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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> RS, Re (Forced Marriage Protection Order) [2015] EWHC 3534 (Fam) (03 December 2015) URL: https://www.bailii.org/ew/cases/EWHC/Fam/2015/3534.html Cite as: [2015] EWHC 3534 (Fam), [2017] 4 WLR 61, [2016] 1 FCR 461, [2017] 1 FLR 141, [2016] Fam Law 276 |
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FAMILY DIVISION
IN THE MATTER OF AN APPLICATION
UNDER THE FORCED MARRIAGE PROTECTION
ORDER 2007 (PART IV FAMILY LAW ACT 1996)
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
LUTON BOROUGH COUNCIL |
Applicant |
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- and - |
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SB |
1st Respondent |
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- and - |
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RS (by his litigation friend the Official Solicitor) |
2nd Respondent |
____________________
Ms. C. Renton (instructed by Cameron Clarke Lawyers Ltd) for the 1st Respondent
Mr. A. Bagchi
QC (instructed by the Official Solicitor ) for the 2nd Respondent
Hearing dates: 26th, 27th & 28th October 2015
____________________
Crown Copyright ©
Mr Justice Hayden :
a) litigate in these proceedings;
b) consent to marriage;
c) consent to sexual relations;
I also provided that Dr. Carpenter should identify any recommendation in respect of steps which might be taken to assist RS to maximise his understanding of sexual relations in the event that he proved to be lacking capacity to consent.
i) RS had mental capacity to marry at the date of his marriage to W; and if not;
ii) whether the court should exercise its power under the inherent jurisdiction to declare that the marriage is not recognised as valid in England and Wales as a precursor to the initiation of formal proceedings to annul the marriage.
Does RS lack capacity to:
i) Consent to marry?
ii) Consent to sexual relations?
iii) If RS lacks capacity to marry and/or consent to sexual relations are there further steps which can and should be taken to help RS understand the relevant information (e.g. sex education)?
iv) If such steps should be undertaken does this alter whether or not the court should exercise its discretion to declare the marriage non-recognised at English law?
v) If the court decides that RS lacked the capacity to marry on 23 October 2014 should the court then adjourn the proceedings to enable the local authority to initiate an application under the Mental Capacity Act 2005 and to enable an assessment to be undertaken of:-
vi) his capacity to have contact with others including W;
vii) his best interests in relation to:-
a) His contact with W;
b) Whether an order should be made authorising the initiation of nullity proceedings;
c) What he should be told of the decisions of the court and how he should be given such information;
d) Whether he may travel to Pakistan or be permitted otherwise to travel out of the jurisdiction.
e) Whether an extension of the FMPO should be granted and/or an injunction should be granted to prevent another ceremony of marriage involving RS.
viii) Should the court exercise its discretion under the inherent jurisdiction to make a declaration that the marriage is not recognised at English law?
The Background
" i. In 2012 MDT found RS not to have capacity to make a decision about where to live. Grounds not given;"
ii. 2012 RS was asked not to attend Mosque due to offensive sexual language;
iii. He is fluent in English and Punjabi/Phari but his conversation is not always in context and is often repetitive. Comprehension is good if spoken to in short sentences using straight forward language about subjects he is familiar with;
iv. Toilets independently;
v. Showers self but has to be encouraged to dry his feet well (gets trench foot);
vi. Needs support to follow a Halal diet;
vii. Needs help/prompting for eating/drinking to eat more slowly; can dress and undress self independently but needs help to choose clothes for weather. Only washes his hands and face with prompting. Needs prompts to wash effectively. He is largely independent with using the toilet;
viii. He can not prepare simple snacks without support;
ix. Can read text, understands simple words and known phrases;
x. Others manage his finances;
xi. He has some theoretical understanding of hazards but does not apply it reliably e.g. Road safety."
"I would not rate this as mild but as dominating his style of interaction and understanding of others. As part of this he has a typical autistic spread of skills. He has learnt to be cooperative (to a point). He can learn simple practical skills and short sequences by rote [washing, dressing] - including I believe, writing his name. He has less ability to think about the abstract side of things such as time and numbers and future consequences. His practical and rote skills can lead one to overestimate his abstract thinking skills.
In addition due to his autism, it is difficult to converse with RS on topics that he is not interested in. He understands simple phrases which makes examination difficult when it is about abstract concepts."
Capacity to consent to sexual intercourse
"73. For the avoidance of doubt, every single issue of capacity which falls to be determined under Part 1 of the Act must be evaluated by applying section 3(1) in full and considering each of the four elements of the decision making process that are set out at (a)—(d) in that subsection. A person is unable to make a decision for himself if he is unable to undertake one or more of these four functions:"
(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, or (d) to communicate his decision (whether by talking, using sign language or any other means).
