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You are here: BAILII >> Databases >> England and Wales Court of Protection Decisions >> Southwark, (The London Borough of) v KA (Capacity to Marry) (rev 1) [2016] EWCOP 20 (23 March 2016) URL: https://www.bailii.org/ew/cases/EWCOP/2016/20.html Cite as: [2016] EWHC 661 (Fam), [2016] COPLR 461, [2016] EWCOP 20 |
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Strand, London, WC2A 2LL |
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B e f o r e :
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The London Borough of Southwark |
Applicant |
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- and - |
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KA |
First Respondent |
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- and - |
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MA |
Second Respondent |
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- and - |
Third Respondent |
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RN |
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____________________
John McKendrick (instructed by Bindmans LLP) for the First Respondent
Zimran Samuel for the Second & Third Respondent
Hearing dates: 7 October 2015
____________________
Crown Copyright ©
Mrs Justice Parker:
a) Litigation
b) Personal care and welfare
c) Sexual relations
d) Marry.
KA
a) He told her that he would like to have a relationship with a wife or girlfriend.
b) He understands the mechanics of sexual intercourse, i.e. what the man and the woman respectively do. He says that he has not experienced it, which I do not question.
c) He has a definite understanding of sexual feelings and his own sexuality, sexual desires and feelings. In an earlier session, not with Dr Alim, in the presence of his father, he said that he did not know how to self –stimulate. Dr Alim did not probe this, but on the basis of her discussions which gently explored the topic of his sexual urges, doubted this.
d) From his perspective sexual intercourse takes place within a marriage or committed relationship. He did not want to have sex with a stranger but was not able to explain why.
e) He understands that both parties need to consent. Generally he had a basic understanding of the role of the law and the police and understood that if one person does not consent it is called rape, and that the victim can call the police and the perpetrator would be arrested and detained in a police cell.
f) He understands that pregnancy entails a baby growing inside a woman's body, and that it is a consequence of sexual intercourse, but he thinks that pregnancy will always result from sexual intercourse, something he also told his solicitor. He was unsure how long a pregnancy lasts, believing that it was a very rapid process. This did not improve during the assessment. He does not understand the process of childbirth. He thinks that one has to be married to have children. Dr Alim said that notwithstanding his misunderstanding of the process, for him pregnancy was a foreseeable consequence of sexual intercourse.
g) At first KA struggled to understand the concept of sexually transmitted diseases. He was able to say that "there may be germs" but unable to say how they would affect someone or how he would protect himself. He was trying to find the words for illnesses but could not name one apart from AIDS, a word which he seemed to have learned by rote. Dr Alim was satisfied that he understood that there was a health risk from sex, and was not just parroting it. He "understood the link between illness and sex". She showed him photographs of male and female genitals with sores and lesions and he understood what she was showing him. She said "he understands the health risk, but wouldn't know how to protect himself from it, and couldn't judge the different types of health risk". "He knew sex could make you ill". He understood the need for protection but "struggled to retain knowledge of how he could protect himself and his partner". Dr Alim is clear that KA understands 'on a very rudimentary level' and is able toweigh
up that the consequences of sex are or may be pregnancy and ill-health. He would struggle to understand and
weigh
up that serious ill-health may result.
h) He had insight into his care needs and his need for care. He talked about his parents getting older and his need for support.
Marriage
a) To share his life and household.
b) For sex and affection.
c) To care for him.
d) With whom to have children and bring them up.
e) He understands that marriage involves two people (from his perspective a man and a woman). He did not express any knowledge of polygamous marriage, of which there is no example, on the evidence, in his family.
f) Although Dr Alim had not specifically assessed this, she thought that he would have some understanding of the concept of a ceremony, a special event. He has thought a lot about marriage and he understood the meaning of a picture of exchange of rings. He understands what it means to say 'I want to marry you.'
g) He understands that the relationship is exclusive, and in broad terms that marriage includes society, support and assistance, and the concept of sharing a common home and domestic life, and that two people come together and owe each other rights and responsibilities.
h) He said that once they are married husband and wife are family.
i) He knows the word divorce and that it brings a marriage to an end and the parties separate.
j) He did not at first understand the concept of joint property, and although he knew that a judge had a role in dealing with their property thought that someone else would get their property, but later said that maybe the property would be split 'half-half'. He repeated that last view at a later meeting. He showed a good understanding of inheritance.
k) He has a basic understanding that a wife, if from Bangladesh, would need to have entry clearance, but does not understand the detail; particularly that she would need to apply for residency, thinking that she would only need to have a passport.
l) He did not fully understand the concept of next of kin, although he understands that it connotes decision making and rights to be involved in decsison making particularly medical treatment. He thought that his parents would continue as his next of kin. Dr Alim thought this might also have a cultural component. I comment that whatever happens to KA his parents are highly likely to remain heads of his family and to be consulted and probably deferred to by a wife: irrespective of vulnerability of an adult. I consider this relevant to the assessment of his capacities.
