W, Re: Capacity to Engage in Sexual Relations & Marry [2025] EWCOP 32 (T2)

[2025] EWCOP 32 (T2)

COURT OF PROTECTION

Date 26/08/2025

SITTING AT BRIGHTON

Before

HHJ FARQUHAR

Between

EAST SUSSEX COUNTY COUNCILApplicant

WRespondent

Ms Amelia Walker (instructed by East Sussex County Council) for Applicant

Ms Sophy Miles (instructed by Edwards Duthie Shamash) for Respondent

Hearing Hearing dates: 15 and 16 May 2025

JUDGMENT

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 W and members of their family must be strictly preserved. All persons, including representatives of the media and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.

HHJ Farquhar :

[1]This is an application relating to W who is a 32 year old woman with a learning disability and a childhood diagnosis of autism (which is no longer established). The issue before the court is whether W has the capacity to engage in sexual relations and to enter into a marriage or civil partnership. The issue of whether W had capacity to make decisions about contact with others was also originally to be determined by this Court, but the parties are now in agreement that she lacks such capacity.

[2]The position of the parties is that W, through the Official Solicitor who acts as her litigation friend submits that W does have the capacity to engage in sexual relations and enter a marriage or civil partnership. The Local Authority, East Sussex County Council submits that this is not the case.

[3]In considering this matter I have been assisted by the very helpful position statements provided by Ms Walker on behalf of the Local Authority and Ms Miles on behalf of the Official Solicitor. I have read all of the relevant documents within the bundle and have heard direct oral evidence from Ms Birley, the social worker, and Dr Camden – Smith, Consultant in Learning Disability Psychiatry. I have also had sight of the 15 authorities referred to by the parties.

[4]Factual Background

[5]W was born in June 1992 and is now aged 32. As a young child she was diagnosed with learning difficulties, and it was considered that she may also have an autistic spectrum disorder. W attended a school for children with special educational needs and went to a college for students with learning difficulties. W lived with her mother up until June 2018. As is set out within the judgment of HHJ Thorp dated September 2016, W met X, a Pakistan national who had permission to stay in the UK on a student visa. They commenced a relationship, including a sexual relationship and married in a ceremony in November 2014, although this was not notified to W’s family until January 2015. This was found to be a Forced Marriage which was subsequently annulled, and W was the victim of abuse including rape.

[6]Orders were made by HHJ Thorp that W lacked the capacity to engage in sexual relations and also to marry and orders were subsequently made in relation to that marriage. X was subsequently deported from the UK. I note from HHJ Thorp’s judgment that there was discussion about the possibility of adjourning the proceedings at that stage to allow work in relation to the issue of capacity to engage in sexual relations to be carried out with W. It was decided that was not appropriate at that stage.

[7]On 4 February 2020 the local authority made a referral to the Learning Disability Service within Sussex Partnership Foundation Trust to request specialist support to help W understand the Court’s decision in respect of her capacity to consent to sexual relations, and to improve her understanding of sexual relationships. W commenced sessions with Teresea Bate, Learning Disability Nurse on 14 June 2021.

[8]W now lives in supported accommodation having moved there in June 2018. This consists of a self-contained flat within the grounds of the house owned by the provider Y, who is clearly a great support for W. W is provided with 18 hours of support per week through her accommodation as well as three hours per week from a personal assistant. The care and support plan which is dated 15 July 2024 includes the following measures to provide W with safety in the community and her interactions with others: i) W has agreed to notify Y by text to let her know who she is visiting and needs to let Y know if she will be staying overnight; ii) The “Find my Friends” App has been activated on W’s phone with her consent meaning that Y can see her location; iii) Anyone needs first to be introduced to Y, which enables Y to monitor who is accessing the household.

[9]In terms of her daily living W currently works two days a week at McDonalds which she clearly enjoys and provides her with significant satisfaction. W spends time in her flat with friends, meets family and goes on holidays with family members and also recently enjoyed a trip to Marrakech independent of her family but with the support of other adults and carers. It is stated that W requires reminders and prompts to carry out everyday tasks such as showering, changing clothes maintaining her flat and attending appointments.

