X City Council v MB & Ors [2006] EWHC 168 (Fam)

[2006] EWHC 168 (Fam)Case No FD05P00566
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(In Private)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 13 February 2006
Before
MR JUSTICE MUNBY
Between
X CITY COUNCILClaimant(1) MBDefendants(2) NBDefendant(3) MAB (by his litigation friend the Official Solicitor)Defendant
In the matter of MAB
Mr Adrian Whitfield QC and Ms Hilary Watson (instructed by the City Secretary) for plaintiff (local authority)Ms U R Sood (instructed by Smith Partnership) for first and second defendants (father and mother)Ms Alison Ball QC (instructed by Irwin Mitchell) for Official SolicitorHearing Hearing dates: 28-30 November 2005
Judgment
[1]MAB was born in 1980, so he is 25 years old. He suffers from marked autistic spectrum disorder, which has been evident from the age of 3. He shows impaired reciprocal social relationships with limited empathy or understanding of the needs of others. He has impaired communication and very little language. He exhibits challenging and unpredictable behaviour. His older brother, who was born in 1978, also has severe autism. He has a younger brother born in 1983 who is unimpaired and is indeed at university. The family is Muslim and comes from Pakistan but all three children were born and brought up and live in this country. In fact all three children still live at home with their father, MB, and mother, NA.[2]It is common ground that MAB is a patient within the meaning of CPR Part 21.1(2)(b). Accordingly he acts by the Official Solicitor as his litigation friend.[3]Since June 1998 MAB has been under the care of Dr C, a Consultant Psychiatrist in Learning Disabilities. As will become apparent in due course, Dr C has long been of the view that MAB lacks the capacity to marry. The matter is now beyond dispute.[4]An independent expert, Dr Nicholas Land, who is a Consultant Psychiatrist in Learning Disabilities and Deputy Medical Director and Associate Medical Director (Learning Disabilities) of Tees and North East Yorkshire NHS Trust, has produced a detailed report dated 27 July 2005 which no-one has challenged. In that report Dr Land concludes, giving detailed explanations for his conclusion and applying the test in Sheffield City Council v E [2004] EWHC 2808 (Fam), [2005] Fam 326, that MAB lacks the capacity to marry. Dr Land also concludes, again giving detailed explanations for his conclusion, that MAB lacks the capacity to consent to sexual relations. As he puts it, MAB does not have even a rudimentary understanding of the practical issues of human reproduction.[5]In a report dated 21 October 2005 Dr C was equally clear:
“In my opinion, [MAB] does not understand the nature of the contract of marriage. This is because of his level of learning disability which precludes him from understanding the mutual responsibilities of marriage … It is also my opinion that because of his autistic spectrum disorder he cannot grasp the social implications of marriage and duties and responsibilities normally associated with marriage.”
[6]The present proceedings were started on 24 March 2005 by the local authority for the area where MAB and his family live. The local authority, which has had extensive involvement with MAB and his family, providing support services for the family and for MAB and his elder brother, was concerned that MAB’s parents were about to take him to Pakistan, possibly to be married. The same day Her Honour Judge Bevington, sitting as a Deputy High Court Judge, made various orders, including a tipstaff passport and all ports alert order, and granted various injunctions. Those injunctions have remained in place ever since.[7]The matter came on for trial before me on 28 November 2005. There was, as I have said, no issue between the parties as to MAB’s lack of capacity. The main issue was as to what if any relief, and in what form, should be granted to restrain MAB being married or being taken to Pakistan. On that there were differences between the various protagonists: Mr Adrian Whitfield QC and Ms Hilary Watson appearing for the local authority, Ms U R Sood appearing for MAB’s father and mother, and Ms Alison Ball QC appearing for MAB’s litigation friend, the Official Solicitor.[8]Very properly, and in my judgment wholly appropriately, the local authority accepts that MAB’s parents are deeply committed to the well-being of all their children. Mr Whitfield correctly described them as loving and heroic parents. I should like to associate myself with that description. The parents, I have not the slightest doubt, are devoted and committed in their care for MAB and his elder brother, just as they are also, of course, devoted to their youngest son. Their only motivation is to do their very best for their sons. Their sons’ welfare is their only consideration. It is their guiding objective. Many parents would long ago have buckled under the strain. MAB’s parents have not.[9]Two very impressive character witnesses were called, one an elected member of the local authority and the other an Anglican clergyman who, as it happens, lived for some years in Pakistan. Both know the parents very well. Both spoke of them in the highest terms, displaying, as it seemed to me, a profound admiration and respect for the parents and everything they had being doing over the long years of looking after their sons. That admiration and respect, I have no doubt, was well justified. It accorded entirely with the impression I formed from observing the parents in court and whilst giving evidence. The parents are entitled to an unqualified recognition – in my case a humble and admiring recognition – of their commitment and devotion to their sons.[10]There is no doubt that for many years it has been the ambition of MAB’s parents that he should marry his first cousin R. She was born in 1978 and is the daughter of MAB’s mother’s sister. She lives in Pakistan. The local authority accepts that it is entirely understandable that MAB’s parents should wish to see him happily married. But it is concerned that, as Ms Farooqi Thakrar, the independent social work expert put it in her report dated 2 August 2005, “Given the lack of social support for people with learning disabilities in Pakistan, marriage between a learning disabled person and a person without a learning disability is often considered a means to securing their future care.” The local authority is also concerned that, particularly in Pakistan, there may be cultural and family pressures towards marriage despite the parents’ very clear insistence that they would not force an unsuitable or unwanted marriage on their son or niece.[11]The essential thrust of the local authority’s case is that MAB’s parents have not abandoned hope of a marriage between MAB and R, indeed, as Mr Whitfield puts it, that they have shown “marked persistence” in exploring the possibility of marriage between MAB and R. And this even though the evidence is clear that he lacks the capacity to marry, even though all attempts by R to obtain leave to enter this country as his fiancée have failed and even though the evidence is also clear that MAB is not at present able to tolerate the long flight to Pakistan. The local authority’s case is that performance of a ceremony of marriage abroad while MAB lacks capacity would be, as it puts it, “disastrous” because, quite apart from the risks for MAB attached to the long distance he would have to travel,(i) if the couple attempted to return, and the authorities knew that the marriage was not considered valid, R would be barred entry and(ii) if they stayed abroad the facilities for looking after MAB, as well as parental support, would be less available than they are in this country.[12]The local authority recognises that these are issues which require sensitive exploration, not least bearing in mind the undoubtedly deep concern which his parents have for MAB’s welfare, but they submit that nonetheless at the end of the day this is a case where injunctive relief is necessary to safeguard and promote MAB’s best interests.