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This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
||Neutral Citation Number:  EWHC 3534 (Fam)
||Case No: FD14F05039
IN THE HIGH COURT OF JUSTICE
IN THE MATTER OF AN APPLICATION
UNDER THE FORCED MARRIAGE PROTECTION
ORDER 2007 (PART IV FAMILY LAW ACT 1996)
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE HAYDEN
|| LUTON BOROUGH COUNCIL
||- and -
||- and -
||RS (by his litigation friend the Official Solicitor)
Ms. A. Hearnden (instructed by Luton Borough Council) for the Applicant
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
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mr Justice Hayden :
- I am concerned in this case with RS who is 25 years of age and who has intellectual disability and autism spectrum disorder. These challenges have led to RS having behavioural and emotional difficulties. He lives with his mother who is the first respondent in these proceedings. Also sharing the home are six of RS's seven siblings. During the course of this hearing I heard evidence from members of RS's family. It is important that I preface this judgment by signalling that it is entirely plain to me that RS is greatly loved by his family and that their actions have been motivated by a determination to ensure that he is cared for and protected throughout his life.
- The proceedings were commenced by an application on the 14th November 2014, brought by Luton Borough Council, seeking a Forced Marriage Protection Order [FMPO] under Part 4 A of the Family Law Act 1996. That application was designed to forestall an anticipated marriage. However it subsequently transpired that a marriage had taken place in Pakistan on 23rd October 2014.
- On 29th April 2015 I approved an application to reconstitute and continue the proceedings under the Inherent Jurisdiction of the High Court. Along with a range of other Case Management Orders, I granted permission for the Parties jointly to instruct Dr. Peter Carpenter, a Consultant Psychiatrist to provide a report assessing RS's capacity to:
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.
- There is now no dispute that RS lacks the capacity to litigate and, since April 2015, he has been represented by the Official Solicitor. W, the woman with whom RS went through the ceremony of marriage whilst in Pakistan has been informed about these proceedings, has filed two statements and gave evidence, with the assistance of a translator, via a telephone link from Pakistan.
- The identified questions for this hearing are whether:
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.
- Pursuant to my Order of the 29th April the Parties were able to agree a statement of issues, following an advocates meeting on the 23rd October 2015. They read as follows:
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?
- As submissions evolved the Bar has agreed that the issues at para (v) above do not require consideration at this hearing and may not ultimately require adjudication.
- It is not necessary for me to rehearse the background of RS's life extensively; I simply highlight a number of incidents which help to provide some context to the issues in the case generally. In 2007 when RS was 18 years old, his mother (M) informed the Social Services Department that her son was displaying what is described as inappropriate sexual and aggressive behaviour. There is a record that M speculated at that time that marriage might assist her son. The Local Authority record that M was advised against marriage by the Specialist Medical Services. At that stage RS's behaviour caused concern both for his own safety and that of any potential spouse.
- In 2008 RS was placed in a residential unit in Stoke-on-Trent. All agree that this arrangement came about because his behaviour at home had become unmanageable. In her evidence to me M spoke of this period with evident distress. She told me that this had been a difficult time for her personally, that she had felt very guilty about these arrangements and the fact that neither she nor any other members of the family had been able to visit RS regularly in the four years that he remained a resident at the unit. She told me that in the summer of 2012, as I understand her evidence, RS returned for a home visit with a damaged and swollen hand, which injury he had sustained when lashing out at a door. The hand, M told me, looked very painful and RS said that he had behaved in that way out of frustration for being locked up for too long. M also considered that the drugs regime at the unit had made her son 'like a Zombie', as she put it, 'for long periods of time'.
- I emphasise that I relate M's account without any intention of endorsing it as accurate. It is not necessary for me to do so. Its significance to this forensic exercise is that it represents M's account of the past, which I am convinced she believes to be truthful.