[10]There was an occasion when W had sex with a man in her friend’s house in or about 2021. W discussed this with Ms Bate during the work being conducted around sexual relations and in a subsequent report, it is stated that W said she “knew that she wasn’t allowed to have sex, but because she wanted to and it was her birthday she still went ahead.” Ms Bate states that W said she knows she shouldn’t have done it, and told me it was “consensual and enjoyable”.

[11]The views of W and her Participation in the case.

[12]W has consistently stated that she would wish to be able to engage in sexual relations. In the report by Ms Bate and Ms Stevens referred to below W stated that she “is very keen to find a partner and enjoy a sex life, she says that she has a good sex drive.” W has had frequent discussions with her solicitor in which she has always confirmed that she wishes to be able to enter into sexual relations. In discussions with her solicitor on 17th March 2025 W referred to this and stated “Not to make things complicated, but I did break the court order and have sex. I would say that it was like the most delicious chocolate and I would say it’s my right and this has been going on too long.” I would add that there have been several occasions in the documentation in which it has been stated that W is not allowed to have sex. This is clearly not the order that was made and should not be explained to W in such terms.

[13]In terms of W’s participation in the case, her views have been fully aired through her representation and she has frequently been visited by her solicitor. W attended the hearing throughout, and I met with her together with her solicitor and support worker prior to the commencement of the hearing. A full attendance note of that meeting has been provided to the parties, which includes the following: i) W stated that “I am a busy independent lady” ii) “I am a shopaholic” and confident travelling by bus. iii) W explained her work at McDonald’s where she had been employed for three years and she confirmed that she enjoyed the work. iv) W explained about her holidays to Marrakech and skiing in Austria. v) She stated that “I love my flat” and that I “keep it spotless”. vi) When asked as to why people may be worried about the issues before the court W stated “probably because of what I did” referring to getting married. She added that she has learned her lesson and that if anyone hurt her now she would go to the police. vii) W stated that if it was decided she had capacity to engage in sexual relations and get married that “I would be really happy”. In terms of any new relationship, she stated “I would make sure I was safe and not abused. I would give it a year or two years to get to know them and if I realise I love them to be with them I can be honest and say I do trust and like you. I can take safe time and not rush. It depends on when I do find the right man. I have to be aware of abuse and make sure I am not vulnerable and in the situation where I got in trouble.” viii) In terms of keeping safe W stated that she would not come to harm adding “I will be honest with my guiding carers. I am honest with them about things I don’t tell my family. What keeps me safe is that I can tell them.”

[14]Incidents of Concern

[15]There have been a number of situations which have occurred that highlight the anxiety of the Local Authority. These are: i) W asked her accommodation provider, Y, to “keep me at home” because she did not want to meet a friend but felt unable to say “No”. ii) On one occasion W was staying at a friend’s home who did not wish for her to go to work. W stated that eventually she was able to leave because “luckily, my friend let me go to work”. iii) W had recurring arguments with her friend, K, which caused her to feel mentally unwell and have panic attacks. In May 2022 W was arguing with this friend by text and became so distressed and unable to cope with the situation that she was crying and pulling her hair out and a member of the public called an ambulance as they were so concerned. iv) 9th July 2004. W and her friend Z met two older men in a café. Z was trying to convince W to have sex with one of the men for money which W thought would be given to Z. W did not want to have sex with this man and wished to leave the café but despite this and being in a public place she did not feel able to leave until one of the men told Z to let her go following which she left. v) 17th July 2004. W was arrested for shoplifting whilst in town with Z. W suggested this was not the first time this has occurred. She stated that Z contacted her telling her to bring a big bag and Z would place items she wanted in the bag and W would leave the shop separately taking the items without paying for them and giving them to Z. These were items for Z’s personal use and not of high value. W was aware that this was illegal but felt the need to comply with Z’s demands. W did not seek support with this even when in a public place.

