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“Capacity to marry”

Sandwell MBC and RG, GG and SK and SKG 2013 and whether an arranged marriage where the individual had no capacity should endure or be dismantled

http://www.bailii.org/ew/cases/EWHC/COP/2013/2373.html

This was a Court of Protection case, heard before Mr Justice Holman. It involved two adult males, both of whom had significant capacity issues.

After considerable investigation and careful consideration by the local authority, the Official Solicitor and experts variously instructed by them, it is now common ground: first, that GG and RG each lack the capacity to make a range of decisions as to where they reside, their care packages, their contact with others, and certain other matters; and, second, that it is in their respective best interest that there be a range of declarations and other orders in terms which have been carefully drafted, and with one exception, are agreed.

 

The ‘one exception’ is of course, the majority of the litigation. In 2009, RG’s family arranged a marriage for him, to a woman named SK, and that marriage took place in India.

SK then came to the UK. It was her evidence, accepted by the Court, that it was only subsequent to the wedding ceremony that  she learned that RG had profound difficulties. Nonetheless, the marriage was consummated.

Mrs SK bears no personal responsibility at all for the events which happened. There is no question whatsoever of her having personally exploited the mental disability of RG. She was an obedient daughter, in a Sikh family, who compliantly participated in the arrangements that her family made for her marriage. Having married him, she now feels committed to him, and, indeed, says that she does now love him. She says that it would be impossible in her culture and religion for her ever to marry anyone else, and that if she were divorced, or her marriage was annulled, she would be ostracised in her community.

  1. The issues that now remain in relation to RG relate to the status and continuation of that marriage. It is accepted by Mrs SK that she cannot provide to RG the support and daily care and assistance that he needs, and always will need, and she no longer resists that he remains living in the accommodation provided and staffed by the local authority. She implores me, however, not to facilitate or permit steps to be taken to annul their marriage.
  1. At the outset of the hearing Mrs SK was also still asking to be permitted to have some sexual relationship with her husband, the more so as it would be culturally impossible, now, for her to do so with any other man. The evidence of Dr Xenitidis was, however, crystal clear that RG has no understanding at all what sex is, and, accordingly, that he lacks any capacity to choose whether to agree to sexual touching. As Xenitidis put it: “He does not even understand what sex is. Whether it is voluntary, or not, is a kind of luxury for him.”

That would place SK in difficulties with the criminal law, and specifically section 30 of the Sexual Offences Act 2003, in that making love with her husband could potentially land her in prison, the maximum sentence being life.

Section 27(1)(b) of the Mental Capacity Act 2005 expressly provides that nothing in that Act permits a decision to be made on behalf of a person consenting to have sexual relations. Accordingly, if, as is clear, RG himself lacks any capacity to consent to sexual relations, the court cannot provide any consent on his behalf, even if (I stress if) that might enable him to gain some physical pleasure from some sexual activity.

 For these reasons the order will include a declaration that RG lacks capacity to consent to sexual relations. It will be the duty of the local authority, as his carers, to take all reasonable steps to prevent him from being the victim of a criminal act, and the regular contact between Mrs SK and RG will have to be supervised to the extent necessary to ensure that there is no sexual touching between them. Mrs SK now accepts a condition of contact that she does not communicate to RG that she would like to have sexual relations with him, or go to the bedroom with him.

Turning to the marriage, the Court unsurprisingly found in the light of the expert evidence on RG’s capacity that he had no understanding whatsoever of what a marriage was, that he had not had capacity to enter into the marriage contract.

The argument then, and it becomes an interesting one, is what should happen with the marriage. Underlining mine

  1. There remains, therefore, the question of whether I should declare that it is in the best interests of RG that the Official Solicitor should present a petition for a decree of nullity on his behalf, there being no doubt that RG personally lacks any capacity to make a decision whether to do so.
  1. The Court of Protection cannot itself annul a marriage. So in relation to a petition for nullity all I can do in the present proceedings is authorise, and, if necessary and appropriate, direct that the Official Solicitor presents and pursues one. For that purpose, the actual decision where RG was domiciled on the date of the marriage, would fall to be made, not by me in these proceedings, but by the matrimonial court, once seised with a petition for nullity.

