This is the Court of Protection decision in A Local Authority v SY 2013
Much of the case involved SY’s difficulties with capacity and plans for her future, which involved her living in a care home – having not consented, this was being treated as a deprivation of liberty (I add in parenthesis that I am pleased to see the Courts taking a common sense pragmatic approach on someone having to live in a home when they don’t consent as being a Deprivation of Liberty DoLS, as I think that was always the spirit of the Mental Capacity Act 2005, though we seem to have drifted from that in the short years the Act has existed)
An additional issue, however, was that SY had entered into a marriage to a man TK. I have to say, the man TK, doesn’t come out of this well (I have reordered the judgment here, simply because it scans better in this particular context)
- TK was born in Pakistan. He came to the United Kingdom on 7 September 2009 as a student. His application to continue his studies was refused and his appeal was dismissed on the basis of a tribunal finding that he had submitted two forged documents and had attempted to deceive the immigration authorities. His rights of appeal were exhausted in June 2011. It is in this context that he began a relationship with SY in August 2011.
- Following an adult case conference on 20 June 2012, SY moved to her current placement on 27 June 2012. The following day an associate of TK attended the placement and attempted to gain entry for the purpose of seeking SY’s signature on a document allegedly prepared to assist TK with his asylum claim. In light of the risks to SY of harm and exploitation, an urgent authorisation was issued and then a standard authorisation to deprive her of her liberty at the placement was granted.
- On 17 July 2012 TK’s appeal against the refusal to grant him asylum was dismissed on all grounds. His relationship with SY lay at the heart of the case he sought to mount. The tribunal judge found that “The relationship, if there is one, does not have the necessary qualities of commitment, depth and intimacy which would be necessary to demonstrate family life for the purposes of article 8…”. He later observed that “viewed objectively her best interests are likely to be served by there being no further interference by [TK] and his friends with the care arrangements which social services have put in place”. He was found not to have given a truthful account in his evidence and not to be a credible witness.
- On 23 January 2012 her then carers notified the authority that she had returned from TK’s property in a nearby city and told them that TK had locked her in his house when he went to work, she and TK had been visited by a ‘lawyer’ about a housing application, that they were to marry in six months time and that TK had taken her to a registry office to obtain a copy of her birth certificate. The carers reported they had overheard TK speaking to SY on the telephone in a controlling and aggressive manner.
- Social workers attempted to undertake a capacity assessment but SY refused to co-operate. For the same reasons a clinical psychologist, Dr. C, was unable to assess formally her capacity to litigate and/or to make decisions as to residence, contact, marriage and sexual relations but concluded it was unlikely she was able to do so.
- On 24 May 2012 the authority and the police told TK that SY had a learning disability and was unlikely to have capacity to consent to sexual relations and marriage and that an offence would be committed. Notwithstanding this advice, on 10 June 2012 TK and SY entered into a purported Islamic marriage ceremony at his home.
So, the issue in the case was whether the Court of Protection should make a declaration that this marriage was not recognised, as being one that SY had no capacity to consent to. The eagle-eyed or attentive reader may recall that there was a blog post recently about a Holman J decision, in which he held that the Court had no jurisdiction to make such a declaration – the difference HERE is that the unfortunate wife in that case COULD have made her own application for nullity but was vulnerable and unwilling, which was what caused the bar to the declaration. Here, there was no possibility that SY had the capacity to make an application in her own right, so the Court would have power to make the declaration.
(It isn’t QUITE as simple as that, because the marriage never purported to be a ceremony to which the Marriage Act applies, so the Court can’t use the powers under that Act – this was clearly an Islamic ceremony. So, to declare it a non-recognised marriage involves the use of the inherent jurisdiction, and the Court needed to walk through very carefully the existing authorities, hence the debate and determination below – underlining mine for emphasis)
Discussion – Declaration of Non-Marriage
a. it was not conducted in a registered place; and
b. it was not conducted by a registrar or by a priest according to Anglican rites.
“It is clear, however, that the present ceremony did not begin to purport to be a marriage according to the Marriage Acts, with or without fatal consequences. It was not conducted under the rites of the Church of England, nor was there ever any question of an application for, still less a grant of, a superintendent registrar’s certificate, and it was conducted in a flat which was clearly none of the places which were authorised for marriage. The ceremony was consciously an Islamic one rather than such as is contemplated by the Marriage Acts……It is not any question of polygamy which ipso facto takes this ceremony outside s. 11, but the fact that it in no sense purported to be effected accordingly to the Marriage Acts, which provide for the only way of marrying in England. …It follows that I hold that the 1980 ceremony is neither a valid marriage in English law nor one in respect of which jurisdiction exists to grant a decree of nullity”.