[16]Capacity Assessments

[17]There have been extensive assessments of W in relation to her capacity to engage in sexual relations. I do not intend to set them all out in detail, but it is important to consider each of them individually in order to understand the history on this issue. They were helpfully summarised in a table in the position statement of the Official Solicitor which I do not apologise for setting out in full: i) 16.3.16 Dr Stamps Forensic Psychiatrist Finding W lacks capacity to conduct proceedings; consent to sexual relations, enter into marriage/civil partnership; make decisions about residence; make decisions about care; make decisions about contact with others ii) 16.11.2021 Ms Bate, Learning Disability Nurse and Ms Stevens, psychologist Finding W has capacity to consent to sexual relations. This was work that was carried out with W following the original judgment of HHJ Thorp as had been raised at that hearing. iii) 31.1.2022 Ms Birley & Ms Wheaton, Social Workers Finding – W lacks capacity to consent to sexual relations iv) 14.5.23 Dr Camden-Smith, Consultant in Learning Disability Psychiatry Finding W has capacity to engage in sexual relations, enter into a marriage/civil partnership. W lacks capacity to conduct the proceedings. v) 14.4.24 Dr Camden-Smith Finding – W has capacity to engage in sexual relations; enter into a marriage/civil partnership, and make decisions about contact with others. vi) 16.10.24 Ms Birley & Ms Varga-Dudas Finding – W lacks capacity to make decisions about contact with Z vii) 31.12.24 – Dr Camden-Smith Finding - W has capacity to engage in sexual relations; enter into a marriage/civil partnership; but lacks capacity to make decisions about contact with others. W is a vulnerable adult. viii) 27.2.25 Dr Camden-Smith & Ms Birley Finding - Dr Camden – Smith considers that W has capacity to engage in sexual relations and to enter into a marriage/civil partnership whilst acknowledging that W may have great difficulty in exercising it. Ms Birley considers that she lacks capacity in both areas. It is agreed that W lacks capacity to make decisions about contact with others

[18]The recent reports are the most relevant and Dr Camden-Smith stated within the report of December 2024 the following: i) Capacity to engage in sexual relationships. “It remains my opinion that W is able to understand and retain the relevant information When supported to do so, and when not under duress, she is able to use the relevant information to make a decision and to communicate that decision.” ii) “W is exquisitely sensitive to the wishes of others and is pathologically eager to please. She consistently places the needs and wishes of others before her own even when this is to her extreme detriment. Whilst it is my opinion that W can make a decision, acting on that decision is significantly more challenging for her. Were she to be in a mutually respectful, safe relationship, it is my opinion that she would have capacity to make decisions about engaging in sexual relationships. However, if there is even minor perceived coercion, W is likely to acquiesce with what the other person wishes to happen.” iii) “In my opinion, whether this inability to act on her decision is a lack of capacity, or a vulnerable person requiring protection under the inherent jurisdiction is a legal rather than the clinical matter. My opinion is that W has capacity in this domain but is a vulnerable adult.” iv) Capacity to Marry. “It is my opinion that W is able to understand, retain, use and weigh and communicate any decisions about marriage or civil partnership, and therefore has capacity in this domain. However, as with sexual relationships, it is my opinion that W is extraordinary vulnerable to coercion, particularly in the context of a relationship.” v) Capacity about Contact with Others. (It is noted thatin her report in April 2024, Dr Camden-Smith was of the opinion that W did have such capacity.) “I have reviewed my assessment of W’s capacity to make decisions about contact with others in light of the information from July 2024 regarding Z…. W has shown no ability to extrapolate from her knowledge or generalise from her experience and is therefore unable to step back and see the wider picture as to the way in which Z abuses her, and in which she continues to place herself in situations in which she is vulnerable to this abuse. In my opinion W does not have capacity to make decisions about contact with others due to her inability to understand the ways in which she is vulnerable and generalise her learning to novel circumstances.”

[19]There was a difference of opinion between Dr Camden-Smith and Ms Birley as a result of which a meeting was held between the two on 27th of January 2025. This clarified the issues of dispute and agreement.

[20]Capacity to engage in sexual relations.

[21]There is full agreement that W is able to understand, retain, use and/or weigh all relevant information save for the matter of consent. It was agreed that W is able to communicate her decision. Ms Birley was of the opinion that W understands the theory that she can give or withhold her consent but is unable to apply this to herself. Dr Camden-Smith considers that she would be able to understand and use the information if she is supported to do so and is in a safe and mutually respectful relationship. It was her view that she could use and/or weigh the information, but is then sometimes unable to express or act on this decision due to her wish to please others, her fear of others or undue influence by others. Overall, Dr Camden-Smith was of the view that W has capacity, whilst acknowledging that she may have great difficulty in exercising such capacity.

[22]Capacity to make decisions about entering into marriage and civil partnership.