The law
a) the "diagnostic test" s2(1) MCA 2005 (does the person have an impairment or disturbance in the functioning of the mind or the brain), and,
b) "the decision making test" s3 (1) MCA 20015 is the person (assisted if necessary in an appropriate way such as by sign language) unable to:
i) Understand the information relevant to the decision
ii) Retain the information
iii)Use
or
weigh
that information as part of the decision making process or
iv) Communicate the decision.
a) All practical steps to help P make a decision are to be taken before P is to be treated as unable to make a decision.
b) The fact that a person is able to retain the information relevant to a decision for only a short period does not prevent him from being regarded as able to make the decision.
c) The information relevant to a decsison includes information about the reasonably foreseeable consequences of:
(i) Deciding one way or another.
(ii) Failing to make the decision.
d) It is not necessary for the person to comprehend every detail of the issue including peripheral detail but the question is whether the person under review can "comprehend andweigh
the salient details relevant to a decision to be made" see Macur J (as she then was) in LBL v RYJ 2010 EWHC 2664 (Fam) at para 24, (a case concerning comprehension of a statement of educational needs in a placement decision). Different individuals may give different weight to different factors.
e) Unwise decisions are to be distinguished from decisions based on a lack of understanding of risks or inability toweigh
up the information about a decision ((s 1(4) MCA 2005).
f) The court must consider all relevant evidence in coming to a decision and not just the expert evidence. Baker J in CC & KK & STCC [2012] EWHC 2136 (COP)
i) IM v LM [2014] EWCA Civ 37; [2015] Fam 61 at paragraph 81 – Sir Brian Leveson
ii) X City Council v MB, NB and MAB [2006] EWHC 168 (Fam); [2006] 2 FLR 968 - Munby J
iii) D Borough Council v B [2011] EWHC 101 COP; 2012 [Fam] 36 at paragraph 42 - Mostyn J
iv) A Local Authority v H [2012] EWHC 49 (COP); [2012] 1 FCR 590 at paragraph 23 - Hedley J
v) The London Borough of Tower Hamlets v TB and SA [2014] EWCOP 53; [2015] 2 FRC 264 - Mostyn J
vi) A Local Authority v TZ [2013] EWHC 2322 (COP) - Baker J-
vii) Derbyshire County Council v AC [2014] EWCOP 38 at paragraph 36 – Cobb J
viii) Sheffield City Council v E [2005] 2 WLR 953 at paragraph 141 - Munby J
ix) Local Authority X v MM [2007] 1 FLR 443 – Munby J
x) York City Council v C [2013] Fam 10 at paragraph 23
xi) A Local Authority v AK & Others 2012 EWHC (COP) B29 at paragraph 20 - Bodey J
i) capacity
, and
ii) welfare.
i) The mechanics of the act.
ii) That sexual relations can lead to pregnancy.
iii) That there are health risks caused by sexual relations.
a) Health risks of sexual activity: what health risks must be perceived and to what extent.
b) Whether health risks include a risk of pregnancy, or whether it is a separate risk.
c) The extent of the understanding of pregnancy as a consequence and the process of pregnancy, and does there need to be an understanding of a possibility of pregnancy if P is homosexual.
d) Is an understanding of any protective method against either pregnancy or disease necessary.
e) What is the role of consent and does it relate to the assessment ofcapacity
or the exercise of
capacity
.
"Does the person have sufficient knowledge of… the sexual nature and character… of sexual intercourse, to have thecapacity
to choose whether or not to engage in it, the
capacity
to decide whether or not to give or withhold or withhold consent to it, (and, where relevant, to communicate their choice to their spouse)."
a) Marriage is status specific not person specific.
b) The wisdom of the marriage is irrelevant.
c) P must understand the broad nature of the marriage contract.
d) P must understand the duties and responsibilities that normally attach to marriage, including that there may be financial consequences and that spouses have a particular status and connection with regard to each other.
e) The essence of marriage is for two people to live together and to love one another.
f) P must not lackcapacity
to enter into sexual relations.
a) That a wife will need to obtain entry clearance.
b) How financial remedy law and procedure works and the principles are applied. The fact that he might lack litigationcapacity
in respect of financial remedy litigation does not mean that he lacks
capacity
to marry.