Case No. COP 11950943
IN THE COURT OF PROTECTION

Royal Courts of Justice,
Strand,
London WC2A 2LL

30th November 2012

Before:

THE HONOURABLE MR JUSTICE BODEY

B E T W E E N
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	A LOCAL AUTHORITY	APPLICANT	
			
	And		
			
	AK (by his litigation friend) & OTHERS	RESPONDENT	
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(Transcribed from CD by Cater Walsh Transcription Ltd.,
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MS V. BUTLER-COLE  appeared for the Applicant.

MR A. BAGCHI  appeared for BK.

MR DK  represented himself

MR J. O’BRIEN  appeared for the Official Solicitor.

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ANONYMISED JUDGMENT

THE HONOURABLE MR JUSTICE BODEY:

A.  Introductory.

1.	This is an application by a Local Authority (“the Local Authority”) for the determination of an issue as to whether a severely brain damaged man (“AK”) had the capacity to enter into a marriage in November 2010.  The parties to this issue and their positions are as follows.
(a)  The Local Authority, represented by Miss Butler-Cole, submits that AK lacked capacity to marry.
(b) BK, whom AK married on 17th November 2010, is represented by Mr. Bagchi, who submits on her behalf that AK had the necessary capacity to marry, such that the marriage entered into by AK and BK is valid.
(c) The brother of AK, DK, who has represented himself, is of the view that AK lacked capacity to enter into marriage.
(d) The Official Solicitor, who acts on behalf of AK, and is represented by 
Mr O’Brien, also submits that there was a lack of capacity.  

2.	All counsel have submitted written presentations augmented by oral submissions.  I am grateful to them and to DK for the thoughtful and collaborative way in which this hearing has been conducted.  The question of capacity to marry is only one of a number of issues which arise, and have arisen, in respect of AK but I need say no more about them here.  No-one disputes that he lacks capacity to litigate and lacks capacity as to various other decisions, for example as to his residence, treatment, and care regime.

3.	I have read a considerable volume of documentation, including the statements of many witnesses, both lay and professional, many medical reports and records, minutes of meetings and so forth.  I have heard evidence from the following witnesses on behalf of those asserting that AK lacked capacity:  (i)  AK’s brother, DK;  (ii)  AK’s elderly mother, FK;  (iii) Dr R, Consultant Neuropsychiatrist, who has had considerable contact with AK as one of his treating clinicians;  (iv)  Mr Q, Consultant Neurosurgeon and Clinical Director of a brain injury rehabilitation service;  (v)   Dr. T, Consultant in Neurological Rehabilitation; and (vi)  SW, AK’s current social worker, who has seen him on some 30 occasions.  I have heard the following witnesses in support of BK’s case that AK had capacity: (vii) BK herself; (viii)  GH, the adult daughter of BK;  (ix)  Mrs J, a friend of BK and ‘a witness’ to the ceremony;  (x)  Mr. R, who was AK’s ‘advocate’ from August 2010 and at the time of the wedding, and who considers that AK had capacity to marry;  (xi)  Miss v, an Assistant Registrar of Marriage, who assisted at the wedding ceremony;  (xii) Mrs E, Deputy Superintendent Registrar of Marriages, who interviewed the couple on 26th October 2010 and later conducted the ceremony;  (xiii) Mr. N, Superintendent Registrar of Marriages for the registration service of the County Council concerned, who gave explanatory evidence about the practice and procedures involved in register office marriages; and (xiv) Dr S, jointly appointed Consultant Psychiatrist.  BK relies on part of Dr S’s written report in which, based on his then interpretation of the case law on capacity to marry, he concluded that AK had such capacity.

4.	The immediate background to the marriage is itself significant and raises issues of fact.  It is significant because it helps to shed light on the dynamic as between AK and BK, and as to the sort of emotional atmosphere in which AK would have been likely to have found himself when in BK’s company.  Before coming on to those factual aspects of the case, however, I need first to give a brief overview of the wider background and to set out the law.  I shall then review as shortly as possible the copious expert evidence about AK, since it helps to explain the relationship dynamics and informs the probable manner in which the marriage came to be planned and celebrated.  Many of the details in this judgment are kept deliberately vague to help protect the identity of the parties.

B.  Brief Overall Background.

5.	AK is 56.  He had no brain damage or impairment until 2006. His younger brother DK is 52.  BK is 55.  In 1975 AK and BK had a relationship as teenagers lasting for about a year. That broke down and they went their separate ways for about the next 30 years.  In the late 1970s AK (aged 22) was married to a woman who I will call ‘A’.  That marriage lasted until about 1983 when the couple were divorced.  BK too was married in the late 1970s and was divorced in the late 1990s.  In the late 1990s AK (aged 43) married a woman whom I will call ‘AS’.  Later that year she gave birth to the couple’s son ‘W’ who is now 13.  In about 2005 the couple separated.  AK returned to live with FK, his mother.  The separation of AK and AS was acrimonious and created a lot of stress, the reasons for which do not now matter.  In the result AK began to drink heavily.  

6.	In December 2006 AK (aged 50) suffered the first of two head injuries when he fell. It was a severe head injury causing profound damage to both frontal lobes of his brain and to the right temporal lobe.  He has not significantly worked since.  He was in hospital for some time.  Subsequently, on a date in 2007, he was discharged to his mother’s home.  In the same year he and AS were divorced although the financial arrangements between them were not settled until relatively recently, with DK acting as AK’s litigation friend.

7.	In about December 2007 AK sought out and met BK.  A relationship between them was rekindled and AK would stay at BK’s home a number of nights a week instead of at his mother’s.  There was a sexual relationship between them.  BK says that he proposed to her, which she accepted, although there was no ring and no date set.  It seems that AK’s excessive drinking continued and in the summer of 2008, following abnormal liver tests, he was admitted to hospital for alcohol misuse and various behavioural difficulties.  At about that time he ended the relationship with BK, telling her (she says) that he was too unmanageable for it to work.

8.	In November 2008 AK suffered a second head injury when hit by a bus.  He sustained a left temporal subdural haematoma and a traumatic subarachnoid haemorrhage to the right parietal lobe with some intraventricular haemorrhage.  Dr S said in evidence that it represented and represents ‘catastrophic brain damage’ affecting virtually every aspect of AK’s functioning, particularly from the psychiatric and psychological point of view.  AK was left with hugely impaired cognitive capacity and executive functioning.  As soon as BK learnt of AK’s second accident, the day after it happened, she began to visit him in hospital and she has continued to do so more or less daily ever since.  AK underwent various moves of hospital until in November 2009 he was eventually placed at a neurodisability unit (“the placement”) quite near to FK’s (his mother’s) home, where he has essentially been resident to date.  Like BK, his mother FK and his brother DK visit him at the placement regularly.  

9.	On 24th May 2010, during a ‘best interests’ meeting attended by BK and her solicitor, reference was made to a report and a letter from Mr Q, in which he said he was “...quite certain that, because of cognitive impairments affecting memory, information-processing and judgment, AK does not have the capacity to enter into any legally binding contractual relationship, such as marriage.”  The minutes of that meeting record AK’s mother FK saying that BK had asked AK to marry her (BK), at which the chairman of the meeting responded that AK was “...clearly not in a position to agree to marriage.”  The minutes of a subsequent best interests meeting dated 18th July 2010 (four months before the marriage) record that through her solicitor BK ‘accepted the results of the capacity test’.  That was clearly a reference to the report of Mr Q just mentioned.  In the result, SW told me that the Local Authority did not feel it necessary to think further about entering a caveat against AK’s getting married.

10.	On 26th October 2010, BK asked AK’s mother FK if she could take AK out for the day to visit a local museum.  FK agreed to this.  In fact, BK took AK to the local register office accompanied by AK’s advocate Mr. R, where she and AK went through the process of attesting their notices of intended marriage.  BK and Mr. R say that AK was very clear with them that he did not want members of his family nor anyone else to be told of the intended marriage.  AK’s mother and brother were therefore kept in the dark that BK had taken this step.

11.	On 12th November 2010 (a week before the wedding) AK underwent a bladder-stretch operation.  BK prays in aid the fact that the surgeon and anaesthetist accepted AK’s consent to his undergoing the operation and to his subsequent discharge from the hospital.

12.	On 17th November 2010 BK asked FK for her permission to take AK to an event organised locally by Headway, the brain injury charity.  FK agreed.  In fact on the way to the event BK took AK to the register office where they were married by Deputy Superintendent Registrar Mrs E, an experienced registrar.  AK’s family, FK and DK, were not made aware of the marriage until about three weeks later, when Mr. R telephoned FK and told her of it.  She was extremely upset. Unhappily, the already poor relations between (i) herself and DK (on the one hand) and (ii) BK (on the other hand) deteriorated and still remain at a very low ebb.