[23]The area of disagreement was again in relation to whether W could use the information in order to make a decision. Ms Birley took the view that she could not do so because of her overwhelming need to please as against Dr Camden Smith who considered she could make such decisions with necessary support but may have great difficulty putting it into action due to her vulnerability.

[24]Capacity to make decisions about contact with others.

[25]It is agreed that W does not have capacity in this area due to an inability to understand the ways in which she is uniquely vulnerable, and the ways in which others may pose a risk to her.

[26]It was also agreed that if the Court were to find W to have capacity in the contested areas, she would still be a vulnerable adult by virtue of her learning disability and is especially vulnerable to coercion, constraint or being prevented from making a free choice. This is most likely to arise in circumstances in which W does not wish to hurt, disappoint or displease the other person, or perceives the other person as having more authority or power that she does.

[27]Oral Evidence

[28]The only two witnesses to provide oral evidence were Ms Birley the senior social worker and Dr Camden Smith the consultant psychiatrist. The evidence centred on the issues of dispute between them as set out within their joint meeting in January 2025.

[29]Ms Birley confirmed her view that W now has a greater understanding of the issues involved compared to 2016 but that she could not put this learning into practice. Ms Birley did not consider that this had changed greatly since she was first involved with W nine years ago. The incidents of concern highlighted above confirmed Ms Birley’s opinion as she stated that W was well aware that shoplifting was wrong but it still went ahead and she was not able to put the information into practice.

[30]It was accepted that certain aspects of Ms Birley’s earlier reports were not accurate in terms of what had been stated by W or as to being the correct tests in law. In particular it is stated that W referred to “Having to please the man”. This was a phrase that was repeated and indeed included within the position statement of the Local Authority. However, on a closer analysis of the original report where it is stated that this was said, those words simply do not appear. Ms Birley accepts this to be the case and no longer relies on that phrase. However, her overall position remained that W simply could not put into practice the information that she had learned.

[31]Ms Birley accepted that the decision as to W’s capacity to engage in sexual relations would have a huge impact upon her. The overriding issue in Ms Birley’s view was W’s ability to say “no”. It was her view that if W was not in a loving relationship, then she would not be able to say ‘no’ in any pressured situation.

[32]Dr Camden-Smith confirmed that the incidents of concern did not alter her opinion as they are consistent with the information that she already had in relation to W. It did however confirm her views about W’s capacity to engage with others. Dr Camden-Smith stated that the decision to make contact with others is a much more complex one than the decision to engage in sexual relations as there are many more people involved, it is a longitudinal decision and there is less of a balancing exercise to be carried out. If there is some control over the individuals with whom W has contact, then there is also an element of control in relation to those persons with whom she may engage with sexual relations.

[33]Dr Camden-Smith confirmed that the eagerness to please is part of who W is and her learning disability means that she finds it more difficult not to act upon it. There was little in the way of actual examples to consider the issue in relation to sexual relations although W had had sex once and enjoyed it. As far as the incident in the café was concerned it was her view that W had communicated a decision that she did not wish to have sex with the individual involved but was not able to walk out of the door. In discussions with W Dr Camden-Smith states that she provided coherent examples of how she would act in future situations. It was accepted that potentially W would lack capacity if she was in a coercive relationship with whom she is spending time with which can be controlled to a reasonable extent. As far as what “minor coercion” referred to in her report she gave the example of a boyfriend stating that they would have to have sex, or he would no longer be her boyfriend. It was Dr Camden-Smith’s view that if this Court made the decision that W lacked capacity to enter into contact with others, then the risks in relation to sexual relations can be assessed in due course. It was considered that W now has a lot of scaffolding in place she is able to utilise, and this is evidenced by the fact that there are no instances of her having sex other than in 2021.

[34]The Law

[35]The fundamental points in relation to capacity are set out within sections 1-3 Mental Capacity Act 2005 which state as follows:

“1(1) The following principles apply for the purposes of this Act. (2) A person must be assumed to have capacity unless it is established that he lacks capacity. (3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success. (4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision. .... 2(1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain. (2) It does not matter whether the impairment or disturbance is permanent or temporary. (3) A lack of capacity cannot be established merely by reference to- (a) a person’s age or appearance, or (b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity (4) In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities .... 3 (1) For the purposes of section 2, a person is unable to make a decision for himself if he is unable- (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). (2) A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means). (3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision. (4) The information relevant to a decision includes information about the reasonably foreseeable consequences of- (a) deciding one way or another, or (b) failing to make the decision.”

