PM was a vulnerable adult with a significant global learning disability. Whilst it was clearly established that she lacked the capacity to litigate, her capacity to marry, to consent to sexual relationships and to decide on her own place of residence, were at issue.
Following an Islamic marriage ceremony to MZ (a Pakistani man whose immigration status was under question), PM became pregnant with B. When the immigration authorities notified the local authority (‘YLA’) that PM had married, they registered a caveat against the marriage.
Later, when MZ met with the Community Learning Disability Team, he informally agreed that he would not share a bed with PM nor have sexual intercourse with her. MZ also agreed not to go ahead with the civil ceremony until capacity issues were resolved. However, a caseworker with the Registrar General’s office later reported that he was satisfied that PM had capacity and that the marriage could go ahead, which it did.
After the birth of B, and following various interim hearings, care proceedings and COP proceedings were issued. The care proceedings approved of a plan for PM, MZ and B all to enter a parent and baby foster placement, although PM and MZ were prohibited from sharing a bedroom. Furthermore, an additional capacity assessment was ordered, with it agreed that no planning was to take place for B until capacity issues were resolved. MZ was also ordered to refrain from sexual intercourse or any sexual contact with PM.
Shortly before the hearing to determine PM’s capacity, applications were made on behalf of PM and MZ to abandon the hearing. It was argued that making a declaration would be contrary to PM’s best interests, because she clearly held the desire to live with MZ and B. The application stated that the Court’s power to make capacity declarations was discretionary, and that it was in PM’s interests that this should not be exercised due to the negative impact that being separated from MZ and B could have. The legality of the declaration was also at issue, in light of the Civil Procedure Rules r.40.20, as it was argued that the declaration failed to serve any relevant purpose. This was because it was felt to be improbable that the Official Solicitor would have wished to seek the court’s authority to present a nullity petition anyway, on the basis of PM’s best interests. It was argued that the court should reserve its protective powers for instances where there was a need to protect a vulnerable adult from abuse, and ‘particularly serious reasons’ that could justify legitimately intervening in PM’s rights under Article 8 of the ECHR.
Parker J rejected these claims by firstly maintaining that whilst section 15 of the MCA 2005 was framed in discretionary terms, the Court still lacked genuine discretion when making a declaration regarding PM’s capacity. It was a judicial decision on fact and law. It was also adjudged that those acting on behalf of PM and MZ had conflated the ‘best interests test’ with the ‘capacity test’. This was because the wishes and feelings of an individual, along with their Article 8 rights, were only relevant to a consideration of their best interests, not their capacity. Instead, the purpose of a declaration of capacity was to engage the powers of the Court of Protection after establishing a ‘factual position’. The Court also questioned whether the making of a declaration of incapacity would in fact cause PM any distress. Due to her extremely low levels of comprehension and reasoning, it was highly unlikely that she would understand the significance of it. Rather, it was the consequences from this declaration that would have caused her distress. In relation to the ‘relevant purpose’ argument, this was refuted by the fact that the arguments, and the passages used to substantiate them, seemed once more to conflate the ‘best interests’ test and the ‘capacity’ test. PM’s wishes and feelings were not relevant to the declarations here. To argue otherwise would be to expose PM, with impunity, to sexual relations to which she was not able to consent.
Regarding the capacity findings, PM was adjudged to lack capacity to consent to sexual relations. The Court adopted Mostyn J’s test in D Borough Council v AB, which required (1) an understanding of the mechanics of the act, (2) an awareness of the health risks involved and (3) an understanding that heterosexual sex might result in pregnancy. PM was unable to understand all the relevant information regarding this, and she was unable to retain, use or weigh the information as part of the process of making the decision. This was important, within the context of consenting to sexual acts, as the information relevant to this decision included the reasonably foreseeable consequences of deciding one way or another. Whilst it was conceded that PM understood the mechanics of sex, at a simple level based on experience, importantly she still lacked understanding of health risks, contraception and how conception takes place. Despite the Court recognising the profound encroachment upon one’s personal autonomy that a restriction of sexual relationships could have, the Court maintained that a person with disabilities should still have their bodily integrity respected. To allow someone to become pregnant, and subsequently bear a child, without them legitimately consenting to this would clearly deny them their personal autonomy. And whilst counsel on behalf of MZ submitted that PM could not be regarded as lacking capacity in this regard because MZ, as a good Muslim, would be faithful, the Court rejected this non-sequitur by confirming the decision in R v Cooper. As Parker J concluded, ‘I do not accept in this respect I should regard capacity as person rather than issue specific’. And finally, whilst the Court had appreciated that PM was motivated to learn more about sexual relations, it was conceded that not only would this take a long time, but also that it would be difficult to ascertain whether she truly understood the information that was being conveyed, or was merely just repeating the information, which she had frequently done during capacity assessments. It was also feared that by exposing her to sexual terminology and ideas, it would make her more vulnerable when living separately from MZ.
Additionally, PM was not found to have the capacity to consent to marriage. This decision was reached not only on the basis of her inability to consent to sexual relations, but also because she was unable to understand the obligations and responsibilities of marriage, and weigh up her options accordingly. Whilst PM possessed a rudimentary understanding of the concept of marriage by being able to identify with the concepts of love, sex, cohabiting, companionship and mutual parentage, she failed to comprehend the concepts of status, rights, responsibilities, obligations, exclusivity and agreement. Furthermore, within the context of her own marriage, her understanding did not extend to an appreciation that the relationship could be brought to an end, nor to a recognition that the marriage may have been relied upon to support an immigration application (as was alleged on the facts of the case).
The final capacity issue concerned PM’s capacity to determine where she would live. Whilst PM was able to express a clear desire to live with MZ and B, she was unable to address and evaluate other alternatives to this arrangement. PM was also unable to comprehend that the court may prohibit her from living with MZ and B. It was therefore concluded that PM lacked capacity to decide on her place of residence.
The Court concluded, for the time being, that it would not be in PM’s interests to live independently with MZ. Not only were questions raised about MZ’s ability to attend to PM’s simple care needs, but also there was a strong suspicion that MZ was using PM to serve his own needs. Whilst his motivations for being with PM may have been different in the past, it was apparent that following an increasingly strained relationship between the two, MZ was relying on his marriage and fatherhood of B in order to support his claim to remain in the country. As Parker J inferred, ‘[a]ll pretence that this could be a functioning marriage had now evaporated’. Despite the fact that the Court foresaw the distress and grief that this decision would likely cause PM, it was still nonetheless found to be in her best interests to avoid living independently with MZ. The Court found that it would not be in PM’s interests to be exposed to the conflict and strain that would result from the care of B, the future status of her relationship with MZ and the restrictions imposed on this relationship.
In a supplementary section to the judgment that strictly stands as obiter, the Court examined the nature of ‘forced marriages’. By drawing on the proposition set out in XCC, Parker J found that the reality of consent was already absent in cases of incapacitous individuals, rendering a marriage involuntary. Therefore, if a lack of capacity was already established on the facts of the case, ’duress’ would not be required in order to prove that a ‘forced marriage’ had taken place. This was because if an incapacitous person consented to a marriage, they would not have been able to give free and full consent in accordance with section 63A(4) of the Family Law Act 1996. Furthermore, the Court also endorsed the use by practitioners of ‘forced marriage protection orders’ (‘FMPOs’) to protect incapacitous individuals in relation to marital proceedings. So, where an individual was believed to lack the capacity to marry, the court would be advised to make an FMPO against the Registrar General in order to stop the marriage taking place. On the facts of this case, the local authority should therefore (as a ‘relevant third party’) have sought an FMPO to prevent PM’s marriage.