13.	On Friday 4th February 2011 BK took AK out from the placement and failed to return him.  On the same day there was a best interests meeting which BK did not attend, saying that she was aware that FK and DK were going to be in attendance.  Mr. R visited AK at BK’s house and spoke to him alone there.  He then attended the meeting and read a statement on behalf of AK in which AK was reported to have wanted the meeting to be told: (i) that he did not want to attend, as he already knew the outcome (regarding residence) since the professionals were not interested in his best interests but their own (I paraphrase); and (ii) that he did not want to see his brother DK at the meeting.  This caused a verbal brush at the meeting between Mr. R and DK, who said he did not believe AK would have said such a thing.  The Local Authority were concerned over that weekend that BK was not returning AK to the placement, as he did not have his medication with him and they were not satisfied with the ‘aids’ available for him at BK’s home.  When SW and an Occupational Therapist attended there, BK was reluctant to give them access.  They wanted to see AK on his own to try to ascertain his wishes and feelings about moving from the placement like this, but BK refused to let them do so.  This led the Local Authority to commence proceedings in the Court of Protection and an interim order was made on 9th February 2011 requiring, in effect, that AK be returned to the placement.  BK duly complied with that order.  SW told me, and I accept, that on his return to the placement AK seemed pleased to see her and to be back.  AK has (as I have said) lived and been cared for there since.

C.  The Law

General

14.	The law by which the decision in question is to be determined is set out in the first three sections of the Mental Capacity Act 2005, which came into force on 1st October 2007.  I need refer here only to those sections most relevant to the issue before me.  

By S1(2): “A person must be assumed to have capacity unless it is established that he lacks capacity.”  This presumption of capacity places the burden of proof on an Applicant (here the Local Authority) seeking a finding of incapacity at the material time.  

By S1(4): “A person is not to be treated as unable to make a decision merely because he makes an unwise decision.”

By S2(1): “...a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or disturbance in the functioning of, the mind or brain.”  It is common ground that the ‘impairment or disturbance’ aspect of this section (“the diagnostic test”) was satisfied regarding AK at the material time.  

By S1(3), a finding of lack of capacity must not be made on account of a person’s age or appearance, or on the basis of unjustified assumptions about his capacity.

By S2(4): “In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities.”

By S3(1): “For the purposes of S2, a person is unable to make a decision for himself if he is unable – 

(a) to understand the information relevant to the decision;

(b) to retain that information;

(c) to use or weigh that information as part of the process of making the decision;

(d) or to communicate his decision...”

By S3(3): “The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.”

By S3(4): “The information relevant to a decision includes information about the reasonably foreseeable consequences of: 

(a) deciding one way or the other, or

(b) failing to make the decision.”

15.	It goes without saying that the court must have regard to all the evidence: that of the experts and that of lay witnesses as to fact, taking an overview of the entirety of the relevant circumstances.  In so doing the court has to guard against an over-paternalistic approach, as Munby J (as he then was) said at paragraph 144 of Sheffield City Council -v- E & Another [2005] 2 WLR 953 (“Sheffield”): “...there are many people in our society who may be of limited or borderline capacity but whose lives are immensely enriched by marriage.  We must be careful not to set the test on capacity to marry too high, lest it operate as an unfair, unnecessary and, indeed, discriminatory bar against the mentally disabled.”  Mr. Bagchi submits that, since the underlying subject matter here consists of a duly celebrated marriage, the court should not take any decision which might lead to the subsequent annulment of the marriage unless the evidence is compelling.  It is not easy to correlate this with S2(4) of the Act (above) which expressly imposes ‘the balance of probabilities’ as the standard of proof.  Whilst that therefore has to be the standard, I will keep in mind the seriousness of the underlying issue when reaching my decision and will not decide lightly that the prescribed standard has been met by the Local Authority.

16.	Mr. Bagchi further submits that the decision about AK’s capacity to marry needs to be taken coldly on the basis of the expert and other evidence, such that if and to the extent that there may be some respects in which BK could be criticised, that should not be allowed to influence the court’s determination as to AK’s capacity.  I accept that submission.  The relevance of BK’s role is merely as to the extent to which AK may or may not have been under her conscious or unconscious influence in forming his stated attitudes, wishes and feelings.  

The Test for Capacity to Marry.

17.	I need to set this out in more detail than would generally be necessary because of an uncertainty as to the test felt by one of the experts, Dr S, leading to his conclusion that on one interpretation AK had capacity to marry at the material time.  Following the coming into force of the MCA 2005 on 1st October 2007, the aim has been to deal with mental incapacity cases by reference to the Act itself without calling upon pre-Act case law for guidance, although there may be cases where it does remain necessary to do so: RT -v- LT [2010] CoPLR 1061 at paragraphs 40 and 52.  Capacity to marry is one such example of the need to look at pre Act case law.  The S(3) requirement of an ability to ‘understand, retain, use and weigh’ information begs the question ‘what information?’.  Regarding marriage that question is answered by pre-Act authority, in particular by Sheffield (above).  There, after a far-ranging review of case law on this topic, Munby J propounded the following: (i) that it is not enough that someone appreciates that he or she is taking part in a marriage ceremony or understands the words; (ii) that he or she must understand the nature of the marriage contract; (iii) that this means that he or she must be mentally capable of understanding the duties and responsibilities which normally attach to marriage; and (iv) that the contract of marriage is in essence a simple one which does not require a high degree of intelligence to comprehend.  Munby J laid down further that the issue is whether the individual had the capacity to understand the nature of the contract of marriage ‘full stop’; not the implications of a particular marriage to a particular person.  Otherwise the necessary distinction between capacity and ‘best interests’ would be compromised.

18.	At paragraph 132 of Sheffield, Munby J set out in a non-exhaustive list the information which an individual needs to have the ability to understand in order to have capacity to marry: “One must be mentally capable of understanding the duties and responsibilities that normally attach to marriage ... marriage, whether civil or religious, is a contract formally entered into.  It confers on the parties the status of husband and wife, the essence of the contract being an agreement between a man and a woman to live together and to love one another as husband and wife to the exclusion of all others.  It creates a relationship of mutual and reciprocal obligations, typically involving the sharing of a common home and a common domestic life and the right to enjoy each other’s society, comfort and assistance.”  At paragraph 56 of X City Council -v- MB, NB and MAB [2006] 2 FLR 968 Munby J added to the requirements for capacity to marry a need for capacity to consent to sexual relations (a point which had not arisen in Sheffield) because a sexual relationship is generally implicit in marriage.

19.	In Local Authority X -v- MM and KM [2007] 1 FLR 443 Munby J repeated what he had said at paragraph 134 of Sheffield, restating how the S3 test for capacity (which was then about to come into force) fits with Sheffield.  He explained that the test of being able to ‘understand, retain and weigh up’ under S3 is just as applicable where the question is whether an individual has the capacity to marry as it is where the question is whether he or she has the capacity to take any other decision: “...it is simply that such a refined analysis is probably not necessary where the issue is as simple as the question whether someone has the capacity to marry, or to consent to sexual relations.”  In other words, because for most people, marriage is to be regarded as a fairly straightforward concept (compared for example with litigating, or with many medical procedures) one would not normally need to spend too much time on assessing an individual’s ability to ‘understand, retain, use and weigh’ the information about marriage which is referred to in Sheffield.  Nevertheless, there will occasionally be cases where the degree and/or nature of the individual’s impairments does make it necessary to do so, because for him or her a decision about marrying is not actually a simple one.  This is one such case.  I shall need to revert to the point below on the issue of how Dr S struggled with the test in law and came to the original conclusion that AK had capacity.

20.	Last on the question of the test for capacity to marry, there has been discussion at this hearing about two other issues.  The first is as to whether or not one aspect of the information required to be understood by an aspiring spouse (either as one of the consequences arising from the status of marriage, per Sheffield, or as being a ‘reasonably foreseeable consequence’ of a decision to get married, per S3(4) of the Act) is that his or her financial position may be affected by the concept of marital ‘sharing’, particularly if the marriage failed and there were financial remedy proceedings.  The point has potential relevance here because of various things said by AK suggesting that he does not understand that his apparent wish for his property to pass to his son J could be affected by marriage; nor that his and BK’s assets would not necessarily remain on the basis ‘what’s hers is hers and what’s mine’s mine’, to use his own words (albeit said when tired).  Dr S said that AK had a firm view that things should not be shared and that he (AK) told him that there are no legal or financial consequences of marriage.  It was clear during argument however that a requirement of being able to understand and weigh up the sharing aspect of marriage, in terms of one’s property and/or income, is far from straightforward.  What exactly, for instance, do individuals need to understand?  What questions exactly would have to be asked of them?  And how exactly would the concept of ‘sharing’ be explained to them?  Would the test (intended to be fairly simple) become more complicated, or the ‘bar’ for capacity end up being raised?  And would one run the risk of excluding individuals on a personal circumstances basis?  Miss Butler-Cole, although running this point, fairly accepted that it is not crucial to her case and the Official Solicitor suggested that the court should not ‘go there’ unless this aspect were critical to outcome.  I agree with that and shall not ‘go there’ in this case.  The same observations apply to the second issue raised but not pressed by Miss Butler-Cole, namely as to whether a reasonably foreseeable consequence of marriage which needs to be understood and weighed up, is its likely effect on relationships within one’s existing family.  Such a requirement would be likely to blur the distinction between ‘marriage generally’ and ‘marriage to a particular individual’; but again it is not necessary to ‘go there’ in this case.

D.  The Medical Evidence.

21.	I shall not set out here the qualifications of the experts as these appear from their reports. They are all highly qualified and experienced in their respective fields, as briefly touched on under the heading ‘Introductory’ above.  