[36]The Supreme Court considered the issue of capacity to engage in sexual relations in the case of A Local Authority v JB

[2021] UKSC 52

. It was stated that the court must address two questions: i) whether P is unable to make a decision for himself in relation to the matter and ii) whether that inability is because of an impairment of or a disturbance in the functioning of the mind or brain.

[37]The information that is relevant to the decision to engage in sexual relations was set out by Baker LJ in the Court of Appeal in the JB case as approved by the Supreme Court at paragraph 84:

“(1) the sexual nature and character of the act of sexual intercourse, including the mechanics of the act; (2) the fact that the other person must have the capacity to consent to the sexual activity and must in fact consent before and throughout the sexual activity; (3) the fact that P can say yes or no to having sexual relations and is able to decide whether to give or withhold consent; (4) that a reasonably foreseeable consequence of sexual intercourse between a man and woman is that the woman will become pregnant; (5) that there are health risks involved, particularly the acquisition of sexually transmitted and transmissible infections, and that the risk of sexually transmitted infection can be reduced by the taking of precautions such as the use of a condom.”

[38]It was further stated in the Supreme Court per Lord Stephens at para 60 that “For instance, "the matter" in this case cannot be described as being "person-specific" as there is no identified person with whom JB wishes to engage in sexual relations.”[68] As the assessment of capacity is decision-specific, the court is required to identify the correct formulation of "the matter" in respect of which it must evaluate whether P is unable to make a decision for himself: see York City Council v C at paras 19, 35 and 40. [69] The correct formulation of "the matter" then leads to a requirement to identify "the information relevant to the decision" under section 3(1)(a) which includes information about the reasonably foreseeable consequences of deciding one way or another or of failing to make the decision: see section 3(4). [70] I consider, and the Court of Appeal in this case held at para 48, that the court must identify the information relevant to the decision "within the specific factual context of the case": see also York City Council v C at para 39. In this way if the matter for decision relates to sexual relations, but does not relate to a particular partner, time or place, so that it is non-specific, as in this case, because JB wishes to "engage in" or "consent to" sexual relations with any woman, then the non-specificity of the matter will inform the information which is relevant to the decision. [71] Where the matter relates to sexual relations, it will ordinarily be formulated in a non-specific way because, in accordance with ordinary human experience, it will involve a forward-looking evaluation directed to the nature of the activity rather than to the identity of the sexual partner. It was added at para 75 that “to require a potentially incapacitous person to be capable of envisaging more consequences than persons of full capacity would derogate from personal autonomy”.

[39]In Calderdale Metropolitan Borough Council v LS (by her litigation friend the Official Solicitor) and MS (by her litigation friend the Official Solicitor)

2025 EWCOP 10

, Poole J observed that it is “part of the function of the Court of Protection to promote and protect the autonomy of those who are the subjects of proceedings; per Hayden J in Warrington BC v Y (By her litigation friend the Official Solicitor), AB and CD

[2023] EWCOP 27

at [29]:

"The danger of elevating the instinctive need to protect a vulnerable adult to such a degree that it corrupts the integrity of an objective assessment of capacity, is an ever-present danger in this sphere of work and requires vigorously to be guarded against. Paternalism has no place; protection of individual autonomy is the magnetic north of this court."

[40]It has long been accepted that in assessing whether a person has capacity to engage in sexual relations, the bar should not be set high. In Re M (An Adult) (Capacity: Consent to Sexual Relations)

[2014] EWCA Civ 37

, the Court of Appeal agreed with the description of the decision-making process by those with full capacity as “largely visceral rather than cerebral, owing more to instinct and emotion than analysis” (at [80]).

[41]In TZ v A Local Authority (No 1)

[2013] EWCOP 2322

, Baker J (as he then was) stated at [55]:

“Most people faced with the decision whether or not to have sex do not embark on a process of weighing up complex, abstract or hypothetical information. I accept the submission on behalf of the Official Solicitor that the weighing up of the relevant information should be seen as a relatively straightforward decision balancing the risks of ill-health (and possible pregnancy if the relations are heterosexual) with pleasure, sexual and emotional brought about by intimacy. There is a danger that the imposition of a higher standard for capacity may discriminate against people with a mental impairment.”

