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.]


Munby J so stated when determining, as a preliminary issue, the appropriate questions to be put to experts in order to establish capacity in proceedings brought under the inherent jurisdiction by the claimant, Sheffield City Council, which was seeking to prevent the first defendant, E, an alleged patient, from marrying or associating with the second defendant, S.

MUNBY J said that the local authority were concerned that E, a young woman of 21 who allegedly functioned at the level of a 13 year old, had formed an abusive relationship with S, a 37 year old man with a substantial history of sexually violent crimes. A consultant psychiatrist deemed her to have capacity to litigate but the local authority wanted the experts to address the issue of her capacity in the context of her apparent wish to marry S. Her representatives wished the experts to consider whether she had the capacity to understand the nature of the contract of marriage, the responsibilities generated by that contract and the capacity to give valid consent to marriage generally. The authorities since Durham v Durham (1885) 10 PD 10, 81 were quite consistent: it was not enough that someone appreciated they were taking part in a marriage ceremony or understood its words, they had to understand the nature of the contract and be mentally capable of understanding the duties and responsibilities that normally attached to marriage. Rejecting the contention that capacity to marry had to be assessed by reference to the particular marriage proposal in question, in his Lordship's view the test was capacity to understand the nature of the contract of marriage not the capacity to understand the implications of a particular marriage. The analogy with capacity to consent to medical treatment was neither helpful nor appropriate, not least because medical procedures varied whilst the contract of marriage was the same for everyone; nor was marriage something the average person needed to obtain either expert advice or assistance on, in contrast to both medical treatment and litigation. Furthermore, when exercising its inherent declaratory jurisdiction in relation to an adult incompetent the court had no power to give consent on behalf of the adult but could only declare something to be lawful notwithstanding the absence of any valid consent by virtue of the operation of the doctrine of necessity, a doctrine which had no operation in relation to marriage. The lawfulness of a marriage depended exclusively upon consent and best interests were neither here nor there; nor, if a person had capacity to marry, was it necessary to show that they also had capacity to take care of their own person and property. It followed that the proper questions to be put to the experts were those formulated by E's representatives.


Sheffield City Council v E and another

FamD: Munby J: 2 December 2004

Robert Jay QC (City Solicitor, Sheffield) for the local authority; Adrian Whitfield QC (Irwin Mitchell, Sheffield) for E; Janet Waddicor (Howells, Sheffield) for S.

Reported by: Jeanette Burn, barrister



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