Mr Q, as I have said, expressed the opinion on or about 20th May 2010 that AK lacked capacity to enter into marriage.  When interviewing AK on 29th April 2010 Mr Q had asked him what he understood by ‘marriage’ and he says that AK immediately described it as ‘a relationship between two people who share their lives, make plans together and live together’.  In his oral evidence Mr Q said that up and until that question AK had been hesitant and incomplete in his responses, but it was as if the word ‘marriage’ triggered something off, with AK giving his answer (as it seemed to Mr Q) “...off pat, in a very clearly expressed and well constructed sentence”.  During the same interview (29th April 2010) Mr Q found AK to be disorientated as to day, date, month and year, believing that it was the 1990s.  AK told him that he was at the placement ‘to work’ (AK is far too physically disabled to do so) and that he lived somewhere else nearby.  Asked who visited him, AK listed his brother (DK) his mother (FK) and a friend whom he named (and who did used to visit AK).  At first AK did not mention BK but after prompting he said that she too visited him.  AK told Mr Q he thought that BK’s last visit had been some weeks ago, whereas Mr Q ascertained that it had been a few days previously.  Mr Q spoke of AK having ‘a good social façade, day to day communication skills, and the ability to recognise individuals even if he could not name them’.  He expressed himself as being very clear that AK was not in a position to take a decision as to whether he should be taken by BK to her own home for her to look after him there, as was BK’s then wish.  These conclusions of  Mr Q about AK’s capacity in May 2010 to take decisions regarding residence and getting married represent the most recent medical expert view as at the time of the marriage in November 2010.

22.	On 11th March 2011, four months after the wedding, Mr Q visited AK again and interviewed him.  Asked where he was, AK could not say without considerable prompting. He again said he was there to do some work and lived locally, naming his mother’s village.  Asked where he lived in that village he said that it was ‘a correction facility’.  Mr Q asked him to remember three objects, a chicken, a car and a tree.  They then spoke for a few minutes about other things, after which he asked AK to recall the three words.  AK remembered ‘car’ but needed a good deal of prompting to remember ‘tree’ and could not recall ‘chicken’ at all, in spite of considerable prompting.  He confabulated (coming up with false suggestions) as to what the words were, demonstrating to Mr Q that his ability to retain and recall information was severely impaired.  When Mr Q asked AK how he might handle a large sum of money he replied at once that he would ‘invest it wisely and safely’, sounding to Mr Q like something which AK had been taught or primed to say.  Asked about his most frequent visitors, AK identified his brother (DK) and his mother (FK) but no-one else.  When, after much unsuccessful encouragement, Mr Q suggested that BK must be a regular visitor, AK replied that she did come to see him ‘from time to time’.  In fact she was visiting him more or less daily.  Asked whether AK’s family had been at the wedding (which they had not) AK said vaguely that he thought so, although he had not seen them.  In his report dated 28th March 2011 based on that interview, Mr Q restated the view expressed on 20th May 2010 that AK did not then, nor in March 2011, have capacity to give a valid consent to marriage.  He described AK’s ability to retain even simple information and use it as part of a reasoning and decision-making process as ‘very poor’.  Cross-examined by Mr. Bagchi, Mr Q accepted that in April/May 2010 the English case law on the test for capacity to marry had not been drawn to his attention and he acknowledged that Sheffield sets a lower standard than the test in Scotland which he, Mr Q, is accustomed to apply.  Asked to apply to AK as at November 2010 his now-understanding of the ‘Sheffield requirements’ for capacity to marry, Mr Q replied that he did not think AK had such capacity.  He denied having said on the telephone to BK on 27th March 2011 (as BK asserts) that he thought AK had capacity to marry, pointing out that it would have been odd for him to have done so since his report the next day (28th March 2011) specifically stated the opposite.  I am satisfied that Mr Q did not tell BK over the telephone that AK had capacity to marry.  BK must have misunderstood something else which Mr Q said or meant.  

23.	Dr R was AK’s treating clinician for some five months between June and November 2009 and has been so again over the last 13 weeks whilst he has been an in-patient at her hospital for his medication to be adjusted.  She and her team also worked with AK at the placement for some nine months from April 2011 until the beginning of 2012.  She therefore has a good direct knowledge of AK for a period ending about a year before the marriage and for a period starting five months after it.  In her report of November 2012 she mentions comprehensive neuropsychological profiles of AK carried out in, respectively, 2009 and 2012, which show the same pattern of deficits three years apart with no clinically significant improvement or deterioration between the two test dates.  These objective tests confirm her own clinical impression that, barring minor fluctuations, AK’s cognitive capacity is the same now as it has been at any point in the last two years.  I find that to be the case.  Any such fluctuations would not in Dr R’s opinion be such as to bring AK into the capacitous range.  She says she has found AK able to keep simple information in mind so as to repeat it, but as having significant difficulty in doing so whilst manipulating it to inform a response.  She says that on direct questioning he was able to say that marriage ‘...is being faithful to one person’, but that on further questioning he was unable to elaborate.  In her oral evidence, speaking of November 2009, Dr R said that if one suggested that AK do something he would do it. This confirmed the discharge summary from her hospital dated 24th November 2009, that: “...AK is very compliant with other people and is at risk of abuse and exploitation by others, as he would be happy to go anywhere with anybody who said they were a friend of his.  He also does not have the capacity to consent to long-term relationships for the above reasons.”  Asked what view she would take if AK were to describe his brother DK as ‘his brother’ Dr R replied that ‘...it would be difficult to know if he was ‘parroting’ this, or whether it really brought back childhood memories of a brother relationship’.  She was clear that AK’s impairments are not such that he might have capacity one day and not another.  She spoke of a ‘good social façade’ and explained that he would be capable of very socially suitable conversations, but with no understanding beneath the surface.  She told me that in clinical interviews AK retains information for only between about one and five or ten minutes and that within ten or fifteen minutes of visitors leaving he would have forgotten that they had been there.  

24.	In cross-examination by Mr. Bagchi Dr R said she could not find in any of her interviews with AK that he understood the contract of marriage, although she accepted that he may not have wanted to talk to her about it.  She said that she did not think AK had the capacity to understand that marriage creates, to use the words of Sheffield ‘a relationship of mutual and reciprocal obligations typically involving the sharing of a common home and domestic life’.  She said that AK does not ever talk about sharing his life with BK and that nothing has suggested to her, Dr R, that he understands marriage as anything other than sexual faithfulness.  Pressed on this she thought that whilst he could perhaps understand the concept of living together, he could not weigh it up so as to take a capacitated decision.  She accepted that families sometimes get more out of brain injured individuals than experts, but said that the results are usually ‘within the same ballpark’.  

25.	Dr. T expressed her view at a professionals meeting on 6th October 2011 when she said: “...I don’t think AK has any idea of the concept of being married ... if someone said to him ‘I am going to marry you’ I think he would say ‘yes’ ...”  She stated to the meeting that if AK cannot remember now whether he is married or not then, from her perspective as a clinician, he did not have capacity in November 2010.  In her oral evidence Dr T described herself as familiar with the MCA 2005 both in her practice and in the medico-legal context.  She stated that she did not think AK has capacity to enter into any contract.  Asked if this included marriage, she replied ‘any contract with effects on property and finances’.  It may be said that Dr T reached her view too much based on the possible effects of marriage on one’s property and finances and I have that possibility in mind.

26.	Dr S has prepared a substantial report running to 103 pages into all aspects of AK’s capacity to take a variety of decisions.  He interviewed AK on three occasions, 19th June 2011 (seven months after the marriage); 22nd June 2011, three days later; and 18th July 2011, about three weeks later than that.  It is difficult fairly to summarise these interviews; yet together with Miss C’s (the Official Solicitor’s representative’s) attendances on AK, they are essential for getting an accurate impression of the depth of AK’s mental and cognitive deficits.  I have therefore summarised Dr S’s and Miss C’s interviews in chronological order in a Schedule which I will annexe to this judgment.  

27.	On capacity to marry, Dr S first set out a balance sheet of those factors in favour of AK’s having capacity [E110] and those against [E111].  He noted the inconsistency of AK’s answers in interview about his marital status (see my annexed schedule), AK having stated variously that he was married (whether to BK or to ‘Lillian’); about to be married; divorced; and single.  Likewise, as regards his relationship with BK, AK told Dr S variously that he was married to her; had never married her; was divorced from her; was an ex-partner of hers; was about to marry her; was just friends with her; and was just a sexual partner of hers.  At one point, he told Dr S that in all he had been married about eight times (in fact, three).

28.	At E113 Dr S considered specifically the Sheffield requirements for capacity to take a decision about marriage, commenting separately on each.  He concluded that: “...applying case law as it currently stands, AK would appear to have capacity to marry.”  He went on to express his concern in ‘unequivocally coming to that conclusion’ in view of AK’s inability to recall reliably that he is married and because, when he does think himself married, it is not necessarily to the right person.  The crux of the matter appeared to Dr S to be whether or not it is a prerequisite for a person to have to remember that he or she is subject to a marriage contract.  He said he felt there was a strong imperative for the court to examine in detail the current test as to capacity, so as to determine whether it requires modification or clarification.  He did not think that at the time of the marriage AK would have given regard to any of the consequences of the marriage unless aided so to do.  He expressed the opinion that AK “...is not able to make decisions free from the influence of others as he is highly reliant on others giving him or reminding him of the facts of his current situation.  He is highly vulnerable as to what information he receives and the order it is received in.”  Dr S explained that AK retains best the last information given to him.