[42]In the case of IM v LM

[2014] EWCA Civ 37

a very practical issue was stated which must be borne in mind in making decisions of this nature at paragraph 77:

“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 non-specific basis.”

[43]In Re EE (Capacity: Contraception and Conception)

[2024] EWCOP 5

) it was agreed that EE had capacity to engage in sexual relations and lacked capacity to make decisions about her contact with others and Poole J accepted that to be the case. Her carers devised a plan to encourage her to consider the risks and benefits of developing a relationship with others, but to make a best interests decision about particular individuals to protect her from harm. Once EE had become familiar with an individual, a decision that she made to engage in sexual relations with that individual would be respected. Poole J considered the issue as to the interplay of lacking capacity to make decision about contact with others but having capacity to engage in sexual relations at paragraph 30:

“I should comment briefly on whether the agreed positions regarding capacity to make decisions about sexual relations and about contact with others, which I endorse, are consistent with each other. In Hull City Council v KF [2022] EWCOP 33, I said at [24], “It is difficult to see how a person who lacks capacity to decide to have contact with a specific person could have capacity to decide to engage in sexual relations with that person. Sexual intimacy is a form of contact with another or others.”

However, in PN (above) I was concerned with determining capacity to engage in sexual relations generally, not with a specific person and I found that PN lacked capacity to make decisions about contact with others but had capacity to engage in sexual relations with others. For the reasons set out in that judgment, in particular at [28], I did not consider those determinations to be inconsistent. Likewise, in the present case, I am content to find that EE lacks capacity to decide on contact with others, specifically those with whom she is not already familiar, but has capacity to decide to engage in sexual relations with others. EE’s carers have devised and adopted a care plan which has been based on those positions in relation to capacity. It follows an approach of the kind set out by Baker J in A Local Authority v TZ

[2014] EWHC 973 (COP)

and discussed in his oral evidence by Dr Todd when he referred to “positive risk taking”. The approach involves encouraging EE to consider the risks and benefits of meeting any particular person and the form of contact with them but ultimately to make best interest decisions to protect her from harm, or the risk of harm from contact with a person with whom she is unfamiliar, and to allow for interventions by a carer. However, once she has familiarity with a person and wishes to have sexual relations with them, her capacity to make that decision would have to be respected. The fact that JB had been found to lack capacity to make decisions relating to contact with others did not preclude the Court of Appeal and the Supreme Court from considering whether he lacked capacity to engage in sexual relations. The courts were clearly prepared, in principle, to find that he had capacity to engage in sexual relations notwithstanding that he lacked capacity to decide to have contact with others.” “It is difficult to see how a person who lacks capacity to decide to have contact with a specific person could have capacity to decide to engage in sexual relations with that person. Sexual intimacy is a form of contact with another or others.”

[44]In Local Authority v DY

[2021] EWCOP 28

Knowles J considered another case in which it was agreed that DY lacked capacity to make decisions about contact with others but the decision was reached that she did have the capacity to engage in sexual relations. This case was referred to by Dr Camden-Smith as she was the expert in that case as well. Her written evidence before Knowles J was to the effect that DY lacked the capacity to consent to sex on the basis that she would not be able to use or weigh information about consent if she was not in her present relationship. It was accepted by Dr Camden-Smith that she would have such capacity within her present relationship. The relevant sections of the judgement are as follows: Para 4 set out the issues between the parties in the case:

“the local authority was of the view that, when unsettled or distressed, DY may be unable to make a clear and rational decision in relation to sexual relations but, when settled or in a familiar situation surroundings, then DY was able to make a capacitous decision. The Official Solicitor submitted that DY had the capacity to decide to engage in sexual relations contrary to a report of Dr Camden-Smith. It was submitted that Dr Camden-Smith may have let set the bar too high in her analysis of DY’s understanding of the distinction between consenting to sexual relations within and outside a relationship.”

