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 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.
- 1 Other
- 2 Citations
- 3 Related cases
- 4 Note
- 5 ICLR
- 6 Citation
- 7 Essex
- 8 Supreme Court
- 9 ICLR
- 10 ICLR
- 11 Extract from judgment
- 12 Citation
- 13 ICLR
- 14 Detailed summary
- 15 External links
Before: Mostyn J
Mr Joseph O'Brien (instructed by Local Authority Solicitor) for the Applicant
Mr Vikram Sachdeva (instructed by Irwin Mitchell, on behalf of the Official Solicitor) for the Respondent
B,  3 All ER 435,  All ER (D) 71 (Feb)
Case no COP117224583
The following is an automatically-generated list of the pages in Category:Capacity to consent to sexual relations cases:
- Re MM (An Adult)  EWHC 2003 (Fam) — Inherent jurisdiction case re vulnerable adult. [Summary required.]
- Re MM (An Adult); Local Authority X v MM  EWHC 2689 (Fam) — Inherent jurisdiction case re vulnerable adult
- Sheffield City Council v E  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.]
- London Borough of Ealing v KS  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.
- Re MAB; X City Council v MB  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.
- R v C  EWCA Crim 1155 —
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.