Re MAB X City Council v MB & Others [2006] EWHC 168 (Fam)

This case examined the issue of the proposed marriage of an incapacitated male (MAB) by his parents, to his first cousin R who lived in Pakistan.  MAB is 25 years old and on the Autistic Spectrum with impaired social understanding, limited communication and very little empathy.  He also exhibits challenging and unpredictable behaviour.  MAB was a patient for the purposes of the Civil Procedure Rules and was represented by the Official Solicitor.  An independent Psychiatrist concluded in his assessment that MAB lacked the capacity to marry.  Sheffield City Council v E [2004] applied.  There was no disagreement between the parties as to MAB’s lack of capacity to marry; the main issue was what relief, if any, should be granted to restrain MAB from being married or taken to Pakistan.  It was not disputed that MAB’s parents were deeply committed to his well-being but it had been their ambition for many years that he should marry his first cousin, R.  The local authority X was concerned that there might be social and cultural pressures towards marriage between MAB and R, despite the parents’ clear insistence that they would not force an unsuitable or unwanted marriage on their son or niece. X argued that it would be “disastrous” for MAB to get married abroad whilst he lacked capacity, because the marriage would not be considered valid in the UK and R would be barred entry.  Alternatively if they remained in Pakistan, the facilities for caring for MAB and parental support would be diminished.  X considered that injunctive relief would be necessary to promote and safeguard MAB’s best interests.  R had previously made applications for a visa to settle permanently in this country but had been refused on each occasion.  The family’s efforts to bring R to the country with a view to her marrying MAB were pursued with vigor and throughout a protracted period of six years.  This was being done at a time when the parents knew that the view of the expert was that MAB lacked the capacity to marry.  There was also an issue about MAB traveling to Pakistan since the experts agreed that MAB was unable to travel because of his Autism and learning disability.  Despite the expert view on MAB’s capacity and unfitness to travel minutes of a local authority meeting recorded his father’s determination to take his son to Pakistan to meet R with a view to marrying her.  The experts again advised his father against travel and of the risks that might bring to his son and others.  After MAB’s father confirmed to X that he was taking his son to Pakistan the local authority commenced proceedings seeking the High Court’s jurisdiction to protect MAB from what it considered to be a real possibility of harm.

In his analysis of the facts of this case Munby J was of the opinion that although any marriage which MAB entered into would be voidable, the court had a duty to intervene to prevent any potential harm which was foreseeable as a consequence of such a union.  He saw no reason in light of the overwhelming evidence not to make a declaration that MAB lacked capacity to marry. This meant that he could not enter into a valid marriage in the UK even if it was treated as valid in Pakistan.  His decision was based on the dual domicile rule (Dicey and Morris: Conflict of Laws) which holds that capacity to marry is governed by the law of each party’s antenuptial domicile.  This meant that a marriage was valid as regards capacity when each party had, according to the law of his or her domicile, the capacity to marry the other and it was (normally) invalid when either of the parties according to the law of his or her antenuptial domicile, lacked capacity to marry the other.  He summarised the point by stating that MAB’s incapacity to marry in the eyes of English law meant that no marriage entered into by him either in this country or abroad would be recognised in English law or by the English public authorities. 

The judge also had to decide whether to grant injunctions requested by X or accept the undertakings offered by MAB’s parents not to take him out of the jurisdiction of the court or cause him to undergo any ceremony of marriage.  He also had to decide whether MAB’s passport should be seized and held by agents of the court.  After consideration of the facts he concluded that MAB’s parents could be relied upon to uphold their undertakings, as they were conscientious, reliable and honourable people and he was prepared to accept their undertakings. 

He also agreed to reflect in his Orders that MAB’s condition might improve in the future and to make provision for variance or discharge.  He also clarified an issue which arose in a submission made by counsel for the Official Solicitor which he acknowledged was something not fully considered in the test he had formulated in the Sheffield City Council case.  This was that in any assessment of a persons capacity to marry, account must be taken of a persons capacity to consent to sexual relations and that an absence of capacity to have sexual relations might risk the commission of criminal offences contrary to the Sexual Offences Act 2003.  The sexual element in marriage required respect by each party of the right of the other to choose whether or not to engage in any sexual activity. The OS further submitted that a marriage contract would not necessarily presume that sexual relations should form part of the contract.   The court then considered in detail how such a test should be formulated.  It analysed the history of the law surrounding sexual activity and the sanctions available where consent was vitiated by fraud or mistake.  In R v Morgan an Australian case from the Supreme Court of Victoria, the test for the capacity to consent to sexual relations required a person to have “sufficient rudimentary knowledge of what the act comprises and of its character to enable her to decide whether to give or withhold consent”.  Munby determined that this was a correct statement and reflection of the common law in England and should stand.  He also decided that the same test should be applied in relation to the criminal law (Sexual Offences Act 2003) to determine whether a person has the capacity to consent to sexual relations. 

Comment

The threshold for the capacity to consent to sexual relations appears therefore to be a low one.  It will now be necessary in deciding whether a person has the capacity to marry to include in that examination a consideration of that person’s understanding of the nature and reasonable foreseeable consequences of such activity in basic terms, so that it does not lead to inconsistencies of approach between the civil and criminal law.

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