Para 20. “ It was difficult to say what her capacity would be if her relationship with her present boyfriend were to end. When unsettled, DY may be unable to make a clear and rational decision…..It would be possible to support her if she expressed a wish in future to have a relationship with someone else. There were times when, unsupported, DY would lose capacity but if she were provided with support her capacity would not fluctuate.” Para 21The social worker “did not demur from the proposition advanced by the Official Solicitor that, in circumstances where there would be controls over who DY had contact with, DY would be able to be supported to make decisions about the act of sex.” Paragraph 23 “It is important to note that both parties were in agreement that DY lacks capacity to make decisions about her contact with others. I agree with that proposition. DY’s care plan will require the local authority to have oversight of her contact with others and there may be some individuals who pose so great a risk to DY that all contact with them should be forbidden. Within that protective context, DY should be able to decide for herself who she wishes to have sexual relationships with the local authority should put in place care arrangement to support her to make those choices safely.” Paragraph 31 “The evidence… As to how she might respond in other circumstances was uncertain and speculative. She should not be assessed as lacking capacity unless all practicable steps have been taken to support her to make the decision without success, that included putting in place a package of support to limit and/or mitigate the effect of any periods of distress or unsettled must. The local authority’s concerns about the risk of abuse and exploitation could be addressed through an appropriate package of care and contact arrangements, decided in DY’s best interests.”

[45]Conclusion and Analysis

[46]The central issue in this case concerns the wording set out by Dr Camden-Smith in her report where she stated “Were she to be in a mutually respectful, safe relationship, it is my opinion that she would have capacity to make decisions about engaging in sexual relationships. However, if there is even minor perceived coercion, W is likely to acquiesce with what the other person wishes to happen.” It is the Local Authority’s case that on an individual basis this means that W would lack capacity in any non-mutually respectful safe relationship and as such the test for capacity cannot be met. She would lack the ability to say “No” in such circumstances.

[47]The Official Solicitor states that it is accepted by all that there are certain circumstances in which W would have the capacity to engage in sexual relations, that is to say when she is in a mutually respectful and safe relationship, and the order sought by the Local Authority would prevent W from exercising such capacity. The issue concerning any other type of relationship can be mitigated by W being provided with support to make a safe decision. It is argued that that is the rationale within the Mental Capacity Act and is the proportionate approach.

[48]In the words of Knowles J inDY above :

“I begin by acknowledging the real tension in this case between a desire to protect DY and a decision to permit her freedom to engage in sexual relationships which might place her at some risk.”

[49]In considering the issues relating to capacity to engage in sexual relationships and also to enter into a marriage or civil partnership the following factors can be gleaned from all of the above authorities and the Act : i) There is a presumption of capacity. ii) The burden for displacing that presumption rests with the Local Authority. iii) The test must be one on the balance of probabilities. iv) The test relating to engaging in sexual relationships must be on a future general basis rather than a person specific basis. v) It is agreed that W lacks the capacity in relation to contact with others. vi) The test can be no higher for those lacking capacity than those who are capacitous. vii) The bar must not be set too high.

[50]The legal considerations must all be considered in the context of the facts relating to W. I am satisfied that as far as this case is concerned those facts include: i) W has a strong and supportive relationship with her carers and support workers. ii) W has a strong desire not to “break the rules” as has been evident in her decisions not to enter into sexual relations (save for on one occasion, which was not disclosed to the Local Authority prior to it taking place) since the decision of HHJ Thorp in 2016 even though she has a strong wish to do so. iii) There have been evidenced non-sexual situations in which W has not been able to say “No” even though she was aware that what was occurring was “wrong”. iv) W has fully accepted the safety measures set out within her care and support package and there is no evidence that she has ever failed to comply with those measures. v) W has the capacity to engage in sexual relations when in a mutually respectful and safe relationship. vi) W has increased her knowledge in relation to sexual relations since the earlier decision in 2016 and it is accepted that all of the limbs of the test set out by Baker LJ above are met save for “the fact that P can say yes or no to having sexual relations and is able to decide whether to give or withhold consent” in certain circumstances.

[51]The evidence of Dr Camden-Smith was not that W lacked the capacity to decide whether it was “wrong” to undertake a particular act but that she had difficulty in exercising that capacity. The example provided was failing to leave the café when it was clear she did not wish to be there when discussion was being had about her having sex with the older men.

[52]The extensive work that has been carried out by the Local Authority since the 2016 decision has led to a significant increase in W’s knowledge in relation to engaging in sexual relations to the extent that it is now accepted that she has all of the appropriate information and the only issue is whether she would be able to weigh up all of that information if she was in a situation of coercion, including minor coercion.