- In the case of Hudson v. Leigh (Status of Non-Marriage)  2 FLR 1129, a ceremony was undertaken in South Africa which the parties had deliberately modified to avoid strict compliance with local formalities. They intended a civil ceremony would be conducted some weeks later in England, but it never took place. Bodey J. held, at paragraphs 80-84,
“As to Mr Leigh’s amended petition, Mr Mostyn has abandoned the secondary prayer in it for a declaration that “…no marriage between the parties subsisted on the 23rd January 2004 or thereafter”. That had seemingly been inserted into the pleading by amendment and as an afterthought so as to try to bring Mr Leigh’s case into S55 (1) (c), as being ‘a declaration that the marriage did not subsist on a date so specified in the application’. I am clear that the making of such a declaration would have been wholly impermissible as being a device to get around S58 (5) (which outlaws any declaration that a marriage was at its inception void) and I would therefore have dismissed that prayer had it stood alone. There remains Mr Mostyn’s application for a declaration that the Cape Town ceremony did not effect a marriage at all….It goes without saying that, if appropriately worded, the mere dismissal of Miss Hudson’s petition for divorce and alternatively for nullity would inform any reasonably knowledgeable interested party that there was not a marriage between herself and Mr Leigh. There would indeed be nothing to prevent a specific recital to that effect. That would not be entirely satisfactory, however, since it would not theoretically bind third parties and problems might arise if either party wanted to marry here or abroad, or otherwise needed to demonstrate his or her status. A declaration, if permissible, would be in the public interest of creating certainty and would be beneficial and convenient for both parties. In my judgment, the making of such a declaration is not outlawed by S58 (5) if and for so long as it is made to declare that there never was a marriage, as distinct from being a declaration (which is not permitted) that a given marriage was void at its inception. When the facts dictate the latter (which, as found here, they do not) then the only route to resolution is nullity. Nor do I find persuasive Mr Le Gryce’s argument about the former practice of the ecclesiastical courts. For so long as the High Court has an inherent jurisdiction, as it does, and has the authority of the RSC to make free-standing Declarations in appropriate circumstances, then such jurisdiction needs within reason to be flexible and to move with the times. I cannot accept that it is stuck in the mid-19th century. Were it so, then countless orders must have been made (for example in the management of life-support systems) without jurisdiction. Accordingly I propose to make a Declaration that the Cape Town ceremony of 23.1.04 did not create the status of marriage as between Miss Hudson and Mr Leigh.”
- Bodey J., in a later case, considered the status of an Islamic marriage ceremony conducted in the ‘husband’s’ London flat in the presence of an imam. He held there had been a wholesale failure to comply with the formal requirements of English law and there was nothing that could be susceptible to a decree of nullity under s. 11 of the Matrimonial Causes Act 1973. He made a declaration of non-marriage: El Gamal v. Al Maktoum  2 FLR 387.
- What is then to be done? The Official Solicitor on behalf of SY could make a freestanding application pursuant to the inherent jurisdiction of the High Court to seek a declaration of non-marriage. Alternatively, the court in these proceedings could, of its own motion, invoke the inherent jurisdiction and make a declaration of non-marriage.
- In the case of XCC v. AA and Others  EWHC 2183 (COP), Parker J. was invited to make a declaration of non-recognition of a marriage within Court of Protection proceedings by invoking the inherent jurisdiction of the High Court. She said, at paragraphs 54 and 85,
“The protection or intervention of the inherent jurisdiction of the High Court is available to those lacking capacity within the meaning of the MCA 2005 as it is to capacitous but vulnerable adults who have had their will overborne, and on the same basis, where the remedy sought does not fall within the repertoire of remedies provided for in the MCA 2005. It would be unjustifiable and discriminatory not to grant the same relief to incapacitated adults who cannot consent as to capacitous adults whose will has been overborne…..I am satisfied that once a matter is before the Court of Protection, the High Court may make orders of its own motion, particularly if such orders are ancillary to, or in support of, orders made on application. Since the inherent jurisdiction of the High Court in relation to adults is an aspect of the parens patriae jurisdiction the court has particularly wide powers to act of its own motion.”
- It is plain on the facts of this case, especially taking account of the immigration judgment handed down on 17 July 2012 in respect of TK’s asylum appeal, that TK exploited and took advantage of SY for the purpose of seeking to bolster his immigration appeal and his prospects of being permitted to remain in this country. The ceremony he and SY engaged in on 10 June 2012 formed the bedrock of that objective.
- In my judgment it is important for SY that a declaration of non-marriage is made in respect of the June 2012 ceremony. There are also, in my judgment, compelling reasons of public policy why sham ‘marriages’ are declared non-marriages. It is vital that the message is clearly sent out to those who seek to exploit young and vulnerable adults that the courts will not tolerate such exploitation.
Over and above the facts of this case, and that judicial steer underlined above (which I suspect will be cited in many of these cases to come), the Court made some interesting observations about the capacity assessment.
- I am told by counsel that it is more usual for the assessment of capacity to be undertaken by a medical practitioner or a psychiatrist. The assessment in this case demonstrates that an appropriately qualified social worker is eminently suited to undertake such capacity assessments. I commend the practice which I hope will be followed in appropriate future cases.
[I am not entirely sure how I feel about that – I represent and work with social workers and believe that those who work in adult social care do have the necessary expertise and skill to conduct such assessments and that they would strive to make them fair. However, it can be the case that the Local Authority take, and sometimes have to take, a line as to what they consider to be in the best interests of the person. It may be that such a role doesn’t sit entirely comfortably with conducting an assessment to decide whether a person is capable of exercising autonomy or should have decisions about their future made by the State in their ‘best interests’. (I am not saying that there WOULD be bias or unfairness, but in law, the perception of bias can be as important as the actuality. R v Sussex Justices being the lead on this – the law must not only be fair, it must be seen to be fair)