29.	Asked at the experts meeting on 6th October 2011 whether AK has capacity to marry Dr S replied: “...as a clinician no he does not.  Looking at the MCA principles, again no.  However, following the case law, yes he does have capacity.”  He described the case law as having ‘fallen down’ in that AK knows what marriage is, having been married twice before, although he cannot remember who he is married to.  As to AK’s capacity in November 2010, he said that if AK does not have capacity now (October 2011) then he did not have it then.  In his oral evidence Dr S described the profound effect of the brain damage on AK’s memory and on his ability to reason, especially in the abstract.  He explained the difficulty which he, Dr S, had felt under from what he perceived as a tension in that: “...case law is concerned with understanding a contract [of marriage], whilst the MCA is more around how a person makes a decision, which is a different emphasis.”  He felt that AK met the criterion of understanding the idea of marriage, although he did not think AK would have understood all the consequences of marriage.  He too (like Dr R) mentioned the financial implications of marriage and the possible impact on the individual’s relationships with his or her family.  Asked in cross-examination how he thought AK would cope if asked who he would prefer to see as between BK and FK (his mother), Dr S replied that AK would answer differently depending on how it was put to him.  Even if it were put in the same way, he said that one could get a different answer depending on how often it was put.  AK would be able to understand segments of the information but not all of it together and would be unable to use and weigh it.  He said it was essential for information to be given to AK neutrally.  He agreed that the lifestyle changes brought about by marriage would have to be spelt out to AK in order to ensure that he would use the likelihood of those changes within the decision taking process.

30.	When Dr S was asked to leave aside his concern about AK’s not being able to weigh (i) the financial/property consequences of marriage; and (ii) the impact of marriage on family relationships (i.e. leaving just the so-called Sheffield requirements as to what an individual has to be able to take on board), he concluded that AK ‘...may be able to do so’ (ie take a decision about marriage) but that he would lack the short-term memory to enable an assessor to know what he had actually taken into account.  Pressed by myself to place ‘...may be able to do so’ onto a spectrum of probability, Dr S placed it as 30% likely that AK could retain the necessary Sheffield information so as to use it. He added that one would not be able to stop false beliefs creeping into AK’s thinking (for example that marriage would ‘give him holiday pay’ and give him ‘control over his money’ – see my Schedule).  In cross-examination by Mr. Bagchi Dr S accepted that his figure of 30% was a guess, but he described it as being ‘as educated a guess as I can give’.

31.	I have looked at the letter of instruction to Dr S.  It was so constructed as to set out the first three Sections of the MCA 2005 and then, under a separate section headed “Common Law”, as to set out the different tests for capacity in respect of different kinds of decision.  Under the sub-heading ‘capacity to marry’ there simply appears this: “The test was reviewed by Sumner J in M –v- B, A and S [2006] 1 FLR 117 who held as follows, adopting the earlier formulation of Munby J: (1) has the individual the capacity to understand the nature of the contract of marriage generally, as opposed to the implications of marriage to a particular individual?  (2) Has he the capacity to understand the responsibilities created by the contract of marriage generally?  And (3) has he the capacity to give valid consent to marriage generally?”. With the benefit of hindsight, it seems to me that the layout of this letter may unwittingly have helped to lead Dr S into his original difficulty in coming to a firm conclusion about this case, in that he interpreted it as implying two tests for capacity to marry, one at common law and the other under the MCA 2005; whereas there is but one test.  It requires (a) the capacity to ‘retain, use and weigh’ the information set out in Sheffield and (b) the capacity to decide about having sexual relations.  Dr S did not feel comfortable in making that liaison between the case law and the statute and so concluded that on one view AK was capacitated in November 2010.  His report was extremely conscientious and thorough and he is not be criticised for having struggled in the way he did.  I shall state my conclusion about the medical evidence once having dealt with how the marriage came to take place.

E.  How the Marriage Came to Take Place.

32.	It is not disputed by the Local Authority that BK loves AK. She has demonstrated a remarkable and creditable commitment to him, visiting him more or less daily and championing her perception of his best interests.  She has given up her employment as a learning support assistant for sixth form pupils in order to be more available for him.  I accept the evidence of AK’s mother (FK) that, by very soon after his accident in November 2008, BK was referring to herself as AK’s partner, albeit that their relationship had ended in August 2008 and that he was incapable of resurrecting it because he was extremely ill.  In about December 2008, without informing DK or FK, BK took it upon herself to consult personal injury solicitors with a view to commencing legal proceedings against the bus company whose driver had caused AK’s injuries.  By February 2009 BK had bought AK a ring, which I am satisfied on the evidence she must have been placing on his finger at the start of her visits and removing at the end, since the first time it came to the notice of DK and FK was when one of the nurses took them to one side and told them about it.  By about February 2009 it is BK’s case that AK had again proposed marriage to her.  She has support for this from her daughter GH, which suggests that some conversation(s) about the subject of marriage had taken place between BK and AK, although I am not of the view that a proposal of marriage would have been independently generated then within the mind of AK.  His considerable compliance and suggestibility suggests that it is much more likely to have emerged from some conversation or conversations between them in which he was going along with suggestions and possibilities raised by BK.

33.	Moving on into 2010, it is BK’s case that further references to marriage and to getting away from the placement were made in conversations which she had with AK and that these continued to be his wishes.  BK accepts that at all material times she was aware of Mr Q’s opinion given in May 2010 that AK lacked the capacity to marry and also that this was universally accepted at the best interests meeting on 18th July 2010, which she attended.  At that meeting it had been suggested that AK should have an independent advocate.  BK says that her efforts to get the Local Authority to arrange this got nowhere and so she made her own enquiries.  She was referred to the Representational Advocacy Unit of the local Citizens Advice Bureau, through which she came to know Mr. R.  He has been an advocate for mentally incapacitated individuals for about 16 years and is a former Assistant Director of a Social Services Department.  At the time in question he had not had any training on the Mental Capacity Act 2005.  He told me that the question of possible marriage did not arise until one of the meetings which he had with AK in or about September 2010, only about two months before the wedding.  I cannot accept that recollection, because disclosure of his file reveals a very early note to him from his manager dated 19th August 2010, saying: “...personal injuries – suggest you contact Registrar of Births, Marriages and Deaths and ask if they would accept notice of this couple’s intention to marry.”  So marriage was on the agenda from the very beginning of Mr. R’s involvement, whatever his (Mr R’s) recollection.

34.	Mr. R’s firm opinion is that AK had capacity to enter into a marriage in November 2010. For that reason it is important to consider whether and to what extent he was able to obtain a fair and objective view about the case.  At a very early stage the local Headway            co-ordinator emailed him on 23rd August 2010 explaining that he (the co-ordinator) had been supporting BK for nearly two years and had become exasperated with what he saw as the lack of support which she had received from the Local Authority.  He said he was pleased that Mr. R was willing ‘to advocate on behalf of her [BK] and AK’.  On 27th August 2010 BK emailed Mr. R asserting that DK had not been to see AK for six weeks, commenting ‘caring brother!!’.  She described DK as ‘the one who fires the bullets’.  On 2nd September 2010 BK emailed Mr. R to ‘share a letter which AK wrote [to his mother, FK] and signed last night’.  She then set out the letter in full. It started: “Dear Mam...” and continued “...if it is possible I want to be living with BK who is the biggest love of my life...”.  BK accepts that she kept back this letter, and a second one in similar terms, and did not pass them on to FK, as AK had expected her to do.  BK’s email to Mr. R continued by saying that she and AK had had a ‘heart to heart’ and had decided that, if his situation had not been moved forward by the end of 2010 and if he was to remain as he was, then they would be ‘saying their goodbyes’.  The Official Solicitor submits that this would have been likely, whether intentionally or not, to have put AK under a sense of pressure to go along with BK’s stated wishes and plans; which submission I accept.  On 4th September 2010 BK emailed Mr. R to tell him: “...a few things which may prove useful/or not for you.”  These included that FK was: “...the matriarch of the household, ruthless, cold and uncaring.”  BK said that she (BK) would not trust Ann J (the manager of the placement) as AK was ‘easy cash flow’ for the placement.  She described the then social worker as ‘infamous’ and told Mr. R that she (the social worker) had lied to her.  She said that one day she would challenge the then social worker for ‘all the blunders she has made’.  

35.	On 8th September 2010 BK wrote to a Principal Registrar in the relevant county town expressing the wish of AK and herself to marry and disclosing that AK had suffered a brain injury. She referred to the fact that AK had been assessed as lacking capacity to decide about residence.  She did not however disclose that he had also been assessed to lack capacity to enter into a marriage (i.e. by Mr Q in May 2010).  On 15th September 2010 BK emailed Mr. R to aAK him to accompany herself and AK to the register office when AK would be asked questions, adding that it would be ‘too risky’ for the Registrar to go to the placement to see AK there.  She explained in cross-examination that ‘too risky’ meant because the marriage plans would get out. She said (in this email) that a Registrar of Marriages, to whom she had spoken over the telephone, had told her that the Registrar taking the notice of attestation would want to see the report from the brain injury specialist (although this never happened in fact, as Mrs E did not ask to see such report and BK did not volunteer it).  BK told Mr. R that it was a question of ‘not raising alarm bells’ when she took AK out to give the notice of attestation of the marriage.

36.	On 20th September 2010 BK filled out and sent to the Registrar a provisional booking form for the wedding.  She put down her own address as the ‘care of’ address for AK, seemingly to avoid any correspondence going to him at the placement.