[53]In general, the Local Authority has the ability to make best interests decisions in relation to the individuals with whom W should have contact. On the basis of the full cooperation and disclosure that W has exercised to date I am satisfied that the Local Authority would have the ability to play a full role in such decisions in the vast majority of incidents in which W makes contact with an individual. It is likely, in the vast majority of instances that the individuals with whom W would wish to engage in sexual relations would be those with whom she has already had contact. That is a group of individuals over which the Local Authority will have some control bearing in mind the protections in place and the agreed position that W lacks capacity in regard to with whom she has contact.

[54]The cases of EE and DYabove are examples of situations whereby the individual had been found to lack capacity in relation to contact but did have capacity to engage in sexual relations. In EE it was held that the care plan encouraged EE to consider the risks involved in meeting any particular individual and the carers could intervene when appropriate, but once she is familiar with an individual her decision to engage in sexual relations should be respected. Likewise in DY it was considered that support could be provided to DY in times when she was unsettled and once she received such support her capacity would not fluctuate. It is a central tenet within the Mental Capacity Act at s.1(3) that all practicable steps to help him to do so have been taken without success. In respect of W I am satisfied if all of the relevant practical steps are taken to support her in making these decisions then she would retain capacity.

[55]This Court must ensure that the bar is not set too high and that the test not be more onerous for W than any other member of the public. The Local Authority could state that if W engaged in a sexual encounter with an individual on their first meeting then there would have been no opportunity for them to have assessed that individual in any way and they could not provide any support. However, that is likely to be the exception rather than the rule, as W is clear that she wishes to be able to have a boyfriend which appears to suggest a longer term relationship.

[56]Further, in the vast majority of such cases involving fully capacitous individuals there is little, if any, assessment carried out of the risks involved or whether the encounter would be one in which there is mutual respect between the individuals involved. I am satisfied that it would be setting the bar too high, and higher than it would be for capacitous individuals to state that W lacked capacity in such situations. As was said in TZ “There is a danger that the imposition of a higher standard for capacity may discriminate against people with a mental impairment.” There is a risk that would be occurring with W if the order sought by the Local Authority was to be granted.

[57]In all of the circumstances I accept and adopt the position set out by Dr Camden-Smith and supported by the Official Solicitor – W does have the capacity to engage in sexual relations but she is a vulnerable individual who will need support at appropriate times to be able to effectively exercise that capacity. The care and support plan is to be drawn up in such terms as to be able to provide that support.

[58]Capacity to Marry/Enter Civil Partnership. There has been less discussion in relation to this issue but the issue between the parties is the same as with the capacity to engage in sexual relations: the Local Authority state that W demonstrates some understanding but would not be able to use that information due to her inability to recognise her own vulnerabilities and she would not be able to say “No”.

[59]The law on this matter was summarised by Theis J in Local Authority A v ZZ (by his litigation friend the Official Solicitor)

[2024] EWCOP 21

at 32: “in the case of London Borough of Southwark v KA & Ors

[2016] EWCOP 20

, Parker J had explained the principles in these terms: "[76] The test for capacity to marry is also a simple one:(a) Marriage is status specific not person specific.

(b) The wisdom of the marriage is irrelevant.

(d) P must understand the duties and responsibilities that normally attach to marriage, including that there may be financial consequences and that spouses have a particular status and connection with regard to each other.

(e) The essence of marriage is for two people to live together and to love one another.

(f) P must not lack capacity to enter into sexual relations. [77] The decision is about capacity and not welfare. Thus I do not take into account aspects of his decision making which affect the consequence of his decision making, so long as they do not affect the decision making process in itself."

[60]The reality is that there is less scope in decisions relating to marriage to be taken with an individual of whom the Local Authority did not have knowledge. The evidence clearly supports a finding that W has progressed significantly since 2016 and her covert marriage to X. There is a high degree of co-operation between W and those providing her with support and she is open with them to such a degree that she would be unlikely ever again to be in a similar situation. This will provide the Local Authority with the ability to provide all of the support that would be required by W to be able to have capacity to make her own decisions relating to marriage.

[61]I am satisfied that W does have the capacity to enter into marriage or a civil partnership. His Honour Judge Farquhar