[13]From 1999 until July 2005 MAB’s parents were taking active steps in furtherance of their ambition that MAB should marry R: i) In April 1999 an application was made to the Entry Clearance Officer in Islamabad for leave for R to enter this country as MAB’s fiancée under paragraph 290 of the Immigration Rules, HC 395. That application was refused by the ECO on 18 May 1999. R appealed. Her appeal was heard by an Adjudicator, Professor G K Morse, on 20 March 2000 and dismissed in a determination dated 13 April 2000. Applying the test set out in Mohd Meharban v ECO Islamabad [1989] Imm AR 57, Professor Morse held that MAB and R had not “met” within the meaning of paragraph 290(ii), their only meeting having been in 1983 when MAB was aged 3. ii) In July 2001 an application was made to the Secretary of State for the Home Department for a visa to enable R to settle permanently in this country. The application was made outside the normal Immigration Rules and, as it was put, on compassionate grounds. It was refused by the Secretary of State on 14 December 2001. R appealed and filed additional grounds by letter dated 30 May 2002 raising various issues under the European Convention for the Protection of Human Rights and Fundamental Freedoms. Her appeal was heard by an Adjudicator, Mr P J M Hollingworth, on 17 September 2003. The appeal was successful, Mr Hollingworth’s reasons being set out in a determination dated 8 December 2003. On 10 February 2004 the Immigration Appeal Tribunal (Mr K Drabu) gave the Secretary of State permission to appeal. The appeal was heard by the IAT (Mr M S W Hoyle, Mr B D Yates and Mr R A McKee) on 15 October 2004 and allowed for reasons set out in a decision dated 13 December 2004. Essentially the IAT allowed the appeal because the parties had never “met”. That being so there was no basis for any exercise of discretion, and there could be no breach of Article 8 given the absence of any established family life as between R and MAB. iii) By letter dated 7 July 2005 an application was made to the ECO at Islamabad seeking leave for R to enter as a family visitor for 6 months, that being something that had, in effect, been suggested by the IAT (see paragraph 10 of its decision dated 13 December 2004). That application was refused by the ECO on 28 July 2005. As I understand it, there has been no appeal.[14]As recently as in a witness statement dated 28 September 2005 the father was referring to his “constant desire to have my son and [R] meet and familiarise themselves with each other, and to ensure that they could live together as a couple before contemplating arranging a marriage ceremony.”[15]Now as Mr Whitfield was understandably at pains to point out, there are a number of striking features about these events. In the first place, R was described throughout as MAB’s fiancée (see, for example, his father’s use of that expression in his evidence to the Adjudicator at the hearing on 20 March 2000, and in his witness statement dated 5 September 2003). The father sought before me to downplay the significance of this, asserting in his witness statement dated 28 September 2005 that “we used the word fiancée in documents within the immigration application in accordance with legal advice, to satisfy the immigration rules. It did not mean there had been a formal engagement.” That may be, but the implication of the repeated use of the word fiancée is clear enough. Furthermore, as the bare chronology of events shows, the family’s endeavours to bring R to this country with a view to her marrying MAB were pursued with vigour and throughout a protracted period of over six years. Moreover, this was all being done at a time when, as his parents knew, the consistent view of Dr C was that MAB lacked the capacity to marry. Thus, as the medical notes show, as early as 29 January 1999 Dr C in the course of a long discussion with MAB’s parents expressed his view as being (see his letter dated 3 February 1999) that MAB “cannot fully grasp the concept of marriage and its implications.” The medical notes also show Dr C telling MAB’s father on 3 February 2005 that MAB “cannot give consent to marriage.”[16]But there is, as Mr Whitfield also pointed out, another striking feature of the family’s endeavours. An important fact being relied upon by the family in support of its case that R should be allowed to enter this country, either as a fiancée or as a family visitor, was the assertion, backed up with medical evidence from Dr C and from MAB’s general practitioner, Dr R, that MAB was unable – because medically unfit – to travel to Pakistan (see letters from Dr R dated 15 August 2003 and from Dr C dated 4 September 2003 and 2 October 2003). Dr C said that MAB “is unable to travel long distances due to his Autism, associated behaviours and his learning disability. He cannot tolerate long journeys in a confined space”. Indeed, in the letter to the ECO dated 7 July 2005 it was said that MAB “is unable to travel to Pakistan due to his medical condition. Furthermore, no Airline permits him to travel with them due to their safety regulations”. This would appear to be a reference to letters from British Airways and Pakistan International Airlines dated respectively 24 May 2004 and 24 June 2004. The letter from PIA made it clear that it would carry MAB only if there was a medical consultant’s fitness certificate. The letter from BA pointed out that in the event of any disturbance by a passenger endangering either the crew or other passengers the flight crew would have to take appropriate action “which could result in diverting the flight, offloading the passenger or even deny boarding on the return flight.” As Mr Whitfield commented, the stakes are very high: suppose, for instance, that MAB was offloaded in, eg, the Gulf and stranded there because no airline would carry him.[17]The medical records, which show that on 11 September 2003 Dr C’s view had been that MAB “is not fit to go on a long plane journey”, record discussions between MAB’s father and Dr C during January and February 2005 about the father’s plan to take MAB to Pakistan. That was something which he had also discussed with the local authority at a meeting on 11 January 2005. This meeting, or rather the local authority’s note of the meeting, is important because of what the father is recorded as having said. (The father disputes the accuracy of the almost contemporaneous note but I am satisfied that it is accurate and reliable.) The key passages in the note read as follows:
“He is planning to take [MAB] to Pakistan probably late Jan/Feb for 1-2 weeks. The purpose of this visit is for [R] to meet [MAB] with a view to marriage. If the woman wishes to go ahead plans will be made for the marriage to take place while [MAB] is in Pakistan. Details will then be passed to Home Office with a view to the young woman coming to this country ... [The father] told me that he has spent a lot of time talking to this woman + has tried to “put her off”
. He is concerned that if she goes ahead with this she may later change her mind. The woman is insisting on meeting [MAB] before making her decision. [Father] stressed that he hopes she will not want to go ahead with this after she has met [MAB]. He told me that [the mother] is very much in favour of this match + if he did not go along with this it would cause a split in the family … This situation has arisen as all the family’s attempts to bring this young woman over have failed (Home Office decision).”[18]On 27 January 2005 Dr C wrote to the father:
“I do not think it would be in [MAB’s] best interests for him to go on a long haul flight. I am worried about the possibility of [MAB] becoming agitated during the flight. I am also worried about the possibility of the risks to the safety of other passengers and cabin crew … I am aware that you mentioned the issue of offering sedation to [MAB] during the flight; I think this might go some way towards reducing the risk but I still think that this would not reduce the level of risk to an acceptable level.”