37.	On 26th October 2010, as I have said, BK misled AK’s mother to obtain permission to take AK out of the placement and she took him to the local register office.  There they met up with Mr. R.  They were seen by Mrs E who took their respective notices of intention to marry.  Although the official handbook for Registrars states in terms that attestation meetings should be conducted with the proposed spouses separately, both Mrs E and Mr. L (Superintendent Registrar for the County) told me that this was not and is not the practice in the county concerned (although ‘prompting’ is not allowed).  So Mrs E saw both AK and BK together, with Mr. R in attendance as AK’s advocate.  Asked in evidence why she thought Mr. R was present, she said she thought he was just helping with manoeuvring AK’s wheelchair.  The attestation of notice process consists of the couple answering six simple factual questions.  The main purpose is for the Registrar to ensure that there are no impediments to the marriage: that is, as regards (i) age; (ii) gender; (iii) consanguinity; or (iv) existing marriage, or civil partnership.  Mrs E said in evidence that AK answered these questions well, although slowly.  However, when she asked AK his address he gave his mother’s address in Y Village.  Mrs E at first wrote that address down on the notice of marriage form.  She then noticed it did not correspond with AK’s stated address (BK’s address) put by BK on the booking form.  So she struck it through and asked AK again to give his address.  He either said words to the effect that he was ‘in care’ or else mentioned the name of the placement, but without giving its full address (Mrs E was not sure which).  At this, Mr. R went and got his file of papers from his car and provided Mrs E with AK’s full address.  Mrs E therefore wrote it on the form in place of AK’s mother’s address, which she had crossed out.  She said that it was when she saw Mr. R’s file that she realised for the first time that AK had brain damage.  She told me that before the meeting she had read BK’s above letter to the registration service of 8th September 2010 (which expressly mentions brain damage) but it seems that she had not remembered it.  She wrote on the back of one of the records of the marriage: “Case notes seen.  AK had head injury in 2008, understands exactly what he was doing.”  BK relies on this as showing that Mrs E was satisfied about AK’s capacity in the light of the full facts.  In the event, the notice of marriage was duly accepted by Mrs E and notice of the marriage posted for the necessary 15 days so that it could go ahead.

38.	The original date set for the wedding was 12th November 2010 and emails show that BK had planned to tell staff at the placement that she would be taking AK out for a birthday tea (it was in fact her birthday); whereas in fact the arrangements were now in place for the marriage.  In an email exchange between BK and Mr. R about this, they both put the expression ‘birthday tea’ into single inverted commas, as I have done.  In fact, as it turned out, AK’s bladder-stretch operation came to be scheduled for 12th November 2010 and so the wedding was put off for a week until 17th.  On 13th November 2010, the day after the operation, BK emailed Mr. R to confirm that the operation had been successful.  She explained that AK had signed his own consent form for the anaesthetist and his discharge letter, adding: “...more ammo for us.”  

39.	As I have said, on 17th November 2010 (the day of the wedding) BK misled FK to obtain FK’s permission to take AK out from the placement.  She also misled staff at the placement who, like FK, understood that she was taking him to a local Headway event.  When BK and AK arrived at the register office they were seen by Assistant Registrar Miss SJ, who was unaware that AK had sustained brain damage.  She checked all the necessary information and found that it tallied with the attestation notice; so she was satisfied that all was in order for the marriage.  When Mrs E came into the room she asked AK ‘...if he knew what was going on?’  He replied ‘yes, I am getting married’.  Asked by DK in cross-examination why she had asked AK that question, Mrs E denied that it was because she thought there was anything wrong and said that she had ‘just wanted to be sure he knew what he was doing’.  So the marriage went ahead.  It was witnessed by BK’s friend Mrs J and by someone from Headway.  One or two others were present.  Mrs E told me it was a very happy day.  AK and BK appeared to be a loving couple, as is borne out by photographs which I have seen.  There were smiles all round, including from AK who said: “I’ve waited for her for a long time.”  Mrs E told me it was ‘a lovely, lovely occasion’.  As I have said, AK’s family were unaware of it taking place.

40.	On 18th November 2010, the day after the wedding, BK emailed Mr. R to say: “All done.” and he emailed back his congratulations.  She replied making the point that the staff at the placement had thought she was taking AK to a Headway afternoon. She spoke of AK’s mother not being well: “...so need to tread carefully with her – the brother? Different ballgame.”  Mr. R replied that it was now: “...to the next chapter.”  He asked: “...how are you fixed to lay out the stage of setting your husband free?”  To which BK emailed him back: “...that is exactly what I need/want to do, free him”.  On 15th December 2010 BK emailed Mr. R to speak of getting DK displaced as AK’s litigation friend in the ongoing QB proceedings against the bus company, and ‘the sooner the better’.  

41.	On 24th December 2010 Mr. R emailed BK: “...you’re legally married and that’s that.  The SSD can have as many safeguarding meetings as they like, it’s you that cares for AK and not them.”  The next day, 25.12.10, BK replied: “...I want my husband home – end of.  The longer he’s in there the longer he is at risk – from his family and some staff”.  She said: “...DK is a bully but I will see my day with him”.  A few days later she emailed Mr. R again to say that she was writing to make various complaints, including a lengthy letter to a local paper.  She said that there had been ‘no further threatening phone calls from SS or the rest of the shits’.  On 1st January 2011 she emailed Mr. R saying that she wanted AK out of there [the placement] as soon as possible and wanted rid of the social services.  She described herself as: “Mrs K – the nicer of the two!” (comparing herself to AK’s mother).  On 6th January 2011 BK emailed Mr. R saying: “...I discussed coming home with AK last night, he was fine about it all and ready to leave Alcatraz”.  It is a fair inference to draw that it would have been a significant feat for BK to have been able to talk with AK in neutral terms about the relative merits of (i) the placement and (ii) her own home.  She went on in her email to Mr. R to speak about redirecting AK’s mail from the placement to her own house and about changing AK’s doctor; also about getting herself made appointee for his benefits.

42.	On 14th January 2011, just under two months after the wedding, SW visited AK as his new social worker.  When she asked him where he lived, he was unable to tell her.  When she asked him if he liked living there (at the placement) he told her that he did and that the people were very nice.  When she asked him who the most important person was to him, he said his son W.  He went on to say that he was: “...going to get married in a few weeks time over the borders to [he gave BK’s first name], my girlfriend”.  Asked again by SW where he lived, AK said: “Apple in the Woods” and he repeated that he was very happy living there.  On 18th January 2011 when SW asked AK again where he lived, he gave his mother’s address.  He spoke of visiting the gym daily and going out shooting with a 12 bore, neither of which is remotely possible for him.

43.	On 25th January 2011 BK wrote to the social services to say that she intended to take AK home for a short break.  Confirming this on 27th January 2011 she wrote to SW expressing her ongoing concern about visits to AK from DK and FK, saying that they always upset him.  On 1st February 2011 BK wrote to the Local Authority to say that she had been married to AK on 17th November 2010 and that he ‘...would be returning to the community and they would be living together’.  She noted that DK was currently AK’s appointee and said she wished to be made appointee instead, so as to be able to carry out her duties as his wife and primary carer.  On 4th February 2011, as above, BK took AK out from the placement and declined to return him.  I have explained that after that weekend the Local Authority went to the Court of Protection and obtained an order requiring him to be returned.

44.	On 11th February 2011, Occupational Therapist JM interviewed AK.  She told him throughout the discussion why the conversation was taking place, namely that she wanted to get a clearer understanding of where he would like to live and what supports he would require.  JM says that at no point was AK able to repeat any of the discussed information back to her and that he had no recollection of having stayed at BK’s property for several nights a few days previously.  He did not demonstrate the ability to retain even statements which he had made himself during the discussion.  On 16th February 2011 Mr. R emailed to BK a short statement by himself which he had prepared, headed up with the Court of Protection number, explaining that AK wanted to live with BK and that the Local Authority may have been inclined more to the views of FK and DK. The version of this letter, which Mr. R sent to BK, is likely to have been in draft because he asked her: “Attached any good?” He denied in evidence that he was sending it to BK for her approval; but I cannot accept that, as its import is clear.

F.  Conclusion.

45.	It gives me no pleasure to say that BK has come over during this hearing as something of a sorry figure, rather tearful and desperately anxious that her marriage to AK should not be impugned.  I do understand that and am not unsympathetic to it.  Seen in the round, however, including the material which emerged at the last minute from Mr. R’s file, the evidence shows that she allowed her strong love and sympathy for AK to get the better of what I imagine is her usually more balanced response to things.  It is clear from all the above that she rather imposed on AK’s family early on after his accident, sowing the seeds in their mind that she was behaving in a controlling way.  When she got in touch with    Mr. R in August 2010, she did not give him a neutral or fair overview of the situation; but fed him a partial view about AK’s family implying (even saying) that they were difficult and did not care about AK.  That is not how they have come across at this hearing and I find it most unlikely to have been the case.  She denigrated to Mr. R the then social worker.  She misled Mrs E by omission about AK’s capacity to enter a marriage; and she twice misled FK and staff at the placement about taking AK out of the placement in connection with the wedding.  She kept back two letters prior to the wedding which AK wrote to his mother, FK, seemingly because they would have alerted AK’s family to his stated feelings for her (BK) so giving them the chance to notify the registration service about the depth of AK’s latent impediments.  She agreed in cross-examination that AK would have wanted those letters to go to FK and I cannot accept her evidence that she kept them back from FK to protect him.  BK was the only person who knew about both (a) the intended wedding and (b) Mr Q’s report that AK lacked capacity to marry; but she did not disclose the fact of the impending wedding to those who knew of AK’s lack of capacity to marry, nor the fact of his incapacity to marry to those who knew of the impending wedding.  She has not been an accurate reporter, in that her oral evidence was that her relationship with AK’s family had been poor prior to the wedding, whereas in one of her written statements she says in terms that it was “generally good.”  I am persuaded, contrary to BK’s own perception, that her strong feelings and sympathy for AK, coupled with AK’s compliance and suggestibility, would have made it likely that he would have gone along with plans and ideas about which she was enthusiastic.  I am confident that she would not have been giving him information neutrally, as is regarded as necessary by Dr S.