The extent to which, on the facts of any individual case, there is a need either for a sophisticated, or for a more straightforward, evaluation of any of these four elements will naturally vary from case to case and from topic to topic"
(per Sir Brian Leveson P)
"76 Baroness Hale is plainly right [2009] 1 WLR 1786, para 27, that_[one] does not consent to sex in general. One consents to this act of sex with this person at this time and in this place.__ (Emphasis added.) The focus of the criminal law, in the context of sexual offences, will always be on a particular specific past event with any issue relating to consent being evaluated in retrospect with respect to that singular event. But the fact that a person either does or does not consent to sexual activity with a particular person at a fixed point in time, or does or does not have capacity to give such consent, does not mean that it is impossible, or legally impermissible, for a court assessing capacity to make a general evaluation which is not tied down to a particular partner, time and place."
77 Going further, we accept the submission made to us to the effect that it would be totally unworkable for a local authority or the Court of Protection to conduct an assessment every time an individual over whom there was doubt about his or her capacity to consent to sexual relations showed signs of immediate interest in experiencing a sexual encounter with another person. On a pragmatic basis, if for no other reason, capacity to consent to future sexual relations can only be assessed on a general and non-specific basis."
"the intention of the Act is not to dress an incapacitous person in forensic cotton wool but to allow them as far as possible to make the same mistakes that all other human beings are at liberty to make and not infrequently do."
i) RS understands the 'mechanics' of the sexual act;
ii) RS has some understanding of the use of condoms;
iii) RS has articulated the possibility of 'infection' consequent upon sexual relations;
iv) RS has made some link between pregnancy and sexual intercourse.
"52.1 He told me one had babies from intercourse. He could not tell me how to prevent this or how babies came.
52.2. After a series of questions about risks to which he did not respond he eventually said one could get infections from intercourse. However he could not say what infections and did not appear to know what 'infections' meant. He did not know how to prevent them.
52.3. His 'don't know' might be seen as a opt out of the conversation, despite knowing the facts, but at these times he behaved as though he did not know. He seemed confused by the questions and wanted to change topic (unlike his pleasure at talking about sex).
52.4. I have to conclude that at present the balance of probabilities is that he does not know the risks of Intercourse except possibly the words baby and infection."
"I do not believe RS lacks the capacity to do anything, I believe his marriage should be given a chance and RS should be given a chance to lead a normal life as much as he can. The Authorities and the Applicant do not know RS, he's my nephew, I'm proud of him and I wouldn't change him at all, I know RS would make a good husband and I believe he should be allowed…"
These are touching and sincere emotional sentiments but they bear no relation to the reality of RS's day to day interactions. Not least, they cannot be reconciled with either Z's own evidence or that of the family more generally.
Capacity to consent to marriage
"[144] 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 of capacity to marry too high, lest it operate as an unfair, unnecessary and indeed discriminatory bar against the mentally disabled."
[145] Equally, we must be careful not to impose so stringent a test of capacity to marry that it becomes too easy to challenge the validity of what appear on the surface to be regular and seemingly valid marriages. Singleton LJ in In the Estate of Park, deceased, Park v Park [1954] P 112 at 126 quoted with apparent approval what an American judge, Caruthers J, had said a hundred years before (see Cole v Cole (1857) 5 Sneed's Tennessee Rep 56 at 58):
'every consideration of policy and humanity admonishes us that a contract so essentially connected with the peace and happiness of individuals and families, and the well-being of society, should not be annulled on this or any other ground, not clearly made out. The consequences, in many cases, would be most deplorable. The rights of property would be unsettled and the peace of families destroyed, to say nothing about the effects upon the innocent offspring. The annulment of other contracts would only affect property; but this would do that, and more - it would tell upon the happiness, character, and peace of the parties. The appalling character of these consequences is well calculated to impress the courts with the solemn duty of requiring a clear case for the application of the general principle to this delicate and important contract.'
If the language now appears somewhat extravagant, the point seems to me to remain as valid in Britain today as it was in Tennessee in 1857".
"59.1. I am not persuaded he has any significant grasp of what is a role of a husband and of a wife or the duties of either. He seemed to have no concept of being faithful and forsaking all others."
59.2. His lack of understanding could be seen as due to lack of education on these matters. However I see that his Intellectual Disability and Autism are key in him not understanding the simple generalities of the roles and to be able to talk around them.
59.3. I also have judged him not to have capacity to consent to sexual relations.
60. If he did understand these principles. I would expect him to be able to retain the information.
61. I also consider that even if he did understand the information he would have difficulty weighing the concepts and the consequences of not following them. This is due to his Intellectual Disability and Autism.
62. I therefore consider that RS does not at present have capacity to consent to Marriage.
Whilst some attempt has to be made (as above) to identify the key or indivisible aspects of a marriage, the very attempt at doing so forces the realisation, as Macur J highlighted, that 'different people' will give 'different weight' to 'different factors'. To this I would merely add the obvious… 'at different times' of their lives. People's priorities change.