[19]On 3 February 2005 there was a discussion between Dr C and MAB’s father during which the father indicated that he was still planning to take MAB to Pakistan in March. The father told Dr C that he “wanted [MAB] to meet [R]. He wants her to get visa to come & look after [MAB] for 6 months to then decide whether she wants to marry him.” He told Dr C that he was not intending to arrange a marriage in Pakistan. Dr C told the father that “it would not be safe for [MAB] to go on flight – I was clear about this.” And, as we have seen, Dr C went on to reiterate to him that MAB “cannot give consent to marriage.”[20]Dr C was so concerned that the very next day (4 February 2005) he wrote to the Medical Defence Union asking whether he had a responsibility to inform the airline of the situation. The MDU responded on 9 February 2005 stating that since Dr C had made the family aware of his concerns “it is reasonable that the family therefore should discuss with the airline regarding the situation … it would appear appropriate that … they … seek further advice from the airline itself in the first instance.”[21]On 17 March 2005 there was an important meeting chaired by Dr C and attended by the father and representatives of the local authority. The minutes record the father as saying that he was intending to take MAB for a 10-day holiday to Pakistan from 30 March 2005:
“Dr C asked [the father] if he had informed the Airline of [MAB’s] special needs. [The father] said he hadn’t yet bought the tickets but would ensure this was done when he did so ... Dr C said to [the father] that he ([father]) was aware of his (Dr C’s) views on this matter. Dr C asked that it be minuted that in his opinion the flight to Pakistan was too risky for [MAB] to undertake. [The social worker] suggested that as [MAB] was only just beginning to settle after a prolonged period of unsettled behaviour that such a journey would be detrimental to [MAB]. [The father] stated that he was under pressure to take [MAB] to Pakistan and that it couldn’t be delayed.”
I might add that the local authority’s records show that the “unsettled behaviour” to which the social worker was referring included incidents in January and February 2005 when MAB had punched the taxi driver who drives him to and from his day centre and had tried “several times” to put on the hand-brake whilst the taxi was moving. (The consequences were MAB to behave in this kind of way on an airplane could obviously be extremely serious.) The minutes record as part of the “agreed action” that the airline was to be “fully informed” by the father of MAB’s care needs prior to the proposed flight to Pakistan.[22]Following that meeting, but the same day, the father had a further discussion with Dr C during the course of which Dr C again reiterated his view that MAB “would not tolerate a long haul flight.”[23]On 21 March 2005 the father confirmed to the local authority that he was definitely going to Pakistan with MAB on 30 March 2005. The proceedings, as I have said, were commenced three days later on 24 March 2005.[24]I need not go through the written evidence in any detail. But there is one matter to which I need to draw attention. In her affidavit sworn on 24 March 2005 the social worker had asserted in terms that MAB did not have the capacity to consent to a marriage. In his first witness statement dated 27 April 2005 the father said:
“I firmly and strongly believe that [MAB] understands what being married entails, for example, understanding the marriage ceremony and his vows, his obligation to share a home, domestic and social life together, and to look after his wife to the best of his ability.”
How the father could really have believed that, given what he had been told by Dr C, escapes me. I regret to have to say that the father also gave a very partial account of Dr C’s views about MAB travelling to Pakistan, contenting himself with the statement that although Dr C “had reservations … he did not do anything more than give his opinion.” Only in September 2005 did the father acknowledge that MAB “at present … does not have the capacity to marry.”[25]On 25 August 2005 the father made a complaint against the local authority. The details do not matter for present purposes, but it is interesting to note that in the formal ‘Record of Complaint’ signed by him on 5 September 2005 as true and accurate the father said in relation to the proposed trip to Pakistan “I knew it was a gamble but [MAB] is a good traveller.”[26]So much for the facts. I can take most of the law very quickly.[27]So far as concerns the nature of the court’s jurisdiction and the basis upon it is exercised in cases such as this, the law is to be found in three recent cases: In re SK (An Adult) (Forced Marriage: Appropriate Relief) [2004] EWHC 3202 (Fam), [2006] 1 WLR 81, M v B, A and S (By the Official Solicitor) [2005] EWHC 1681 (Fam), [2006] 1 FLR 117 and Re SA, A Local Authority v MA and others [2005] EWHC 2942 (Fam), see also Re K (A Local Authority v N and others [2005] EWHC 2956 (Fam). For present purposes the matter can be summarised as follows: i) The court is exercising an essentially protective jurisdiction, to be invoked if but only if there is a need to protect a vulnerable adult: here I am being asked to put in place protective measures to prevent a vulnerable adult being taken abroad to be married. ii) The court is justified in intervening in this kind of case if there is a real possibility of harm, in the sense in which those words were used in In re H and others (Minor) (Sexual Abuse: Standard of Proof) [1996] AC 563. iii) Particularly in this kind of case one needs to bear in mind that prevention is better than cure. As Singer J pointed out in In re SK (An Adult) (Forced Marriage: Appropriate Relief) [2004] EWHC 3202 (Fam), [2006] 1 WLR 81, at para [4], although a non-consensual marriage is voidable, that alone is plainly not an adequate remedy because, as he went on to observe, such a “marriage” is “nevertheless one which might engender irreparable and severe physical and emotional consequences for its victim.” So the protective jurisdiction is particularly important where the need is to take preventive steps in advance. iv) In this context the well known words of Lord Eldon LC in Wellesley v Duke of Beaufort (1827) 2 Russ 1 at page 18 are as apposite today as they were almost 180 years ago, and as equally applicable where the court is exercising its inherent jurisdiction in relation to vulnerable adults as when it is exercising its inherent or wardship jurisdictions in relation to a child:
“it has always been the principle of this court, not to risk the incurring of damage to children which it cannot repair, but rather to prevent the damage being done.”
Lord Eldon continued at page 20 with the observation that the jurisdiction:
“is founded on the obvious necessity that the law should place somewhere the care of individuals who cannot take care of themselves, particularly in cases where it is clear that some care should be thrown around them.”
[28]I add a reference to what I recently said in Re K (A Local Authority v N and others [2005] EWHC 2956 (Fam) at para [93]:
“We must guard against the risk of stereotyping. We must be careful to ensure that our understandable concern to protect vulnerable children (or, indeed, vulnerable young adults) does not lead us to interfere inappropriately – and if inappropriately then unjustly – with families merely because they cleave, as this family does, to mores, to cultural beliefs, more or less different from what is familiar to those who view life from a purely Euro-centric perspective. It would be a tragic irony if the full weight of the wardship jurisdiction was to be deployed against those sections of our community who, paying particular regard to the importance of marriage and to the unacceptability of pre-marital sexual relations, tend for that very reason to marry young, whilst leaving untouched those sections of our community who, treating pre-marital sexual relations and co-habitation without the benefit of matrimony as almost the norm, tend for that reason not to marry until they are well into their twenties.”