46.	The fact that the surgeon and anaesthetist took AK’s consent for his bladder-stretch operation a week before the wedding is not persuasive, since the test would have been a different one.  BK herself described the surgical procedure concerned as very straightforward and it is not difficult to see how AK’s deceptive ability to converse convincingly would have satisfied the clinicians and nurses that he was able to give informed consents.

47.	As for AK’s letters (relied upon by BK) which state his affection for her and which cover various other things implying a greater capacity than the experts consider he has, those letters were written by AK in BK’s presence.  He would very probably have reacted to her suggestions and / or have responded to the cues given by her, whether consciously or unconsciously.  The letters are not, in my view, such as seriously to put in doubt the opinions of the experts from whom I have heard.

48.	The fact that an experienced Registrar, Mrs E, conducted the marriage ceremony (as also relied on by BK) is of no significance in the light of the medical evidence and of the full facts now available to the court.  Mrs E must or should have been aware from BK’s letter of 8th September 2010 that AK had brain damage.  It emerged at the notice-attestation meeting on 26th October 2010 that he could not give his address fully; added to which it turned out that his address was a neurodisability unit; nor was the address supplied to Mrs E by Mr. R from his file in accordance with the ‘care of’ address (BK’s own address) which BK had previously sent in.  With hindsight Mrs E should have queried why AK needed an advocate.  She should have seen the parties separately, not together, as that provides an opportunity for a registrar to realise that an individual has memory or comprehension problems which may be masked in the presence of the individual’s partner.  Even though Mrs E was not properly informed of the full facts by BK, alarm bells should have been ringing.  I suspect they were in fact ringing, although Mrs E denied it, as it is difficult to see why else she asked AK just before the ceremony ‘whether he knew what he was doing’.  The fact that Mrs E accepted his answer (‘getting married’) is not, however, surprising, since I do not doubt that on the day and in the actual presence of BK, AK would have been happily convincing that he was fully aware of what was going on.

49.	As for Mr. R, I recognise (a) that he was acting as an advocate whose role was to see that AK’s voice was heard and (b) that it was not his role to assess or promote AK’s best interests.  This is itself a factor which may unconsciously have affected Mr. R’s mindset and approach.  The evidence off his file shows that he became over-involved with BK’s cause, accepting what she said largely at face value.  There is a distinct ‘them and us’ quality about their exchanges and Mr. R’s firm loyalty to BK during cross-examination by Mr. O’Brien was plain to see. It is a reasonable inference that, in ascertaining AK’s wishes and feelings, Mr. R would have been fairly uncritical in his mindset, largely accepting things said to him by AK which corresponded to things told him by BK.  He chose not to look at the medical report, or reports, which BK told him she had.  He was conditioned by BK to approach the case with a mindset that the Local Authority were being unreasonable and that AK’s family were uncaring about AK.  When accepting AK’s saying he wished to live with BK, Mr. R never asked if he would like to live with his mother.  He kept not a single note or record of his conversations with AK.  This makes it impossible to assess those conversations, or the extent to which his reports in the witness box of things said to him by AK were (or were not) accurately and reliably interpreted and remembered.  Although he spoke of the need for ‘open questions’, he actually gave examples of his having asked AK quite leading questions, e.g. his asking AK whether he (AK) had spoken to BK about their (AK and Mr. R’s) previous conversation about marriage; and his asking AK, on the subject of keeping the marriage secret, ‘whether he, AK, meant secret from his (AK’s) family?’  In a case involving an individual with such severe brain damage as AK, the nuances of question and answer are crucial to determining afterwards whether the questioner inadvertently encouraged particular answers, thereby feeding the questioner’s expectations of what the other person wanted to put across.  In the result, I am not satisfied that I can attach any significant weight to Mr. R’s evidence that AK was expressing an independent wish of his own to get married, nor a real and independent wish that his (AK’s) family should not be told of it.  There are many times in the papers when the first people AK has mentioned have been his family and when he has not remembered BK at all without considerable prompting.  When interviewed by Miss C on 4th October 2011, AK specifically said that he wanted his mother and brother at his wedding (which he believed at that time still to be in the future) and FK told me that she had been to his previous two weddings.  AK also told Miss C that he likes his mother visiting him the most.  AK is trusting, compliant and suggestible. I find it to be significantly unlikely that, free of conscious or unconscious influence from BK, he would have said he wanted his family to be kept in ignorance of his wedding.  Indeed, since AK functions largely in the ‘here and now’ (with his wishes and feelings variable according to the circumstances and the manner in which he is asked questions and by whom) it is, I suspect, difficult ever to be truly confident as to his wishes and feelings.  

50.	As to the evidence of Mrs J, I do not doubt her bona fides in giving the court her opinion that AK knew what he was doing on 17th November 2010, nor that he wanted to marry BK on that day and was happy to have done so.  However, such is his deceptive social veneer and his ability to cope with straightforward conversations, including through very convincing confabulation (spontaneous narrative reports of events that never happened, involving the creation of false memories, perceptions or beliefs) that it is unsurprising that Mrs J and GH would have been unaware of the depth of his cognitive impairment.  They did not know of the opinion of Mr Q that AK lacked capacity to enter into marriage.  I entirely accept Mrs J’s evidence, and that of Mrs E, that the wedding day was a very happy one and that to their perception of the occasion AK knew what he was doing; but I cannot accept that he did know so, save on the most superficial level.  It is not just the words of the ceremony which have to be understood. 

51.	As regards the expert evidence, Dr S’s original opinion that on the case law AK had capacity to enter marriage in November 2010 was reviewed by him in his oral evidence, once he understood more about the correlation of the case law and the statute.  His above-mentioned estimation of 30% amounts to an opinion that on the balance of probabilities AK did not have capacity to enter marriage in November 2010.  This is broadly supported by Dr R, Mr Q and Dr T, even if they may in modest respects have unwittingly taken into account some factors which may not tally completely with the Sheffield approach (something for which they are not to be criticised).  On the totality of the medical evidence and considering it alongside the factual evidence, as already discussed, I am completely satisfied that on 17th November 2010 AK did not have capacity freely to decide to enter into a marriage.  Even if, and accepting, that he understood on an intellectual level the concept of a marriage and the status of being husband and wife (which is in any event doubtful) he was, in my judgment, disabled from adequately using or weighing that information (a) by the fact that the choice would not have been put to him neutrally and (b) by his inability, as shown by subsequent interviews (his condition having remained much the same throughout) to know or remember, except for extremely short periods of time, his own marital status and/or the identity of his spouse.  The reference to the retention of information for ‘a short period’ in S3(3) of the Act cannot seriously be interpreted to mean, in the context of the lifetime commitment of marriage, for so short a period as AK is able to recall whether he is married at all, or reliably (when he does remember) to whom.  That evidence from interviews with AK to which I have just referred, admittedly relates to after the marriage; but it is clearly also a reliable indicator of AK’s ability to retain information before it.  Further, as Miss Butler-Cole submits, AK’s thinking was distorted by false beliefs about marriage (for example about his getting ‘holiday pay’ and being ‘able to control’ his money) such that any weighing up by him of his wishes about marriage is likely to have been on false premises.

52.	For all these reasons, I have concluded without doubt that the Local Authority has made out its case and rebutted the presumption of capacity.  In so doing I accept the closing written submissions of Miss Butler-Cole dated 18th November 2012 (leaving aside the references to the impact of marriage on finances and property and on existing family relationships) and of Mr. O’Brien dated 21st November 2012.  I shall, therefore, declare that on 17th November 2010 AK lacked the capacity to enter into a marriage.  The Official Solicitor needs time to reflect on this decision and to consider AK’s best interests, as he is bound to do by S1(5) of the Act.  There will then be a further hearing before me as to how next to proceed.

G.  The Registrar’s Handbook.

53.	This case has thrown up the role of Registrars and of the registration service when a borderline-incapacitated individual presents wanting to marry.  It is not a Registrar’s job to assess mental capacity and plainly he or she would be wholly unqualified to do so.  If there is doubt in the Registrar’s mind when an individual responds to the standard questions put at the notice-attestation meeting, then the procedure is for the doubt to be referred upwards, first to the local Superintendent Registrar and thereafter, if necessary, to the Office of the Registrar General.  In a really tricky case, this could end up with a decision to call for a psychiatric report into capacity.  That said, the standard handbook provided to Registrars presently says nothing about the need for mental capacity to contract a marriage and does not mention the Mental Capacity Act 2005.  It may be that those responsible for the handbook would wish to consider the advisability of incorporating a paragraph on this, perhaps referring to the basic S3 requirements and summarising the information necessary to be understood and weighed up, with a note on what to do where an individual’s mental capacity to marry may be in real doubt.  The experience of this case also suggests that greater emphasis should be laid on the need for the aspiring spouses to be seen separately, not together as happened here.

