KC & NNC v City of Westminster Social & Community Services Department & Anor [2008] EWCA Civ 198

This case concerned the validity of a marriage under English law between an incapacitated adult male resident in England (IC) and his bride a citizen of Bangladesh (NK).  IC had severe autism and his intellectual functioning was below that of a 3 year-old child.  He needed full time support and was highly suggestible and vulnerable.  The local authority from whom IC was receiving a high level of support, sought a declaration from the High Court that he did not have the capacity to marry.  The response from the legal advisors to IC’s parents was that he had married the previous year in a Muslim ceremony which took place by telephone.  This ceremony was permissible according to Muslim (Sharia) law.  As a consequence of the agreed position between the parties at the hearing in the High Court, the Judge made the following declarations:

• IC lacks the capacity to marry
• IC lacks the capacity to consent to sexual relations
• the “marriage” of IC and NK … took place in Bangladesh and is a valid marriage in Muslim law and in Bangladesh civil law

He made further declarations that:

• the “marriage” of IC and NK … is not valid under English law
• that IC not be removed from the jurisdiction of England and Wales

KC and NNC (The family of IC and NK) appealed in particular against and further challenged the court’s jurisdiction to prevent IC’s permanent removal to Bangladesh.  The appellant’s case was based on 3 grounds:

(i) the validity of the declaration
(ii) the courts jurisdiction to prevent IC’s removal to Bangladesh and
(iii) how that order should be exercised

The Court of Appeal dealt quickly with the issue of jurisdiction, concluding that nothing in the Mental Capacity Act 2005 prevented the High Court exercising its inherent jurisdiction in relation to mentally handicapped adults.  The first ground of appeal was less straightforward.  Thorpe LJ held that the High Court had been wrong to declare that the marriage was invalid under English law.  Section12(c) Matrimonial Causes Act 1973 stated that the marriage was “voidable” but not “void” without an application for nullity.  It did not follow however that English courts were bound to recognise the marriage as valid and section 12 was in no way inconsistent with the High Courts capacity to refuse it recognition.  In addition the Court of Appeal upheld the High Court’s introduction of public policy considerations. The Court therefore allowed the appeal to a limited extent that the wording was changed to read that the marriage was “not recognised” as a valid marriage.  Hallett and Wall LJ agreed

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