“[21] possession of capacity is quite distinct from the exercise of it by giving or withholding consent. In the criminal cases [capacity] arises most commonly in respect of a single incident and a particular person where the need to distinguish between capacity and consent may have no significance on the facts. … there is no absolute distinction between capacity in civil and capacity in criminal law, it is merely that they fall to be considered in different contexts, and, often perhaps, for different purposes. [23] In my view it should suffice if a person understands that sexual relations may lead to significant ill-health and that those risks can be reduced by precautions like a condom. I do not think more can be required. [25] In my judgment one can do no more than this: does the person whose capacity is in question understand that they do have a choice and that they can refuse? That seems to me an important aspect of capacity and is as far as it is really possible to go over and above an understanding of the physical component. [26] … I would be disposed to view that in terms of whether any specific consent was (or in these circumstances) could be given. … The focus of the criminal law must inevitably be both act and person and situation sensitive … this Court, however, has to be effective to work on a wider canvas. It is in those circumstances that I find myself closer to the views expressed by Munby J. (as he then was) and Mostyn J. [31] .. H lacks capacity to consent on two specific bases: first that she does not understand the health consequences of sexual relations…; and secondly that she cannot deploy the information effectively into the decision making process.”
“To ascertain the nature of the contract of marriage a man must be mentally capable of appreciating that it involves the responsibilities normally attaching to marriage. Without any degree of mentality it cannot be said that he understands the nature of the contract”
“(1) The court may make declarations as to – (a) whether a person has or lacks capacity to make a decision specified in the declaration; (b) whether a person lacks capacity to make decisions on such matters as are prescribed in the declaration; (c) the lawfulness or otherwise of any act done, or yet to be done, in relation to that person.” (a) whether a person has or lacks capacity to make a decision specified in the declaration; (b) whether a person lacks capacity to make decisions on such matters as are prescribed in the declaration; (c) the lawfulness or otherwise of any act done, or yet to be done, in relation to that person.”
“The court may make binding declarations whether or not any other remedy is claimed.”
“The power to make declarations is a discretionary power….When considering whether to grant a declaration or not, the court should take into account justice to the claimant, justice to the defendant, whether the declaration would serve a useful purpose, and whether there are any other special reasons why or why not the court should grant the declaration.”
“A judge in the Court of Protection – may feel drawn towards an outcome that is more protective of the adult and thus, in certain circumstances, fail to carry out an assessment of capacity that is detached and objective. On the other hand, the court must be equally careful not to be influenced by sympathy for a person's wholly understandable wish to return home.”
"As the court has had previous occasion to remark, the concept of "private life" is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person. It can sometimes embrace aspects of an individual's physical and social identity. Elements such as, for example, gender identification, name and sexual orientation and sexual life fall within the personal sphere protected by Article 8. Article 8 also protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world. Though no previous case has established as such any right to self-determination as being contained inArticle 8 of the Convention , the court considers that the notion of personal autonomy is an important principle underlying the interpretation of its guarantees."
“(a) the degree of P's incapacity, for the nearer to the borderline the more weight must in principle be attached to P's wishes and feelings: I do not consider that because PM ‘only’ fails to understand one of the criteria this places her close to the borderline. She fails to understand, and may never understand, an essential component of sexual relations. Even without pregnancy, disease or illness is very important. (b) the strength and consistency of the views being expressed by P: I recognise that PM has been forceful and consistent, but I am entitled to take into account (as perhaps not in the assessment of capacity to consent to marriage or to sexual relations) that she does not fully appreciate important issues in these proceedings. i) the fact that immigration is an issue, ii) the reality of MZ’s attitude to PM arising from the observations of the foster carer and social worker, iii) that so far as MZ is concerned he does not love her and never has done so (his oral evidence), that (perhaps) he regards himself as having been duped, and that he is only staying with her, according to him, out of a sense of duty. Although Miss Bazley submitted that he respects her, I detected no respect either. iv) all the relevant circumstances. In this context the relevant circumstances will include, though I emphasise that they are by no means limited to, such matters as: (c) the possible impact on P of knowledge that her wishes and feelings are not being given effect to. I accept that this may cause her bewilderment and distress. She will be unable to understand why that is: but that arises from her incapacity. The precise extent to which P truly understands the meaning and importance of what she says, and how much it is a learned or perhaps even coached response, is unclear. But there is a solid body of evidence that she has no or very little understanding of much of what she says at all. d) the extent to which P's wishes and feelings are, or are not, rational, sensible, responsible and pragmaticallycapable of sensible implementation in the particular circumstances.”
“In my view a marriage with an incapacitated person who is unable to consent is a forced marriage within the meaning of theForced Marriage Act 2007 .”
“[185] In this case the family does not perceive DD to have been “forced” because there was no threat or physical or emotional coercion. In this context it must be made clear that “Forced Marriage” is defined by theForced Marriage (Civil Protection) Act 2007 as occurring “if another person (“B”) forces A to enter into a marriage (whether with B or another person) without A's free and full consent”; and by section 1 (6) “force” includes “coercion by threats or other psychological means”.” “[186] “Force” in the context of a person who lacks capacity must include inducing or arranging for a person who lacks capacity to undergo a ceremony of marriage, even if no compulsion or coercion is required as it would be with a person with capacity.”
“The right to choose: multi-agency statutory guidance for dealing with forced marriage.”
“This case has thrown up the role of Registrars and of the registration service when a borderline-incapacitated individual presents wanting to marry. It is not a Registrar’s job to assess mental capacity and plainly he or she would be wholly unqualified to do so. If there is doubt in the Registrar’s mind when an individual responds to the standard questions put at the notice-attestation meeting, then the procedure is for the doubt to be referred upwards, first to the local Superintendent Registrar and thereafter, if necessary, to the Office of the Registrar General. In a really tricky case, this could end up with a decision to call for a psychiatric report into capacity. That said, the standard handbook provided to Registrars presently says nothing about the need for mental capacity to contract a marriage and does not mention theMental Capacity Act 2005 . It may be that those responsible for the handbook would wish to consider the advisability of incorporating a paragraph on this, perhaps referring to the basic S3 requirements and summarising the information necessary to be understood and weighed up, with a note on what to do where an individual’s mental capacity to marry may be in real doubt. The experience of this case also suggests that greater emphasis should be laid on the need for the aspiring spouses to be seen separately, not together as happened here”