   _____________

Re AK 

JUDGE'S SCHEDULE OF Dr S'S & CHARLOTTE KOSTER'S [OFFICIAL SOLICITOR'S REPRESENTATIVES'] INTERVIEWS WITH AK

[Note: This is a digest of the various interviews touching on the issue of marriage.  The originals cover more ground.]

1.	Charlotte Koster's first attendance on AK on 11.3.11 (4mths after the marriage) at the Neurodisability Unit [C164 to 167].

C: "Who visits you?"
AK: "BK, my girlfriend.  But I think that is by the way now.  Me and her stopped for some reason, whether it's something I said, or her, I don't know".  [C164]
C: "Are you married?"
AK: "No I was married".
C: "Do you have a son or daughter?"
AK: (enthusiastic tone) "Son, W".
C: "How old is W?"
AK: "He is eight." [W was 11½ in March 2011].
C: "What is W's mother's name?"
AK: "AS" [correct answer]
C: "Do you like to watch or take part (in sports)?"
AK: "I like to take part.  I like to go running".
C: [C167] "Are you expecting any visitors today?"
AK: "BK is due today."
C: "Is she your girlfriend?"
AK: "Yes, but I've not seen her in a while".  [AK sees BK almost daily].
C: "Would you like to see BK?"
AK: "I would like to see BK, but that's gone by the way.  I would like to see W more.  I would like to see him more but he can't come unless she brings him up.  He's too little, too small".  [AK's son, W, was 11½ in March 2011].
C: "When you said "she brings him", who is "she"?"
AK: "BK, she is his mum.  ... BK is with W at the swing down the road.  BK will always be with W". [BK is not W's mother and she does not look after him].

2.	Dr S's first interview with AK, 19.6.11 (7mths after marriage) at the Neurodisability Unit, 90 minutes with a break [E49 to E61].

Dr S: "Who is BK?"
AK: "She is my ex girlfriend really ... I'm now married to her I wasn't at the time W was born".
Dr S: "How long have you been married?"
AK: "Beginning of this month went up to Scotland and got married up there".
Dr S: "How is married life suiting you?"
AK: "Suits me fine.  I actually work up here.  Work on the roads ... laying curbs at the moment and the red tile brick". [B49] [AK is quite unable to work].
Dr S: "What do you like about living here [the Neurodisability Unit]?"
AK: "Sport and exercise - at the moment we are playing football - have to hop over the ball with leg that's lacking.  ... my favourite when I first came was the javelin, but they kept getting pinched by the lads outside".  [AK is wheel-chair bound].
Dr S says at E50: ‘When I asked AK to clarify who he wanted to spend his nights with, he said his friends; he did not mention BK.'
Asked by Dr S when he wanted to live with BK, AK said he would like to do so "As soon as possible but obviously got to get other things sorted - got to get W out of school yet - he's in one of these type of places - put in one of these homes.  He's in a type of home for young children, he's only eight."  [W was then 11 and was living with his mother, not in a home].
Dr S: "When was the last time you drove?"
AK: "Last September [which would be 2010] I think".
Dr S: "Do you think your accident has left you with any difficulties driving?"
AK: "No, o no".  [E52].
Dr S: "Do you take any medicines?" 
AK: "No ...[Then]: I take tablets all the time ... when I was working up the farm last year, I was trying to shear the wool of the sheep and one of the clamps came off and hit me on the back of the head".
Dr S: "How far can you walk?"
AK: "About 4 or 5 miles easy ... I'm usually alright once I'm up in the fields".
Dr S: "How has your memory been?"
AK: "That's been alright".
Dr S: "Any problem remembering things way back in your past?"
AK: "No I don't think so".
Dr S: "Any problems remembering what you did yesterday?"
AK: "I was up in the fields, looking for sewage, looking for dogs".
Dr S: "Who are you married to?"
AK: "BK".
Dr S: "How old is she?"
AK: "21 I reckon".  [BK was then 53] [E54]
Dr S: "Do you think here is the best place to live, or with BK?"
AK: "With BK, I honestly do.  I could get up, ready, bathed when ever I wanted to, not rushed about to try to get ready".
Dr S: "Any other advantages in being married to BK?"
AK: "We could have children when ever we wanted to as long as have a few quid put by.  We love each other".
Dr S: "Do you and BK have a sexual relationship?"
AK: "Aye".
[AK then answered correctly a number of Dr S's questions surrounding sexual relations: E55/E56].
Dr S: "Have you been married before?"
AK: "Married A [correct name given] - that was in S, 1987.  Married a couple of years.  [AK was married to A for 5 years, from marriage in 1978 to separation in 1983].  She said I was playing around but I wasn't.  Divorced last year [actually 1983].  After that married a lass called L, 1997.  [AK's two former wives were A and AS].  Married a short time ... divorced her this year.  After L I didn't marry anyone else, though I married A [correct name given] again I think".
Dr S: "Anyone else you married?"
AK: "No, you got Lilly down, yes?"
Dr S: "Do you have any children?"
AK: "No".  [AK has a son, W]
Dr S: "Not with any of your marriages?"
AK: "No".
Dr S: "But you told me about W.  Who is he?"
AK: "My son now".
Dr S: "How old is he?"
AK: "11 and one month old [roughly correct].  Lives in Y [village] with his mother".
Dr S: "So how many times have you been married?"
AK: "In total about eight times".  [3 times].
Dr S: "What is the nature of your relationship with BK?"
AK: "We were having sex.  That's all the relationship was".
Dr S: "Are you a partner, married, living together, or just friends with BK?"
AK: "A partner, we're living together, more than a partner".
Dr S: "Are you married to BK?"
AK: "No I divorced BK because I was going to marry T".  [E57]
Dr S [at E59]: "Can I ask, are you married?" 
AK: "I've been married".
Dr S: "Are you married at the moment or are you single?"
AK: "I think I'm single but I was married to a lass called BK".
Dr S: "How long where you married for?"
AK: "Four or five months".
Dr S: "And are you divorced now?"
AK: "As far as I know, aye".
Dr S: "When was the last time you saw BK?"
AK: "Maybe 6 or 7 months ago [BK visits AK more or less daily] in the X Night Club in Z [town]".
Dr S: "Have you seen her since then?"
AK: "No.  Just in passing.  She's been on one side of the road and I've been on the other".
Dr S: "Would you like BK to visit you here, or not?"
AK: "If she's up to it aye.  If she can get herself here without putting herself out".
Dr S: "And why would you want her to visit?"
AK: "To talk about things, things had not time to think about in the past, like why we got divorced.  I could write that down on a bit of paper".
Dr S: "Would you like anyone else to visit you?"
AK: "Our DK [brother] could come in if he can".
Dr S: "When was the last time you saw him?"
AK: "About 4 months ago in my place in Y [village]".
Dr S: "You have not seen him [DK] since?"
AK: "No".
Dr S: "Do you get people visiting you here?"
AK: "Not very often no".
Dr S: "Who would you like to visit you?"
AK: "My parents visit me as much as they can.  BK doesn't visit us much".
Dr S: "Are both your parents alive?"
AK: "Yes".  [AK's father died in 1984].  [E60].
[AK Then answered correctly various questions surrounding sexual relations].

3.	Dr S's second interview with AK at the Neurodisability Unit on 22.6.11 (3 days after Dr S's previous i/v) [E75 to E80].

