cases


* Social media and sexual relations Re B (Capacity: Social Media: Care and Contact) [2019] EWCOP 3 — "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 intercourse, namely pregnancy; (iii) the opportunity to say no; i.e. to choose whether or not to engage in it and the capacity to decide whether to give or withhold consent to sexual intercourse. (iv) that there are health risks involved, particularly the acquisition of sexually transmitted and transmissible infections; (v) that the risks of sexually transmitted infection can be reduced by the taking of precautions such as the use of a condom." 2019‑02‑23 12:12:34 2019 cases, Cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Sex and marriage cases, Judgment available on Bailii, 2019/02/21 cases


* Social media and internet use Re A (Capacity: Social Media and Internet Use: Best Interests) [2019] EWCOP 2 — "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]; (iii) If you place material or images (including videos) on social media sites which are rude or offensive, or share those images, other people might be upset or offended; [see paragraph below]; (iv) Some people you meet or communicate with (‘talk to’) online, who you don’t otherwise know, may not be who they say they are (‘they may disguise, or lie about, themselves’); someone who calls themselves a ‘friend’ on social media may not be friendly; (v) Some people you meet or communicate with (‘talk to’) on the internet or through social media, who you don’t otherwise know, may pose a risk to you; they may lie to you, or exploit or take advantage of you sexually, financially, emotionally and/or physically; they may want to cause you harm; (vi) If you look at or share extremely rude or offensive images, messages or videos online you may get into trouble with the police, because you may have committed a crime; [see paragraph below]. With regard to the test above, I would like to add the following points to assist in its interpretation and application: ..." 2019‑02‑23 12:01:31 2019 cases, Cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Sex and marriage cases, Judgment available on Bailii, 2019/02/21 cases


* Sexual exploitation, restrictions where adults have capacity Manchester City Council Legal Services v LC [2018] EWCOP 30 — 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'. 2018‑11‑07 13:41:36 2018 cases, 39 Essex Chambers summary, Cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Sex and marriage cases, Judgment available on Bailii, E90, 2018/10/24 cases


* Sex and covert contraception Re P (Sexual Relations and Contraception): A Local Authority v P [2018] EWCOP 10 — "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 apply to the court to facilitate a comprehensive analysis of best interests, with P having the benefit of legal representation and independent expert advice. 2018‑10‑22 14:37:50 2018 cases, 39 Essex Chambers summary, Cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Sex and marriage cases, Judgment available on Bailii, 2018/04/18 cases


* Declaration of non-marriage in English law Re M: AB v HT [2018] EWCOP 2 — "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 capacity, and orders made following my findings." 2018‑03‑08 20:27:30 2018 cases, Cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Sex and marriage cases, Judgment available on Bailii, 2018/01/26 cases


R v GA [2014] EWCA Crim 299, [2014] 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 they did so or were unreasonable in their belief that there was consent. In this particular case, expert evidence was led before the jury on the question of the complainant's capacity. It appears to us that it will inevitably be the case, if capacity is an issue, that an expert will be called to provide evidence which would not otherwise be within the common experience of the jury. It is vitally important that such evidence is 'expert', relevant and only deals with the matter in issue, namely capacity. Having read the transcript of the prosecution expert evidence in this case we regret to say that she exceeded her remit, particularly in articulating her own interpretation of the facts as to whether or not the complainant did consent. It is unfortunate that the witness was not adequately managed in the court process as a whole. What is more, it seems to us that the opinions expressed by the prosecution expert did not reflect the jurisprudence at the time. Therefore, even if not conceded we would have allowed the appeal being certain that decided that the jury's finding was unsafe on two grounds: (i) the judge adopted the wrong standard of proof in his directions to the jury in relation to the issue of capacity; and (ii) the expert evidence not fit for purpose to assist the jury to come to any conclusion at all as to the capacity of by the complainant to consent to sexual relations." 2016‑12‑29 21:08:41 2014 cases, Criminal law capacity cases, ICLR summary, Judgment available on Bailii, No summary, Sex and marriage cases, Transcript


Al-Jeffery v Al-Jeffery (Vulnerable adult, British citizen) [2016] EWHC 2151 (Fam), [2016] 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 between them there. Should I, nevertheless, attempt to help her by making the essential order which she seeks for her return here; or should I appreciate that that would be exorbitant and, in my judicial discretion, decline to do so? That is the essential issue and dilemma in this case." 2016‑08‑27 09:09:22 2016 cases, Inherent jurisdiction cases, Judgment available on Bailii, No summary, Sex and marriage cases, Transcript


* Capacity to marry LB Southwark v KA [2016] EWCOP 20 — "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." 2016‑04‑03 21:09:56 2016 cases, Cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Sex and marriage cases, Judgment available on Bailii, 2016/03/23 cases


London Borough of Southwark v P [2015] EWCOP 40, [2015] 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 forced marriage protection injunction." 2015‑12‑21 23:19:00 2015 cases, Judgment available on Bailii, No summary, Sex and marriage cases, Transcript


Re RS (Forced Marriage Protection Order) [2015] EWHC 3534 (Fam), [2015] 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." 2015‑12‑10 12:43:13 2015 cases, Judgment available on Bailii, No summary, Sex and marriage cases, Transcript