- In July 2012 M drove to the unit and removed RS. From that period he has lived with M and siblings. Although RS has been seen periodically by Dr. Iqbal (Consultant Psychiatrist) there appears to be no further incident of sexually inappropriate behaviour since returning home. However, I note that Dr. Iqbal records, in December 2013, that RS 'makes socially unacceptable comments and also displays embarrassing behaviour such as crying and speaking loudly'. M reported that RS was very attentive to his personal hygiene; likes things to be in order and has a very good memory. However, he had difficulty sleeping and tended to stay awake until the middle of the night. In December 2013 M said that she found him difficult to manage at weekends and in the evenings because he tended to be very loud and needed constant attention and supervision. She told me during the week RS has support from care assistants. He tended to repeat questions but, conversely, did not like to be asked questions himself or to take any requests from M.
- Dr. Shastri, Associate Specialist Psychiatrist, prescribed Risperidone to decrease agitation and sleep disturbance. I should also add that the medical records reveal RS to have gained a significant amount of weight. At this time he weighed 129Kg with a BMI 36.5. M told me in evidence that she has successfully weaned her son off his medication, albeit without medical advice. In the last two years M reports RS as having settled and matured. M denies that RS exhibits any sexually inappropriate behaviour and describes him as gentle and kind. The social worker is sceptical as to the accuracy of this information and suggests that there have been some signs that RS continues to display worrying traits, such as touching the head and face of females he does not know well.
- In evidence I also heard from RS's sister (SB) and his uncle (Z). They both were at pains to emphasise how they considered that RS had developed into a delightful, gentle and essentially placid man. They considered that it was family members who were best able to evaluate the strengths and potential of RS. Doctors and Social Workers, who saw RS infrequently or for narrow periods of assessment, they felt simply did not have the real opportunity fully to appreciate the depth and strength of RS's personality. I find that, at times, this family may have consciously exaggerated the extent of RS's real potential but for the most part I think they genuinely focus on RS's strengths rather than dwelling on his disadvantages. M told me that quite recently RS had managed to purchase a bag of lentils from the local corner shop entirely without assistance. She told me that she had given him the exact money and a nearly empty bag of lentils to take with him to assist him in this exchange. Her pride in her son's accomplishment was both obvious and genuine, it was also difficult to reconcile with the more competent picture of her son she was seeking to put before the court. M believed, she told me, that RS could maintain and support his wife.
- I think it likely that there is some core basis for the family's belief that RS is calmer than in his late teens and early twenties. In March 2014 a FACE profile was undertaken. This is an assessment tool to evaluate the level of support required to promote independence. Again I propose to record features of it which help to give context to the central issues:
" 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."
- Dr. Carpenter prepared two reports for these proceedings dated 26th June 2015 and 24th September 2015, the latter in response to questions asked by the parties. In addition Dr. Iqbal has provided three short reports in October 2014. There is agreement on the central issues between the doctors but, as it is Dr. Carpenter who has been instructed as an expert in this case and he who has extensively reviewed the background history, it is his conclusions I evaluate. He considers that RS 'undoubtedly has intellectual disability'. Drawing on the practical skills described by M, which I have already intimated may sometimes overstate her son's potential, Dr. Carpenter considers RS to be operating practically [my emphasis] at the level of a 5-8 year old, indicating 'moderate learning disability'. This, considers Dr. Carpenter, is verified by the FACE assessment I have summarised above. There is no formal IQ assessment, it is thought likely that this would prove to be too difficult to undertake because it would require a level of concentration that RS would struggle with. In relation to RS's autism Dr. Carpenter concludes:
"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."
- Dr Carpenter in response to questions from Ms. Renton, acting on behalf of M, emphasised that RS exhibited his difficulty in comprehending abstract concepts by withdrawing from the questioning. In a somewhat circular way, this is also part of the autistic nature of his interaction and understanding others. Accordingly, said Dr Carpenter, not only does RS struggle to absorb abstract concepts but he does not have an effective way to signal his difficulty or distress.
- Addressing the first issue in this litigation, namely whether RS has the capacity to consent to sexual intercourse, Dr Carpenter concluded that he did not. He considered that due to the combination of autism and intellectual disability RS could not weigh the risks or consequences of infection nor could he absorb the concept of pregnancy, birth and sexual intercourse as intrinsically connected events. Consistently with this, whilst RS understood how to use a condom, he could not connect that with the prevention of pregnancy. Indeed, as I understood Dr. Carpenter's evidence, the purpose of contraception was simply too complex for RS to grasp. On each aspect of the recognised markers of understanding sexual intercourse RS displayed some knowledge. He identified infection as a risk of sex, he understood that babies resulted from sexual intercourse and he understood the mechanics of the sexual act. I am told that the marriage has been consummated.