That was said in the context of proceedings in relation to the sixteen year old daughter of Iraqi Kurds. But the same sensitivity is called for in this and other cases involving incapacitated adults.[29]In that case I declined to make an order. In the present case, in contrast, I have no doubt that some kind of order is appropriate.[30]In the first place, everyone is agreed that I should grant a declaration to the effect that MAB does not have the capacity to marry. I agree that I should make such a declaration. I emphasise that the point does not proceed merely by way of concession or agreement. I am entirely satisfied in the light of Dr Land’s evidence and Dr C’s evidence that MAB does not have – indeed that he has never had – capacity to marry.[31]Mr Whitfield emphasises, and I entirely agree, how very important it is that all concerned should understand and accept that, if MAB’s incapacity prevents him entering into a valid marriage in this country, the courts of this country will not recognise as valid a marriage celebrated in Pakistan, and this even if that marriage is treated as valid by the law of Pakistan. This proposition, which I have no hesitation in accepting, was not challenged by either Ms Sood or Ms Ball, though their submissions, Ms Sood’s in particular, were very helpful in clarifying matters for me.[32]This is an important point, with a significance that extends far beyond the present case. Since a marriage celebrated in Pakistan in such circumstances will not be recognised as valid in English law, it follows, for example, that it will not be recognised by the ECO or the Secretary of State as valid for the purposes of the Immigration Rules. So I should explain the basis for my decision.[33]Capacity to marry, as contrasted with the formal validity of a marriage, is governed by the ‘dual domicile’ rule. As stated by Dicey & Morris, The Conflict of Laws (ed 13), Vol 2, Rule 68, and subject to certain exceptions none of which is material for present purposes, the general rule is that “capacity to marry is governed by the law of each party’s antenuptial domicile”. This means that “a marriage is valid as regards capacity when each of the parties has, according to the law of his or her domicile, the capacity to marry the other”. Conversely, “a marriage is (normally) invalid when either of the parties lacks, according to the law of his or her antenuptial domicile, the capacity to marry the other.”[34]This rule has been the subject of much academic dispute and a certain amount of judicial debate: see the discussion in Dicey & Morris at paras 17-055 – 17-069, in particular of Lord Simon of Glaisale’s observations in Vervaeke (formerly Messina) v Smith [1983] 1 AC 145 at pages 165-166 and also of the various judgments in Lawrence v Lawrence [1985] Fam 106. It has, for example, been suggested that a marriage which would otherwise be invalidated by the ‘dual domicile’ rule will be valid if the parties have capacity under the law of the country of the prospective matrimonial home – the law of the country of their intended matrimonial domicile – or under the law of the country with which the marriage has its most real and substantial connection. There is no need for me to enter into this debate, for whichever of the three proposed rules applies, the result in this case is the same. For in this case, and in many such cases, England is not merely the country of MAB’s domicile. It would also be the country of the intended matrimonial domicile and the country with which any proposed marriage would have its most real and substantial connection.[35]The one thing which in my judgment is quite clear, and has been ever since the decisions of the House of Lords in Brook v Brook (1861) 9 HLC 193 and the Court of Appeal in Sottomayor v De Barros (1877) 3 PD 1, is that capacity to marry, in contrast with formal validity, is not governed by the lex loci celebrationis. So it is neither here nor there that a marriage celebrated in Pakistan might be recognised as valid in that country. The short point is that MAB’s incapacity to marry in the eyes of English law means that no marriage entered into by him, either in this country or abroad, will be recognised in English law. And if it is not recognised in English law it will not be recognised by English public authorities.[36]Mr Whitfield was initially minded to argue that the appropriate form of declaration was that MAB does not have the capacity to marry “whether inside or outside England and Wales.” Ms Ball and Ms Sood argued that the more appropriate formulation is a declaration that any marriage celebrated by MAB whether inside or outside England and Wales will not be recognised under English law. As Ms Ball correctly put it, the fact that a person may not in particular circumstances be able to contract a valid marriage under English law does not mean that under the law of another country, where the test of capacity may be different, that person may not be able to contract a valid marriage. She asks rhetorically whether it can be right – or indeed whether it would be effective – for this court to declare that the person does not have capacity to marry under the law of another country. I agree with Ms Ball’s analysis. The form of words originally suggested by Mr Whitfield is, in my judgment, wrong in principle: wrong as a matter of international judicial comity and wrong as a matter of English conflicts law. I shall accordingly make a declaration in the terms suggested by Ms Sood and Ms Ball.[37]The remaining matters in dispute lie within a surprisingly narrow compass, the gulf which initially separated the parties having narrowed significantly both before and during the final hearing. There are only three matters which remain in contention. It is convenient to take the first two together.[38]The first issue relates to whether I should accept the undertakings offered by MAB’s parents or whether, as Mr Whitfield would prefer, I should grant injunctions. Those undertakings are in substance to the effect that they will not cause or permit MAB to undergo any ceremony, whether civil or religious, of betrothal or marriage and that they will not take him out of the jurisdiction. There is no real dispute as to the ambit of the restrictions to which MAB’s parents should be subject, and to which they are willing to submit, but Mr Whitfield says that I should grant injunctions and not merely accept the undertakings proffered by MAB’s parents.[39]The second issue relates to the custody of MAB’s passport. Mr Whitfield submits that the tipstaff should continue to hold MAB’s passport and that MAB’s parents should be restrained from applying for any passport or overseas travel documents for MAB. Ms Sood, supported by Ms Ball, says that there is no need for this restraint.[40]Mr Whitfield, whilst not questioning their good faith, questions the parents’ reliability. He wonders whether they will be able to keep their promises, in particular given the family and other pressures which, he says, are still there. He suggests that MAB’s father may, despite what he has said, act in an inappropriate way unless categorically told – by means of an injunction – that he must not.