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?" 2014‑12‑31 10:58:36 2014 cases, Best interests, Deprivation of liberty, Judgment available on Bailii, No summary, Sex and marriage cases, Transcript


Derbyshire County Council v AC [2014] EWCOP 38, [2014] 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 (re (iv) above) that it is in AC's best interests that she reside at Pennine House (a pseudonym), a residential home which is geographically local to her parents' home." 2014‑12‑30 23:00:26 2014 cases, Judgment available on Bailii, No summary, Other capacity cases, Sex and marriage cases, Transcript


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?" 2014‑08‑01 11:36:45 2014 cases, Judgment available on Bailii, No summary, Sex and marriage cases, Transcript


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." 2014‑02‑15 23:55:00 2013 cases, Judgment available on MHLO, Judgment missing from Bailii, No summary, Sex and marriage cases, Transcript


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." [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".] 2014‑01‑31 15:18:06 2014 cases, ICLR summary, Judgment available on Bailii, Sex and marriage cases, Transcript


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. 2013‑12‑16 15:26:25 2013 cases, Brief summary, Judgment available on Bailii, Sex and marriage cases, Transcript


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." 2013‑11‑12 20:48:44 2013 cases, Judgment available on Bailii, No summary, Sex and marriage cases, Transcript


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." 2013‑10‑04 19:04:06 2013 cases, Judgment available on Bailii, No summary, Sex and marriage cases, Transcript


* Marriage and cohabitation PC v City of York Council [2013] EWCA Civ 478 — "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." 2013‑08‑08 01:34:18 2013 cases, Cases, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Sex and marriage cases, Judgment available on Bailii, 2013/05/01 cases


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." 2013‑07‑30 21:36:37 2013 cases, Judgment available on Bailii, No summary, Sex and marriage cases, Transcript


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." 2013‑03‑26 17:24:39 2012 cases, Judgment available on Bailii, No summary, Sex and marriage cases, Transcript


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)." 2013‑03‑26 17:18:54 2013 cases, Judgment available on Bailii, No summary, Sex and marriage cases, Transcript


* Marriage and cohabitation 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. 2012‑10‑24 20:51:12 2012 cases, Cases, Judgment available on MHLO, Neutral citation unknown or not applicable, Pages using DynamicPageList3 parser function, Sex and marriage cases, Transcript, 2012/07/20 cases


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 for an overseas marriage of a patient who has or may lack capacity. The communities where this is likely to happen also need to be told, loud and clear, that if a person, whether male or female, enters into a marriage when they do not have the capacity to understand what marriage is, its nature and duties, or its consequences, or to understand sexual relations, that that marriage may not be recognised, that sexual relations will constitute a criminal offence, and that the courts have the power to intervene.' 2012‑08‑19 22:33:36 2012 cases, Detailed summary, Judgment available on Bailii, Sex and marriage cases, Transcript


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.] 2012‑01‑27 20:03:41 2012 cases, Judgment available on Bailii, No summary, Other capacity cases, Sex and marriage cases, Transcript


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 16 should do it (and therefore participants need to be able to distinguish accurately between adults and children), or (c) that both (or all) parties to the act need to consent to it. (5) AB did not have the capacity to consent to and engage in sexual relations, and the regime for his supervision and for the prevention of future sexual activity was in his best interests. (6) The declarations were made on an interim basis, to be reviewed in nine months, with the local authority ordered to provide sex education in the hope that he gains capacity. 2011‑02‑01 19:05:19 2011 cases, Detailed summary, Judgment available on Bailii, Sex and marriage cases, Transcript


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.] 2010‑08‑09 22:16:31 2010 cases, Brief summary, Judgment available on Bailii, Sex and marriage cases, Transcript


* Sexual consent 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. 2009‑08‑01 17:39:15 2009 cases, Cases, Criminal law capacity cases, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Sex and marriage cases, Judgment available on Bailii, 2009/07/30 cases


* Capacity to consent to sexual activity R v C [2008] EWCA Crim 1155 — 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.] 2008‑12‑14 22:51:05 2008 cases, Cases, Criminal law capacity cases, Judgment available on MHLO, Judgment missing from Bailii, Pages using DynamicPageList3 parser function, Sex and marriage cases, Transcript, 2008/05/23 cases


Re MAB; X City Council v MB [2006] EWHC 168 (Fam) — 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. 2008‑11‑29 13:45:10 2006 cases, Detailed summary, Judgment available on Bailii, Sex and marriage cases, Transcript


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. 2008‑09‑21 11:56:33 2008 cases, Brief summary, Judgment available on Bailii, Other capacity cases, Sex and marriage cases, Transcript


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.] 2008‑09‑12 17:06:17 2004 cases, Detailed summary, Judgment available on Bailii, Sex and marriage cases, Transcript


Re MM (An Adult); Local Authority X v MM [2007] EWHC 2689 (Fam) — Inherent jurisdiction case re vulnerable adult 2008‑02‑22 16:29:28 2007 cases, Judgment available on Bailii, No summary, Sex and marriage cases, Transcript


Re MM (An Adult) [2007] EWHC 2003 (Fam) — Inherent jurisdiction case re vulnerable adult. 2008‑02‑22 16:27:50 2007 cases, Judgment available on Bailii, No summary, Sex and marriage cases, Transcript


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