- RS has not received any sexual education. He has however received some information about sex via the friendship and support of a caring uncle (Z) from the north of England. Z told me, with great candour, that he and RS had discussed women and sex together when RS had spent some time with him in his shop. RS demonstrated to Z that he knew how to use a condom by applying it to a banana. The two men, Z told me, had watched pornography together. Z considered that RS had the capacity to consent to sexual relations, though I consider that he wished to conceal some of his nephew's limitations. In what I suspect was an unguarded moment, he told me that RS had sex once. When I pressed him on this because, on M's case, sexual intercourse had taken place on a number of occasions, he said that he had intended to refer to the honeymoon generally rather than a single occasion. Perhaps because his evidence was otherwise so frank and clear this confusion struck me as unlikely. I strongly suspect that intercourse has indeed only taken place on the one occasion. That said, I make no determination on the point.
- What did strike me from Z's evidence was the manner in which he described RS's behaviour: identifying his practical skills and his ability to rote learn individual tasks. Z volunteered in evidence, by way of example, how RS had managed to learn to sweep the floor effectively at his barber's shop (by repeat example), having struggled initially. This simple illustration, like so many others given by M, exactly reinforces the assessment of Dr. Carpenter. Thus my conclusions in relation to RS's style of interaction and understanding of others rests not only on the expert evidence but on the broader canvass of the evidence as a whole.
Capacity to consent to sexual intercourse
- The legal test relating to capacity to engage in sexual relations has now been resolved by the Court of Appeal in: Re M (An Adult) (Capacity:Consent to Sexual Relations)  Fam 61. The Court is obliged to apply the test at S3 (1) of The Mental Capacity Act (MCA) :
"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)
- Unlike the situation in the criminal law, to which I will return later, the correct approach to considering capacity to consent to sexual relations is 'issue specific' rather than 'person specific':
"76 Baroness Hale is plainly right  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 information typically had regard to by capacitous adults as relevant to the decision to consent to sexual relations is relatively limited. See: An NHS Trust v P  EWHC 50 (Fam) at para 10, per Hedley J:
"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."
- Again what is striking about the oral evidence is the extent to which, when properly analysed, the family and Dr. Carpenter agree. Thus the following represent common ground between them :
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.
- On the basis of these, it is correct to say therefore, that RS has demonstrated some knowledge of the factors that point towards his having capacity to consent to sexual relations. However, whilst the family identify individual aspects of RS's knowledge rather than a coherent overall understanding, Dr. Carpenter considers that the combination of autism and intellectual disability prevents RS from making the crucial link between actions and consequences thus establishing a unifying analysis for his overall behaviour. In his report Dr. Carpenter observes:
"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 thought that it was telling that Z told me how RS struggled to understand that he (Z) had been married three times whilst he (RS) had no wife at all. Z also told me that RS knew about infection, though was never able to make the connection between sex and disease. In short, as the family talked about RS on a practical level their accounts again resonated very closely with Dr. Carpenter's assessment. Dr. Carpenter concluded, on the balance of probabilities that RS did not know the risk of intercourse except possibly the words 'baby' and 'infection'. Neither did Dr. Carpenter consider that RS understood the concept of fidelity, an assessment which, in my judgement, was not made in response to one short question but on the broader basis of his assessment as a whole. Predicating his analysis on the relationship between RS's moderate learning disability and autism, Dr. Carpenter concluded that RS does not have capacity to consent to sexual intercourse and given, on the chronology of the case, that RS was more likely to have gained rather than lost capacity during the course of the previous 12 months, he would therefore not have had capacity for intercourse in October/ November 2014 (i.e. at the time of the marriage in Pakistan). I accept Dr. Carpenter's conclusion not least because, as I have emphasised, it fits closely with key aspects of the family's own evidence.