[41]Ms Sood submits that the parents have been, are and will continue to be welfare-sensitive to MAB’s needs and that their past, present and intended actions reflect no basis for the injunctions sought. She suggests that the parents’ perseverance in their endeavour to arrange for MAB and R to meet shows their respect for MAB’s volition and free will: they have never contemplated a proxy marriage for MAB and have, she says, been anxious for the parties to meet for a trial period so as to ascertain both whether MAB has the capacity to marry and in any event whether he and R in fact wish to marry. She also points out that, despite the suggested Islamic stress on ‘arranging the marriage of one’s children [as] a parent’s duty’, the parents have never sought to arrange a marriage for MAB’s elder brother, who they have always recognised does not have the capacity to marry. Their different approach in relation to MAB reflects, she says, an appropriate recognition that MAB is less disabled than his older brother and their hope that in due course he may be shown to have the capacity to marry. She says that, although the parents may have had their differences with the local authority over care and respite issues, their approach to these proceedings is uninfluenced by this. She emphasises that there are no present plans either to arrange a marriage or to take MAB to Pakistan, but she points out that neither Dr Land nor Dr C is prepared to rule out the possibility of a recovery by MAB sufficient to enable him to fly to Pakistan and even possibly to marry. She submits that should there be a future improvement in MAB’s condition there should not be any unnecessary bar to his future life.[42]Ms Ball submits that I need to ask myself whether there is a real possibility of MAB being subjected to a ceremony abroad and/or left there with his fiancée or bride, whether there is a real possibility that MAB will be taken to Pakistan in the teeth of all the advice not to. She submits, on the one hand, that, although the parents have shown a real and consistent commitment to MAB and are motivated to act in his best interests, there is a risk that they may, despite his incapacity, believe that they are acting in his best long-term interests by arranging for him to meet and become attached to a person – R – who is prepared to be a companion and carer for him through marriage. She submits that this belief and impetus may be strengthened by cultural and familial considerations and pressures. And she suggests, echoing Singer J’s observations in In re SK (An Adult) (Forced Marriage: Appropriate Relief) [2004] EWHC 3202 (Fam), [2006] 1 WLR 81, at para [4], that whether such a marriage if performed in Pakistan would be recognised in English law is, in the final analysis, less important than the fact that MAB would become involved in a marriage relationship which he did not understand, to which he had not consented, and which might be emotionally damaging to him. As against all that she suggests that these risks have now receded, so that the situation can be adequately and appropriately safeguarded by undertakings and without the need for a passport order. She points to the stigma the parents will feel if they are injuncted. She points also to their protestations that they are law abiding citizens whose word can be trusted.[43]I recognise the parents’ understandable wish to arrange a marriage for MAB. I recognise their equally understandable wish to take him to Pakistan to meet his relatives and visit their country of origin. And I acknowledge the benefits to MAB of being allowed to make such a visit. But I cannot ignore the very clear medical and other evidence showing that at present such a visit would, because of the long flight involved, be not merely inappropriate for MAB but potentially dangerous or even disastrous. Nor can I ignore the fact that, until a very late stage in the proceedings, though no doubt with the best of motives and for reasons which in human terms demand sympathy rather than censure, the parents have been unwilling or unable – I am not sure it very much matters which – to face up to all the implications of what Dr C has been saying for so long and, at least in recent months, in such very clear terms.[44]But matters have moved on, not least, I am sure, in response to the dynamic of the proceedings. I have to assess matters today, obviously not ignoring the past – which so often is the best predictor of what may happen in future – but primarily focussing upon the future and an evaluation of future risk.[45]In essence I accept Ms Sood’s submissions. MAB’s parents are, in my judgment, entitled to clear findings that: i) there has never been, and is not likely to be, any question of them trying to coerce MAB or override either his free will or his wishes; ii) throughout the history of their endeavours to arrange his marriage they have been motivated by, and have endeavoured to act in, what they genuinely believed to be his best interests – they have never set out to act in a manner inimical to what they saw as his best interests; iii) they have never flouted the law or done anything to suggest that they will do so in future.[46]In my judgment sufficient reliance can be placed on the parents’ undertakings, given their good sense and their manifest concern for MAB. They are, in my estimation, decent, responsible, conscientious and honourable people. They are law abiding citizens. I am satisfied that they would not have offered the undertakings unless they were prepared to honour them. And I believe that they will be able to honour them and will honour them.[47]I should add that there is nothing, in my judgment, in the point that injunctions, so it is suggested, may carry more weight than undertakings with outside agencies such as immigration or passport authorities or foreign institutions. Were the need ever to arise, the court could act swiftly and, if need be, grant appropriate injunctions. For the moment it is sufficient to note that the order I am proposing to make provides for disclosure of appropriate documents to the Foreign and Commonwealth Office, the Home Office, the Registrar General and the British High Commission in Pakistan. This, in my judgment, provides more than adequate protection to cover any ‘gap’ between the perceived effect of undertakings as compared to injunctions. I use that phrase because there is not, in truth, any difference between the two. An undertaking is enforceable in precisely the same way as an injunction. Indeed, if anything, the court is likely to take an even more serious view of any breach of an undertaking, for the breach of an undertaking involves the breach of a solemn obligation voluntarily assumed, not the breach of an obligation involuntarily imposed.[48]The final matter, apart from costs, relates to the very important issue of a possible future change in MAB’s condition. His parents remain hopeful that he will sufficiently improve as to enable him to travel to Pakistan and possibly even to marry. The latter is, I fear, probably a forlorn hope, but it is important to appreciate that Dr Land does not absolutely rule it out. Nor does Dr C. Nor would I. As Dr Land acknowledges, MAB’s behaviour “fluctuates with medication and his social and family circumstances.”[49]On 24 October 2005 Dr Land signed a certificate to the effect that MAB lacked the capacity to manage his property and affairs. In answer to the standard form question as to the patient’s prospects of recovery of capacity he wrote:
“Negligible. Whilst his overall level of functioning varies there is no evidence that he has ever functioned at a level where he could grasp the necessary concepts to manage either his legal or financial affairs.”
That of course is not conclusive in relation to the different questions I am considering, for capacity is always ‘issue specific’, but it is certainly indicative of MAB’s level of functioning.[50]In his report dated 27 July 2005 Dr Land said:
“Realistically [MAB] would have to show a very substantial improvement in his understanding of marriage and relationship-related issues if there was to be any possibility of him having the capacity to marry.”
That, in essence, remained Dr Land’s view, as also Dr C’s view, by the time they had concluded their oral evidence. It certainly accords with the view I have formed having regard to all the evidence I have read and heard. But Dr Land continued with this important observation, with which I wholly agree:
“Nevertheless, the overwhelming importance of this issue to his family culturally, and potentially to him individually, would make it reasonable to reassess [MAB’s] capacity after an extended period of contact with his prospective wife.”