It might well have been an interesting position for the Official Solicitor (who were, on RG’s behalf opposed to petitioning for nullity) if the Court had declared that it was in RG’s best interests for them to do so. Clearly they would have to have either done so, or appealed the declaration.  

The LA were very keen for the marriage to be ended, chiefly as a matter of public policy

I have been told that within the area of this particular local authority there are a number of incapacitated adults who have been the subject of arranged or forced marriages, and that it is important to send a strong signal to the Muslim and Sikh communities within their area (and, indeed, elsewhere) that arranged marriages, where one party is mentally incapacitated, simply will not be tolerated, and that the marriages will be annulled

 

 

  1. In the forefront of Miss Pratley’s submissions is policy. The position of the local authority is encapsulated in paragraphs 7 and 8 of her cogent, written, outline submissions dated 28 June 2013, where she wrote:

“7: It is plainly a relevant circumstance that RG lacked the capacity to enter into the marriage, and continues to lack that capacity. Indeed, his lack of capacity is a fact of such importance that it would be difficult to argue it is not the starting point (or, if not the starting point, a circumstance of very significant weight) in determining best interests. It is submitted on behalf of the local authority that it is an overarching and compelling consideration in the best interests analysis. Whilst it is not asserted that it could never be in a person’s best interests for the court to decide not to take steps to end their marriage in these circumstances, only in exceptional cases will such a conclusion be sustainable.

8: This is because the court would otherwise make a decision, the effect of which would be that RG remain married in circumstances where he lacked capacity to marry, on the basis of circumstances, such as RG’s wishes and feelings and the impact on RG if his marriage was brought to an end, with little or no weight given to the fact of his incapacity on the basis that he is already married. It is impossible to reconcile this with the fact that a court could never take such considerations into account in allowing RG to marry in the first place. This would undermine the legal foundation of the institution of marriage in England and Wales, where consent is a fundamental element of a legally unassailable and enduring marriage contract.”

 

 

SK pleaded vehemently that the marriage should not be annulled, that as a consequence of her religion and culture it would cause her shame and might cause her to be ostracised.

The Official Solicitor took the view that RG would not want to cause SK any harm or distress, and when the issue that SK might have to permanently leave the UK (as she would if the marriage were annulled) he reacted very badly against this, and thus it was in his best interests not to annul the marriage, notwithstanding that he had not had the capacity to enter into it.

  1. The present wishes and feelings of RG himself, so far as they can be ascertained, are quite clear. Although he has such little understanding of marriage that he lacked capacity to marry, he, nevertheless, frequently uses the words “wife”, and “marriage”, or “marry”, in relation to Mrs SK. She visits him regularly, several times a week. Although the visits are quite short, he reacts to them with pleasure and appears to gain pleasure from the visits and from the relationship.
  1. RG reacts badly to references to divorce. Mr Dipak Mohan, his key social worker, said that if RG is told that his marriage is at an end, he is likely to take it extremely badly. When his brother told him that Mrs SK might be deported, he reacted extremely badly and aggressively

The Judge determined that the Official Solicitor was correct

  1.  Unquestionably, RG cannot gain the support, pleasures and benefits of a marriage, as normally understood. He cannot gain many other of the pleasures of life that are available to persons of normal capacity. But still he gains some pleasure and some benefits from this marriage and relationship.

 

  1. Like the Official Solicitor, I am completely unpersuaded that his best interests require or justify that it is now annulled. For these reasons I will exclude from the otherwise agreed order in relation to RG those parts which provide for the Official Solicitor now to present a petition for the marriage to be annulled.

There was obviously a tension in this case between public policy (the compelling argument that marriages arranged by families overseas with the knowledge that the bride or groom lacked any capacity to enter into it should not result in the families benefiting from the marriage enduring)  and the individuals in the case, with there being good evidence that RG would have been caused distress by the annulment – since SK would have had to leave the country and little evidence of positive benefit to him. The Judge found in favour of the individual rather than public policy.

Whilst the Judge was at pains to point out at the outset that the case turned on its facts and that he was not seeking to establish any general principles, it is not difficult to see that those acting in such cases in the future would point to the issues in this case as being broadly supportive of the marriage not being annulled on the basis of public policy alone, and that there would have to be benefits to the individual concerned.

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

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