- The family take a very different position, succinctly articulated by Z who draws the following conclusion in his statement dated 14th June 2015:
"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
- All counsel agree that the clearest guidance in evaluating capacity to marry is to be found in the decision of Munby J (as he then was) in Re E (An alleged patient): Sheffield City Council v E  1 FLR 965. Again, the question of capacity is 'issue' not 'person' specific (see para 141 (1)). Importantly, it is not enough that an individual appreciates that he or she is taking part in a marriage ceremony or understands its words. He or she must understand both the nature of the marriage contract and the duties and responsibilities which normally attach to marriage (see para 141 vi and vii). In the light of what I have discussed above it is, in my judgement, very clear that RS has no significant grasp of the role of husband and wife or the duties of either. Whatever the differing cultural considerations to be taken into account here, it seems to me that mutuality, reciprocity and the capacity for compromise are indivisible components of marriage. The test of understanding seems to me to be succinctly identified by Munby J in Re E (supra):
" 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."
 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  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".
- I have also found it helpful to consider Baker J's convenient and thorough review of both the case law and the general principles to be applied in assessing this issue in CC v KK and STCC  EWHC 2136 (COP). I would emphasise, as does he, the clear observations of Macur J (as she then was) in LBL v RYG  EWHC 2664 (Fam) (at para 24), that 'it is not necessary for the person to comprehend every detail of the issue… it is not always necessary for a person to comprehend all peripheral detail…it is recognised that different individuals may give different weight to different factors'. Later at para 58 Macur J crystallised the question as being whether the person under review was able to 'comprehend and weigh the salient details relevant to the decision to be made'.
- Dr. Carpenter concluded as follows:
"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.
- All this illustrates that marriage is anything but a 'concrete' concept. Mutuality and reciprocity may be indivisible components but they are subtle, complex and not easily reducible to easy definition. Therein lies the difficulty for RS. His particular combination of disabilities leading to what is described as his 'concrete perspective' on life renders him unable to grasp, either emotionally or intellectually, these kinds of responsibilities. Neither can RS truly comprehend the continuous nature of the marriage contract itself. I have, of course, already found that RS lacks capacity to consent to sexual relations, itself a fundamental requisite of marriage: see X City Council v MB, NB & MAB  EWHC 168 (Fam). Accordingly, I have little difficulty, in the circumstances, in concluding that RS lacks the capacity to marry.
Potential for achieving capacity
- Having reached these conclusions I am required to consider whether RS could gain capacity in both the areas that I have judged him to lack it. Ms. Renton, who acts on behalf of M places particular emphasis on : IM v LM & Others  EWCA Civ 37:
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  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
Sadly, I am drawn back to RS's core functioning difficulties and the combination of intellectual disability and autism which prevent him from weighing and evaluating essentially abstract concepts. This feature of his functioning really, to my mind, as Dr. Carpenter concludes, precludes RS from 'understanding' rather than 'reciting' concepts. Dr. Carpenter's report is a thorough analysis of the key issues I am being asked to determine. I was impressed with his evidence which revealed a real willingness to engage in the various hypotheses advanced by Ms. Renton. His evidence was entirely without dogmatism. Moreover, I do not consider that Dr. Carpenter was motivated by a 'protection imperative' which may influence the thinking of professionals involved in assessing the vulnerable. The phrase, used by Ryder J in Oldham MBC v GW and PW  EWHC 136 (Fam) ;  2 FLR 597, denotes an essentially paternalistic instinct to protect children or the vulnerable which may overwhelm the primary objective of the Mental Capacity Act 2005 i.e. to promote equality for the incapacitous and protect their autonomy.
- the likely effects of deciding one way or another, or making no decision at all."
Dr. Carpenter was particularly troubled by RS's inability to grasp the concept of fidelity. Ms. Renton suggested that his conclusions on this point could not be substantiated on such limited exploration of the issue in the assessment process. I disagree both with her submission and its underlying premise. Dr. Carpenter's conclusion is not predicated, on one exchange, as Ms. Renton advances, rather it is a facet of the underlying difficulties RS faces which I have already set out extensively. It finds expression in other areas of the assessment. Thus Dr. Carpenter notes:
"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."
Again, as Dr. Carpenter emphasised, when RS withdraws from a line of questioning or responds 'don't know' it is not because he is opting out of the question but because the issues are simply beyond his comprehension.