That, of course, assumes that in some way the extended period of contact Dr Land has in mind can actually be organised. And that in turn involves consideration of the possible future feasibility of MAB flying to Pakistan. Both Dr Land and Dr C, as I read their reports and understand their oral evidence, think that such a flight may be possible at some in the future, depending, amongst other things, upon how MAB is seen to react to travel in what Dr Land calls “lower risk environments” – lengthy train journeys and shorter internal flights.[51]Ms Ball submits that it is important that the, albeit remote, possibility of improvement in MAB’s level of understanding is recognised by the local authority and the court and that provision is therefore made for the possibility of the matter being reviewed in future. I agree. Mr Whitfield submits that clear guidelines should be laid down as to the circumstances in which MAB’s parents may seek to vary or discharge any declaration or other order I may make. Again I agree. I propose to make an order incorporating machinery for any future application, whether in the event of changed circumstances or otherwise, which embodies both those matters suggested by Ms Sood and Ms Ball and also those suggested by Mr Whitfield. I set out below the form of the order which I propose to make. It is self-explanatory.[52]There are two other matters I must deal with. The first relates to the test of capacity to consent to sexual relations, a matter which may yet arise in this case if and when MAB’s parents apply to the court to be discharged from their undertaking in relation to MAB’s marriage. It is appropriate for me to deal with this point now. I have heard argument on the point. Moreover, in the light of the order I propose to make – an order which provides for the filing of psychiatric evidence in support of any future application – it is highly desirable that there should be no room for misunderstanding as to the basis upon which that evidence should be prepared.[53]Ms Ball submits that any assessment of capacity to marry must take into account the question of capacity to consent to sexual relations. She submits that, although this aspect of the matter was not specifically considered in Sheffield City Council v E [2004] EWHC 2808 (Fam), [2005] Fam 326, capacity to marry must include the capacity to consent to sexual relations. She makes two points in support of this proposition. First, she submits that a sexual relationship is usually implicit in any marriage. Secondly, as she observes, unless there is capacity to consent to sexual relations there will be risk of serious criminal offences being committed contrary to the Sexual Offences Act 2003, in particular contrary to sections 30-37 which, as she correctly points out, apply whether or not the parties are married.[54]What Ms Ball says must, as it seems to me, be right as a matter of general principle.[55]Generally speaking, a sexual relationship is implicit in any marriage. As Sir William Scott said long ago, “Parties marry for offspring; for the enjoyment of each other’s person”: Briggs v Morgan (1820) 3 Phill Ecc 325 at page 330. And, after all, a marriage is voidable if it has not been consummated owing to either incapacity to consummate or wilful refusal to consummate: sections 12(a) and 12(b) of the Matrimonial Causes Act 1973. Moreover, a refusal of sexual intercourse may be a ground for divorce on the ground of ‘behaviour’ under section 1(2)(b) of the Act. Furthermore, in ordinary circumstances an agreement before marriage not to have sexual intercourse after its celebration strikes fundamentally at the basis of the marriage itself and is contrary to public policy and void: Scott v Scott (orse Fone) (Note) [1959] P 103 at page 106.[56]Lest there be any misunderstanding, I should make clear that there is nothing in this which in any way qualifies or otherwise affects what I said in Sheffield City Council v E [2004] EWHC 2808 (Fam), [2005] Fam 326. Having in that case posed the question at para [132], What then are the duties and responsibilities that in 2004 should be treated as normally attaching to marriage? I continued:
“In my judgment the matter can be summarised as follows. Marriage, whether civil or religious, is a contract, formally entered into. It confers on the parties the status of husband and wife, the essence of the contract being an agreement between a man and a woman to live together, and to love one another as husband and wife, to the exclusion of all others. It creates a relationship of mutual and reciprocal obligations, typically involving the sharing of a common home and a common domestic life and the right to enjoy each other’s society, comfort and assistance.”
The point which I am now addressing did not arise for consideration in that case, which is why I said nothing about it. I took it for granted that, as I have said, a sexual relationship is, generally speaking, implicit in any marriage.[57]Ms Ball suggests that neither “duty” nor “responsibility” is a particularly apt way of referring to the sexual component in a marriage. I agree.[58]Time was when our law took the view that a wife’s body belonged to her husband. Time was when our law believed, as Sir James Hannen P put it in Durham v Durham (1885) 10 PD 80 at page 82, that the “natural relations” which spring from marriage include “submission on the part of the woman”. Time was when consortium was understood as conferring on the husband the right to his wife’s society and services – her sexual as well as her domestic and social services – whilst conferring on her not so much a reciprocal right to her husband’s consortium as a correlative duty to give him her society and her services. However, and as I sought to demonstrate in Sheffield City Council v E [2004] EWHC 2808 (Fam), [2005] Fam 326, all this has now been swept away. The fact is that the wife is no longer the weaker partner subservient to the stronger. Today both spouses are the joint, co-equal heads of the family. And in so far as the concept of consortium still has any useful role to play, the rights of husband and wife (if “right” is indeed the correct word to use) must now be regarded as exactly reciprocal.[59]Moreover, as Ms Ball correctly reminds me, it was for many years the view (albeit sometimes doubted) that a wife, as part of the matrimonial contract, had consented to sexual intercourse with her husband and that she could not retract that consent. A married woman was deemed to consent to sexual intercourse with her husband. This view underlay both the assumption that a man could not be guilty of the rape of his wife and, as decided in The Queen v Clarence (1888) 22 QBD 23, that he committed no criminal offence if he infected her with a venereal disease. (The Divorce Court was more enlightened. For it had been recognised in the very early days of the new Court for Divorce and Matrimonial Causes that an adulterous husband who infected his wife with a venereal disease might be guilty of the matrimonial offence of cruelty, thereby entitling her to divorce him on the ground of adultery and cruelty: see Brown v Brown (1865) LR 1 P&D 46 and Boardman v Boardman, The Queen’s Proctor Intervening (1866) LR 1 P&D 233. At that time, of course, a wife could not obtain a divorce on the ground of her husband’s adultery alone. There had to be an additional aggravating feature or matrimonial offence: incest, bigamy, sodomy, rape, bestiality, cruelty or desertion.) These relics of a former age lingered on for a surprisingly long time. Only very recently were they exploded as the fictions they had always been. It was not until R v R [1992] 1 AC 599 that the husband’s immunity from prosecution for rape was finally swept away and not until R v Dica [2004] EWCA Crim 1103, [2004] QB 1257, that the rule in The Queen v Clarence (1888) 22 QBD 23 was overturned.