Dr S says "... I asked AK whether he remembered me.  He said he had seen my face before, but could not remember where, but thought it around six months ago.  He did not appear surprised or disturbed when I said it was only four days ago."
Dr S says he asked AK how many times he had been married?
AK: "3 times at least, to be honest".
Dr S: "Are you married or single at the moment?"
AK: "Hard to say, but single at the moment.  I was married to L, she lived at (names a street)".  [AK has had three marriages: A: AS: and BK].
Dr S: "Who else have you married in the past?"
AK: "L was the last.  Before L was P, but I can't remember her surname."
Dr S: "Is there anybody else you have been married to?"
AK: "No you got them all there".
Dr S asked AK at E75 to explain his relationship with BK: 
AK: "She is an ex-partner of mine from years ago.  Last saw her Sunday just gone".
Dr S asked AK what his relationship with BK was?
AK: "I haven't any, none at all.  Friends I would say.  No we're not going out".
Dr S says he informed AK that he had married BK and was still married to her and asked whether he remembered?
AK: "Yes, married her up in Scotland, the place where the little people go to, can't remember the place now, but it is where rainbows are".
Dr S says he asked whether AK was still married or divorced?  AK said that they were divorced.  AK went on to tell Dr S that the divorce took place at Z Registry Office, he thought about six months ago.  Dr S says he checked with him whether he was talking about divorce or marriage, pointing out that Registry offices usually are involved in marriages (rather than divorces).  AK insisted it was for divorce and added:
AK: "Going there this Saturday, marrying a partner of mine, BK's daughter really".
Dr S says that AK was able to tell him that the Registrar marries people and the reason why two people marry is because they love each other.  AK added:
AK: "And they want to get away from the home they are in and live together".
Dr S says he asked AK why two people would choose to marry, rather than just live together?
AK: "If you get married, you would be better off money-wise, you get your holiday pay and more money coming in".
Dr S says he asked whether there were any consequences to marrying, rather than just living together, to which AK replied that there were not.  Dr S asked him, should he marry again, who would get the compensation money that he is due for his head injury?
AK: "Yes, my partner would have to sign something to say that she would not be able to claim any of my monies".
Dr S asked AK, if he had a substantial compensational claim and then died, who would he want the house to go to?  AK said very clearly ‘to W'.  Asked why:
AK: "Because my wife would have more chances to work; W wouldn't be able to save up for money for people to do works on the house".
Dr S asked AK again whether he was married at the current time?
AK: "That's a funny question.  I am married at the moment to L, but I am and I am not.  L does not want to carry on with it, she wants a divorce, but I don't know if she is going to go through with that yet". [E77]
Dr S says that AK said he was working at the moment on the roads and was getting paid "£5.50 per hour, a day.  Also get a week bonus about £20 or £30."  [AK is quite unable to work].
Dr S asked whether he had ever married BK?
AK: "No, but she always announced that we were married".
Dr S asked AK where he was living.  AK confidently gave the full address including post code of an address which Dr S later understood was AK's mother's.
Dr S asked whether his head injury had left him with any problems?
AK: "Main problem is that it is hard to remember things.  I remember more by doing a lot of exercise by running and that sort of thing.  Health-wise I'm not sure I wouldn't like to say.  My walking is alright".  [AK can take only a few steps, with support].
Dr S [E79] asked AK again what his relationship was with BK?
AK: "I'm living with her at the moment.  We were [sic] going to marry, the back end of this month.  I love her".
Dr S asked AK what marriage meant to him?
AK: "If you marry someone, that's the end of it.  She won't go out looking for someone else".
Dr S asked AK whether there were any legal or financial consequences to getting married?
AK: "No, none".
Dr S asked AK, should he die and be married at the time, who would his estate/money go to?
AK: "Legal-wise, it would go to W.  [AK's son]  I would leave anything money-wise, it would all go to W".
Dr S says that AK knew that if people are married, they probably live together.  AK said if things did not work out in marriage, you could leave and go with someone else.  
Dr S asked AK what would make him decide to marry BK, rather than just live with her?
AK: "We love each other.  I want to marry her, but need to get things sorted out first, such as where we are going to live and how much we are going to pay for it".
When Dr S told AK that he was already married to BK, AK did not appear surprised by this and merely said:
AK: "Yes down Z [town].  February or March or April last year".
Dr S asked him what made him to decide to marry BK?
AK: "We decided just because of love.  I have no regrets of getting married".

4.	Dr S's third interview of 35 minutes at Stanhope with AK on 8.7.11 (just over two weeks after the previous interview) [E84 to E86].

AK told Dr S he was living with his mother and gave her address.  He said he wanted to live on his own, with BK looking after him.  [E84]
Asked whether he was married, AK said that he was married to AS, but when Dr S checked this with him [E85] by asking ‘are you still married to her?', he said he was married to BK.
Dr S asked AK how people marry?
AK: "You go to church and put your name into a register, telling them you want to get married, in a little bible book".  (AK told Dr S that they (seemingly BK and himself) were married last month, December, in Z [town] at the registry office.
As to why people marry: 
AK: "You have to be married to fulfil everything you want to do.  You live together.  Good sex.  You should be faithful, for as long as you can be.  Being in control of things, controlling my money".
Asked whether you could be married to more than one person at a time, AK initially said he thought you could, before changing his mind; but he was still unsure, saying ‘I don't think so'.  [E85] By this time Dr S said in his evidence that he felt AK was getting tired.  
Dr S asked AK what he thought the duties of a husband were?
AK: "Everything that does not really belong to you, things [that] are not really yours, go to the Registrar".
Dr S asked AK, when two people marry, do they share their money or is it separate?
AK: "Her's is her's and mine is mine".
Dr S says that AK believed this to be the case, even if people divorce.
Dr S asked AK why people divorce?
AK: "When enough is enough".
Dr S says AK was not aware of any consequences, financially, should he (AK) divorce.

5.	Charlotte Koster's second attendance on AK at the Neurodisability Unit on 4.10.11 (nearly a year after the marriage) [C168 to C174].

C [C169] asked how AK would spend his compensation money?
AK: "I'll buy a bungalow in Y [village].  That's where I live.  My parents are down there.  I can help them tidy the house".
C asked if both AK's parents were alive?
AK: "No father passed away last year [actually in 1984].  I have a brother DK, he is younger, 22yrs old."  [DK was 51 in November 2011.  AK gave his own date of birth correctly as 16.9.56, but giving his age as 29].
C asked if AK had children: 
AK: "A lad, he has not visited me yet.  He has visited once or twice.  He was born on 15th December 1971 [W was born in 1999] and will be 8 years old tomorrow".  [If born in 1971, W would have been 40].
C: discussing a professionals' meeting due to take place that week:
AK: "My wife might attend.  I would rather have her there, then she could write down what she thinks."  [C169]
AK stated at C170: "I might be moving on.  Mum looking after me at moment".  [Not so].
C asked AK whether he would live on his own?
AK: "No with my girlfriend, BK [he accurately stated BK's maiden name].  I like her visiting".
C asked AK whether he and BK talk about what they will do in the future?
AK: "we talk about what we are going to do with our money.  Holidays, where we will go."
C asked what else they talked about?
AK: "All sorts of things, silly things.  We are getting married one day.  Might get married on Saturday, then we are going to look for a bungalow".
C asked where AK will be married?
AK replied that he loves BK.  He said "BK [using her correct maiden name] visits now and then.  W, he visits as well ..."
C asked who AK likes visits the most?
AK: "I prefer my mum.  I would like her to visit more".
C asked whether AK would do anything that BK would ask him to do:
AK: "Usually yes".
C asked AK whether he is married at the moment [4.10.11]?
AK: "No".  
C asked AK the name of his last wife?
AK: "A" ["A" was AK's first wife].
C asking whether AK was married to BK?
AK: "No I am getting married to BK".  Asked where, AK said: "Church, a Methodist Chapel on Middle St, down there" (pointing out of the window).
C asked if AK had told anyone else he was getting married:
AK: "DK knows".  AK said he loved BK and wanted to get married: "... Today we are going to the church to talk about the ceremony.  I am going to wear my green suit.  I have got married before."
C asked AK whether he had talked about what he was going to say?
AK: "We have done.  BK has got it all written down."
C asked who would be coming to AK's wedding?
AK: "BK doesn't care who's there or not".
C asked who he himself (AK) would like to come to the wedding?
AK: "I would like DK to be there, but I don't think he can get the day off work ...."
C asked who else AK would like to attend the wedding:
AK: "Mum".  Asked whether his mum would like to attend, AK said: "I think she would actually".  [AK's mother and his brother DK were not told about the wedding to BK until afterwards].
C asked what AK and BK had talked about in planning their wedding?
AK: "BK has it all written down, what I am going to say and what I am going to say to the Bishop.  What I have to say and what I don't have to say".

6.	Charlotte Koster's third attendance of AK at the Neurodisability Unit on 11.6.12 (1yr 7mths after the wedding) [C175 to C177].

C asked AK where he lived now?
AK: "[gave accurately the address of his mother's home, including the postcode].  Asked whether he lived there with anyone else, AK said: "With mother".  [AK was in fact living at the placement].
C asked where in the future AK would like to live, (AK immediately answering):
AK: "In Y".
C: "Where in Y?"
AK: "Same place as before with my mum.  Don't know if I can or not".
C asked AK where he would ask to live if he had the last say?
AK: "I want to live in Y with my mum."
C asked whether AK had a son, AK said "Yeah, W".  Appeared more animated.
C noted that AK's mother, brother and W visit him and asked him who else visits regularly?
AK: "Loads of friends, Brian, John and ..."
C asked whether AK had a girlfriend?
AK: "Yes, L".
C asked if his girlfriend was nice?
AK: "Been nice, not nice now".  Asked how often L visited, AK stated "four times a month".
C asked whether AK knew who BK was?
AK: "My girlfriend now".
C pointed out that AK had just said that L was his girlfriend and asked whether he had two girlfriends?
AK: "No".

7.	Charlotte Koster's fourth attendance on AK on 23.10.12 [1yr 11mths after the wedding] at Hospital [C178 to C180].

C asked AK where he lived before coming to Hospital?
AK: "At home" and "Y [village]".  (There are several references to AK appearing tired).
C asked AK who visits him?
AK: "DK, my younger brother, and mum once a week".  And "Jack [incorrect name]... my son".
C asked AK ‘are you married?'
AK: "No". 
C asked AK whether he would like to be married?
AK: "Yes I would".
C asking AK who he would like to marry?
AK: "EC".
C asked AK what would be good about being married and why he would like to be married?
AK: "Help around the house" and "have sex and the like".  
C asked AK if he would be getting married in the future?
AK: "BK" [using BK's correct maiden name].
C asked AK if he would like to marry BK?
AK: "Yes ... told her ..."
C asked who is BK?
AK: "My girlfriend", and saying it would be good to marry her.
C asked AK why he would like to marry BK?
AK: "Live with me".
C asking AK his date of birth?
AK: "16.9.59".  [correct date 16.9.56]  Asked how old he was, he said 42.  Asked for his address, AK gave his mother's address.
C asked AK if he had been married before?
AK: "Yes".
C asked AK who he had married?
AK: "A and AS ...".
C asked AK whether he was married now?
AK: "Not married".
C asked AK if he would like to be married?
AK: "Yeah".