I regret to say I am driven to conclude that there is no real prospect of RS either gaining the capacity to consent to marriage or sexual relations. Dr. Carpenter further considers that sex education work with RS would be potentially unhelpful to him in that, as I understand it, it might further sexualise him. Dr. Carpenter did not hear the evidence which succeeded his own, to the effect that RS sometimes watched pornography. I doubt very much whether that would have surprised Dr. Carpenter or made any difference to his conclusions but on this point (i.e. potential for sex education work) and for the future I would not regard the point as settled. It may have to be reviewed in due course. That said, and I emphasise, it is unlikely to have any bearing on capacity.
Declaration of non recognition
Mr Bagchi QC, acting on behalf of the Official Solicitor, submitted that the issue to be addressed is one of recognition of the Pakistani marriage rather than assessment of its validity. The other advocates agreed, as do I.
Section 58 (5) of the Family Law Act 1996 specifically prohibits the Court from making a declaration to the effect that a marriage was void 'at the time of its inception'. It is also quite clear that the 'forced marriage' amendments to the Family Law Act 1996 (in part 4A) do not confer any new power to terminate a marriage extraneous to the framework of the Matrimonial Causes Act 1973.
Though Ms. Renton had initially constructed an ingenious argument contending that an English Court might not have jurisdiction to entertain a petition for annulment, on the basis that RS's 'domicile', had become Pakistan (consequent on a combination of his incapacity and the 'domicile' of his deceased father) this was abandoned.
Ms. Hearnden, on behalf of the Local Authority, identifies what she describes as 'clear public policy grounds for seeking a declaration' that the marriage should not be recognised. Her submissions are succinct and attractively presented. Whilst she concedes that this Court has discretion whether to make a declaration of non recognition of a foreign marriage, she submits that the public policy priority weighs so heavily that it overwhelms the balancing exercise. If the Court declares that RS lacks capacity to marry it follows axiomatically, Ms Hearnden argues, that the marriage could not lawfully have been conducted in England and Wales. The fact the marriage is formally valid in Pakistan, an unchallenged fact in this case, should not encourage an English Court to recognise a marriage which offends a key contractual component, namely consent.
This proposition gains support, it is submitted, in the context of a wider legislative framework emphasising the importance of consent:
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).
In summary, Ms. Hearnden contends that there are sound reasons why marital unions in which one party lacks the capacity to consent should be deterred. Many such marriages will be abusive and exploitative. Even should I find this not to be the case here, Ms. Hearnden submits 'there is no utility to RS maintaining the pretence of a marriage in which he can not lawfully have a sexual relationship with his wife'. It is certainly difficult to see how it could be respectful to the dignity of either of the parties to this union to blight their relationship with the permanent threat of a criminal prosecution. I am, of course, only concerned with RS. The arrangement however, I agree is a precarious foundation for family life as well as demeaning to the parties. Of course, whether such a relationship lacking, as I have found it to, mutuality, reciprocity and a proper consensual contractual basis, falls within even the wide embrace of the concept of family life in Article 8, ECHR may very well be moot. This of course is an entirely different proposition to the principle that persons with disabilities have a right to family life and may be able to care for children. That said, I also agree with Mostyn J in D. Borough Council v B  EWHC 101 (Fam) that the restriction of sexual relationship engages a very profound aspect of an individual's civil liberties and personal autonomy.
(i)giving a consent under the Human Fertilisation and Embryology Act 2008.]
Ms. Renton has focused her arguments and cross examination primarily on the question of capacity. However, as a secondary position, she submits that if I were to find RS lacks capacity on the issues in focus, I should nonetheless exercise my discretion against any declaration of non recognition.
Having heard all the evidence in this case I am convinced that the objective of this marriage was to provide RS with care and security for the remainder of his life. M, in particular, had been shocked and disturbed by her son's isolation and unhappiness in the residential unit. She found it difficult to manage her distress as she told me about this period in her son's life. As the records at the time reveal, even then, M contemplated marriage as a solution for her son's predicament. I think that she considered the options for her son's future and found them, by the standards of her hopes and expectations as a mother, to be bleak.