[60]Ms Ball submits, as I have said, that these matters are not appropriately described in terms of “duties” or “responsibilities”. I agree and, if I may say so, did not intend to suggest anything different in Sheffield City Council v E [2004] EWHC 2808 (Fam), [2005] Fam 326. Ms Ball submits that what she calls the sexual element in marriage requires respect by each party of the right of the other to choose whether or not to engage in any and if so what sexual activity. This right to choose whether to engage in sexual activity cannot, she says, properly be described as either a duty or a responsibility. In these circumstances, she suggests, the nature of the contract of marriage may need to be elaborated in recognition of the fact that marriage requires respect by each party of the right of sexual choice by the other.[61]I agree with Ms Ball’s analysis, though without of course overlooking that the refusal of a sexual relationship may in certain circumstances entitle the other spouse to a decree of either nullity or divorce. Generally speaking, a sexual relationship is implicit in the very idea of a man and a woman living together and loving one another as husband and wife. But, as Ms Ball rightly says, marriage requires respect by each party of the right of the other to choose whether or not to engage in any and if so what sexual activity.[62]I deliberately qualify what I have just said with the words ‘generally speaking’ because, although, generally speaking, a sexual relationship is implicit in any marriage, it is not, of course, a vital ingredient. Nor does its absence invalidate a marriage. After all, the law has always recognised that a man may take a woman as his wife tanquam soror vel tanquam frater, as our ancestors would have put it applying the canonist’s maxim: see, for example, Sir John Nicholl in Brown v Brown (1828) 1 Hagg Ecc 523 at page 524, Sir Cresswell Cresswell in W v H (1861) 2 Sw&T 240 at page 244 and, for a more modern example, Morgan v Morgan (orse Ransom) [1959] P 92. As Sir William Scott said in Briggs v Morgan (1820) 3 Phill Ecc 325 at pages 331-332, it may be that a marriage “at a time of life when the passions are subdued” is “contracted only for comfortable society”, the spouses being “fairly left to just reflection and more placid gratifications.”[63]The law was very clearly stated by Sir J P Wilde in A v B (1868) LR 1 P&D 559 at page 562:
“For although it has been said that the procreation of children is one main object of marriage, yet it cannot be doubted that marriages between persons so advanced in years as effectually and certainly to defeat that object, are perfectly legal and binding. The truth is, consensus non concubitus facit matrimonium.”
In Baxter v Baxter [1948] AC 274 Viscount Jowitt LC quoted with approval at page 289 a passage in Lord Stair’s Institutions:
“It seems to me that the true view of the matter is expressed in Lord Stair’s Institutions, 1681 ed, book I, tit 4, para 6. That learned and distinguished author put the matter thus: “So then, it is not the consent of marriage as it relateth to the procreation of children that is requisite; for it may consist, though the woman be far beyond that date; but it is the consent, whereby ariseth that conjugal society, which may have the conjunction of bodies as well as of minds, as the general end of the institution of marriage, is the solace and satisfaction of man.”
I am content to adopt these words as my own.”[64]The Official Solicitor wishes to make plain that although in his view the test for capacity to marry should include consideration of a person’s capacity to engage in sexual relations, in saying this he does not presume that sexual relations will necessarily form part of a marriage contract. What he does say, and I agree, is that the marriage contract must be understood as providing the parties to the marriage with the right to choose whether to engage in sexual activity within that union.[65]How then is one to assess whether someone has the capacity to consent to sexual relations, the ability to choose whether or not to engage in sexual activity?[66]I can start with the well established principle that at common law it was rape if the woman’s ‘consent’ to sexual intercourse was vitiated by a mistake as to the nature and character of the act itself: R v Dee (1884) 15 Cox CC 579, The Queen v Clarence (1888) 22 QBD 23, esp per Stephen J at pages 43-44, Papadimitropoulos v The Queen (1957) 98 CLR 249, esp at pages 260-261, R v Linekar [1995] QB 250 and R v Cort [2003] EWCA Crim 2149, [2004] QB 388, not affected on this point by R v Dica [2004] EWCA Crim 1103, [2004] QB 1257. As the High Court of Australia said in Papadimitropoulos v The Queen (1957) 98 CLR 249 at page 260, the essential inquiry is:
“whether the consent is no consent because it is not directed to the nature and character of the act.”
[67]It is hardly surprising that the law treats this as being the relevant question. As I pointed out in Sheffield City Council v E [2004] EWHC 2808 (Fam), [2005] Fam 326, at para [19]:
“The general rule of English law, whatever the context, is that the test of capacity is the ability (whether or not one chooses to exercise it) to understand the nature and quality of the transaction.”
[68]The classic cases where there was held to be no consent on this ground are The Queen v William Case (1850) 1 Den 580 (fourteen year old girl persuaded by defendant that sexual intercourse was a surgical operation), The Queen v Flattery (1877) 2 QBD 410 (nineteen year old girl persuaded by defendant that sexual intercourse was a surgical operation) and The King v Williams [1923] 1 KB 340 (sixteen year old girl persuaded by defendant that sexual intercourse was a procedure to improve her singing voice).[69]Now these were all cases where a fraud was practised on the complainant, and it is often assumed that in such cases it is the fraud which vitiates the consent. But the essential element is the mistake, not the fraud. As Glanville Williams put it in his Textbook of Criminal Law (ed 2) at para 25.5, referring to Stephen J’s formulation in Clarence, “Stephen J’s rule does something to nail down the doctrine of vitiation of consent. If it be granted, it must necessarily govern spontaneous mistake as well as mistake produced by fraud”. This was recognised by the High Court of Australia in Papadimitropoulos v The Queen (1957) 98 CLR 249 at page 260:
“In considering whether an apparent consent is unreal it is the mistake or misapprehension that makes it so. It is not the fraud producing the mistake which is material so much as the mistake itself.”
The Court of Appeal, Criminal Division, made the same point in R v Linekar [1995] QB 250 at page 255:
“it is the non-consent to sexual intercourse rather than the fraud of the doctor or choir master that makes the offence rape.”
[70]In short, an apparent ‘consent’ to sexual intercourse will be vitiated, and the defendant guilty of rape, if the woman does not know that the act is one of sexual intercourse. That may be, as in the cases I have referred to, because she has been induced by some fraud to believe it is something else. It may be because she is simply too young to understand what sexual intercourse is: R v Howard [1965] 3 All ER 684. Or it may be because she lacks the mental capacity to understand what sexual intercourse is. It is, of course, with this class of case that I am here concerned.[71]In R v Morgan [1970] VR 337, the Supreme Court of Victoria held at page 341 that for a woman to be found to lack capacity to consent to intercourse:
“it must be proved that she has not sufficient knowledge or understanding to comprehend (a) that what is proposed to be done is the physical fact of penetration of her body by the male organ or, if that is not proved, (b) that the act of penetration proposed is one of sexual connection as distinct from an act of a totally different character.”