Potential for achieving capacity
23. The Code of Practice issued by the Lord Chancellor and to which judges must have regard (see s. 42(5)(a) of the Act) makes it clear (at para. 4.4) that the assessment of a person's capacity must be based on their ability to make a specific decision at the time it needs to be made, and not their ability to make decisions in general: in the jargon that litters this area of the law, it is 'decision-specific' (see PC & NC v City of York Council [2013] EWCA Civ 478 at paras. 31-35).
24. Further, the identification of the "information relevant to the decision" is critical. Although 'information' is not defined by the Act, s. 3(4) provides that it includes information "about the reasonably foreseeable consequences of (a) deciding one way or another, or (b) failing to make the decision" and the Code explains (at 4.16):
"It is important not to assess someone's understanding before they have been given relevant information about a decision. Every effort must be made to provide information in a way that is most appropriate to help the person to understand. Quick or inadequate explanations are not acceptable unless the situation is urgent … Relevant information includes:
- the nature of the decision
- the reason why the decision is needed, and
- the likely effects of deciding one way or another, or making no decision at all."
"If he lived with W he could be taught how he is to behave when with her by modelling just as he knows how to behave with his sisters or other women. However this would be a demonstration of his ability to comply with learnt rules without necessarily understanding them. So for example at present he knows he should not touch women, but can touch W. But during my interview he was asking why he could not touch R.. [another female] when we saw him, suggesting he had not generalised the rule he had been given."
Declaration of non recognition
i) Conduct falling short of violence, threats or any other form of coercion, but which causes a person who lacks capacity to enter into a marriage, may constitute a criminal offence: s.121 of the Anti-social Behaviour Crime and Policing Act 2014 which provides:
"(1) A person commits an offence under the law of England and Wales if he or she –
(a) Uses violence, threats or any other form of coercion for the purpose of causing another person to enter into a marriage, and
(b) Believes, or ought reasonably to believe, that the conduct may cause the other person to enter into the marriage without free and full consent.
(2) In relation to a victim who lacks capacity to consent to marriage, the offence under subsection (1) is capable of being committed by any conduct carried out for the purpose of causing the victim to enter into a marriage (whether or not the conduct amounts to violence, threats or any other forms of coercion)".
ii) Applying the criminal test for capacity: RS lacks capacity to consent to sex with anyone, including W, and therefore on the criteria applicable in the criminal law W would be guilty of a crime under the Sexual Offences Act 2003 if the couple had sexual relations:
Section 30: Sexual activity with a person with a mental disorder impeding choice
(1) A person (A) commits an offence if--
(a) he intentionally touches another person (B),
(b) the touching is sexual,
(c) B is unable to refuse because of or for a reason related to a mental disorder, and
(d) A knows or could reasonably be expected to know that B has a mental disorder and that because of it or for a reason related to it B is likely to be unable to refuse.
(2) B is unable to refuse if--
(a) he lacks the capacity to choose whether to agree to the touching (whether because he lacks sufficient understanding of the nature or reasonably foreseeable consequences of what is being done, or for any other reason), or
(b) he is unable to communicate such a choice to A.
(3) A person guilty of an offence under this section, if the touching involved--
(a) penetration of B's anus or vagina with a part of A's body or anything else,
(b) penetration of B's mouth with A's penis,
(c) penetration of A's anus or vagina with a part of B's body, or
(d) penetration of A's mouth with B's penis, is liable, on conviction on indictment, to imprisonment for life.
(4) Unless subsection (3) applies, a person guilty of an offence under this section is liable--
(a) on summary conviction, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 14 years.
Ms. Hearnden reinforces this submission by drawing my attention to: R v Cooper 2009 UKHL 42. There the complainant had capacity to consent generally, but could not exercise that consent on a particular occasion due to her irrational fear of the Defendant. The Court concluded that a 'person specific' test was appropriate.
iii) The court cannot take a decision that it is in the best interests of a person to enter into marriage (s.27(1) MCA 2005), so conversely why then should the court be able to make a best interests decision to permit a person to remain in a marriage?
Section 27 Family relationships etc.
(1)Nothing in this Act permits a decision on any of the following matters to be made on behalf of a person—
(a)consenting to marriage or a civil partnership,
(b)consenting to have sexual relations,
(c)consenting to a decree of divorce being granted on the basis of two years' separation,
(d)consenting to a dissolution order being made in relation to a civil partnership on the basis of two years' separation,
(e)consenting to a child's being placed for adoption by an adoption agency,
(f)consenting to the making of an adoption order,
(g)discharging parental responsibilities in matters not relating to a child's property,
(h)giving a consent under the Human Fertilisation and Embryology Act 1990 (c. 37).
(i)giving a consent under the Human Fertilisation and Embryology Act 2008.]
"Whereas, RS does not like crowded places, with lots of people; in the weddings events, he was fully excited and engaged, and participated fully. He sang a love song to his wife. He danced. He felt very proud and confident, and repeatedly hugged his wife. As wedding guests gave small gifts of money to the couple, which is custom, he passed all the money to W".
"The very essence of the convention is respect for human dignity and human freedom"