The arrangements for this marriage were likely to have been sometime in the planning. I have seen the wedding photographs, bound in red leather with gold lettering. The occasion was extravagant, the costumes striking. There was much gold in evidence. Z told me it was 'all very bling' and had cost the family something in the region of £25,000. It is clear that no expense was spared on the bride either, her costumes were lavish and impressive. A wedding on this scale, I was told, signalled status and position. RS's family are well regarded in Kashmir. Mr K, a close family friend for some fifteen years here in the UK, was able to attend the wedding ceremony, the various pre wedding ceremonies and the post wedding reception. He told me that W and RS were positive and happy and that W was sensitive and thoughtful to her husband. RS, he told me, selected his own colourful clothes.
Mr K told me that at the wedding the Imam enquired of RS 'a number of times if he was agreeable to get married'. He said the Imam also asked RS 'do you know why you are here? To which he reports 'RS confirmed that he was here to marry'. The Imam then asked whether RS was happy 'to get married with W'. The response was 'yes'. The Nikkah, the formal ceremony took place at the home of W's father. This ceremony was only for the immediate family and took place in a specific room with around 7 to 10 people present. Later that day there were 100 guests at the home and the following week a further party in which 500 guests attended. The family have all confirmed this account.
In his statement dated 23rd October 2015 (the first day of the hearing) Mr K stated as follows:
In her evidence to me W was respectful to the family, to her husband and to the Court. I formed the impression that she had made a utilitarian calculation of her own interests in this marriage. From a purely western perspective that might appear to be a critical observation. I do not intend it to be regarded as such. W has different cultural expectations; social priorities which are influenced by her upbringing in Kashmir and by her own understandings of the responsibilities and obligations expected of women in her society. She was articulate in her assertion that she had entered this marriage of her own free will. Despite the highly personal nature of the inevitable and proper questions she confirmed with some robustness, that the marriage had been consummated. She also told me that at the time of her menstruation her new husband had shown sensitivity and forbearance. In short, I have absolutely no sense that she had entered this marriage under duress or in consequence of any abusive pressure. On her part I am entirely satisfied that she gave free consent.
"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".
In the light of theses circumstances I have considered carefully whether I should exercise my discretion to grant the declaration sought by the Local Authority. In Pretty v United Kingdom (2002) 35 EHRR 1 the European Court of Human Rights emphasised (at para 65) that:
"The very essence of the convention is respect for human dignity and human freedom"
In Niemietz v Germany (1993) 16 EHRR 97 at para 29 the Court stressed the importance of "the right to establish and develop relationships with other human beings".
These two important early cases in the Strasbourg jurisprudence foreshadowed the evolution of a body of case law which has consistently emphasised the importance of autonomy; development of psychological and moral integrity and relationships with other human beings as key aspects of individual human rights. Ultimately however, I have come to the conclusion that capacity, at least in the circumstances here, is an intrinsic, indivisible facet of both psychological and moral integrity. The absence of RS's capacity to consent either to sexual relations or to marriage ultimately compromises the ability of this couple to forge the mutual and reciprocal commitment which, in my judgement, is an essential component of a marriage, perhaps even universally so.
Finally, Ms. Hearnden makes the important point that RS is subject to the legal obligations of marriage which he is unlikely to understand or be able to fulfil. W will have rights to any property RS may inherit or otherwise acquire. If there are children RS will automatically have 'parental responsibility', the obligations of which he is unlikely to be able to discharge. As Ms. Hearnden puts it in her closing submission 'for as long as the marriage remains untouched, he is exposed to legal obligations and consequences which he does not understand and has not voluntarily assumed'.
In most cases an overseas marriage, entered into by an individual who lacks capacity to consent to either sexual relations or marriage, is likely to require the Court to make a declaration of non recognition. (There will be more direct remedies in the case of a marriage contracted in the UK). However, it overstates the position to regard the discretionary exercise here as essentially 'illusory'. Whilst I am not prepared to predict the circumstances in which the discretion might be exercised, neither am I prepared to say that a Court is never likely to do so. The interests of justice, fairness and respect for different aspects of individual autonomy may, in certain circumstances prevail. That said, those circumstances are likely to arise very rarely indeed. They have not done so here.
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