The court when on to say at page 342:
“That knowledge or understanding need not, of course, be a complete or sophisticated one. It is enough that she has sufficient “rudimentary knowledge” of what the act comprises and of its character to enable her to decide whether to give or withhold consent.”
[72]In that case the trial judge had directed the jury (see at page 340) that if a woman was to be capable of consent she had to have knowledge and understanding of every one of a number of “rudimentary concepts” he identified: that is, knowledge and understanding of the concept of virginity and knowledge and understanding that intercourse may cause pregnancy, that there is a difference in quality between the act of intercourse and other acts of intimacy, that the act of intercourse might be regarded as “naughty” and that penetration is likely to produce a rupture of the hymen. The Supreme Court rejected this view, making it clear at page 341 that:
“capacity to consent does not involve, as a matter of law, knowledge or understanding of any of the ingredients referred to as “rudimentary concepts” by the learned trial judge.”
All that was required was, as we have seen, “sufficient “rudimentary knowledge” of what the act comprises and of its character to enable her to decide whether to give or withhold consent.”[73]As Glanville Williams rightly observed (para 25.12 fn 2) this formulation is greatly superior – and, I would venture to add, much more useful – than anything to be found in the by now very elderly English cases on the subject: R v Richard Fletcher (1859) Bell 63, R v Fletcher (1866) LR 1 CCR 39, R v Pressy (1867) 10 Cox 635 and R v Barratt (1873) LR 2 CCR 81. These cases were not particularly illuminating and were in any event disfigured by acceptance of the doctrine, rightly condemned by Palles CB in R v Dee (1884) 15 Cox CC 579 at page 594, that a mentally disordered person can legally consent to sexual activity if their “animal instincts” take over.[74]In my judgment, this decision of the Supreme Court of Victoria stands as an essentially correct summary and statement of the common law rule. The question is whether the woman (or man) lacks the capacity to understand the nature and character of the act. Crucially, the question is whether she (or he) lacks the capacity to understand the sexual nature of the act. Her knowledge and understanding need not be complete or sophisticated. It is enough that she has sufficient rudimentary knowledge of what the act comprises and of its sexual character to enable her to decide whether to give or withhold consent.[75]Glanville Williams commented at para 25.12 that this is a low requirement of understanding, but, as he continued:
“there are two reasons for making the requirement low. First, this is necessary to prevent men who have intercourse with willing but sexually innocent girls from being convicted of rape. Secondly, it is necessary in order not to forbid sexual expression to women of low intelligence. Every offence has the effect of diminishing the liberty of the defendant, but when a person is convicted on account of a consensual activity the practical result is to restrict not only his liberty but that of the person with whom he acts.”
In the present context I am concerned not so much with the first as with the second of these two considerations. I entirely agree with Glanville Williams’s sentiments on this point. They accord, after all, with a very similar observation I made in Sheffield City Council v E [2004] EWHC 2808 (Fam), [2005] Fam 326, at para [144]:
“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.”
[76]So much for the common law. But as Ms Ball helpfully points out, the position, at least as far as the criminal law is concerned, has now to be considered in the light of the Sexual Offences Act 2003. It is to this that I accordingly now turn.[77]There are two groups of provisions in the 2003 Act which are relevant for present purposes: the first, those that define the offences of rape and kindred sexual offences (sections 1-4), the other, those that define what are described as “offences against persons with a mental disorder impeding choice” (sections 30-33). None of these offences, it is to be noted, as Ms Ball points out, is subject to the “marriage exception” which qualifies the offences referred to in sections 16-19, 25-26 and 38-41 of the Act: see sections 23, 28 and 43. In other words, these are all offences which can be committed notwithstanding that the participants are married at the time.[78]In relation to the first group of offences the absence of “consent” is an element of the offence: see, for example, sections 1(1)(b) and 2(1)(c). “Consent” for this purpose is defined by section 74:
“a person consents if he agrees by choice, and has the freedom and capacity to make that choice.”
There is no statutory definition of “capacity”. It would seem that the common law applies to determine whether someone has capacity for this purpose.[79]The second group of offences apply where (see, for example, sections 30(1)(c) and 31(1)(c)) someone is:
“unable to refuse because of or for a reason related to a mental disorder ” “Mental disorder” is defined for this purpose by section 79(6) as having the same meaning as in section 1 of the Mental Health Act 1983. More importantly for present purposes, the Act provides a definition of what is meant by being “unable to refuse”
. A person is “unable to refuse” (see section 30(2); essentially the same form of words is to be found in sections 31(2), 32(2) and 33(2)) 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 … ” “(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 … ”
[80]On one view this is merely a statutory codification of the common law, for the statutory reference to the “reasonably foreseeable consequences of what is being done” reflects the language of Wilde CJ in The Queen v William Case (1850) 1 Den 580 at page 582 identifying the question as being whether the complainant was “ignorant of the nature of the act … and of its possible consequences”. On the other hand, as is pointed out by the learned authors of Rook & Ward on Sexual Offences: Law and Practice (ed 3) at para 7.31, the statutory formulation is not necessarily identical in its effect to that in R v Morgan [1970] VR 337. They say:
“The better view is that, in order to protect those with a mental disorder, a person is to be treated as understanding the “nature” of the touching if they understand its sexual nature, as opposed to the fact that physical touching is taking place. This interpretation focuses on the complainant’s knowledge or understanding of the meaning or consequences of sexual relations, and so moves firmly away from the heavily criticised and old-fashioned view that a mentally disordered person can legally consent to sexual activity if their “animal instincts” take over.”
The authors then refer to R v Morgan before continuing:
“In Morgan, the court did not go so far as to rule that the complainant could only consent if she understood the potential physical consequences of the intercourse, such as pregnancy. However, in the context of the 2003 Act, we suggest that the phrase “reasonably foreseeable consequences” does refer to the complainant’s understanding that the sexual activity could have implications for his or her sexual health and, in the case of women, could lead to pregnancy.”
[81]There is no need for me to come to any concluded view on this, and it is better that I do not. In the final analysis I am concerned here with the question of capacity to enter into a marriage. I am not concerned with the finer points of what is meant by sections 74 and 30(2) of the 2003 Act. It is much better that they be left for resolution by the Crown Court or the Criminal Division of the Court of Appeal if and when they arise for decision on the specific facts of a particular case.[82]It suffices for present purposes to draw attention to the two formulations of capacity offered by the criminal law. The first is the common law test of capacity, seemingly preserved by section 74 of the 2003 Act: the capacity to choose, to decide whether to give or withhold consent, dependent upon the capacity to understand the nature and character of the act, crucially, the capacity to understand the sexual nature of the act. The other is the test stated in section 30(2) of the Act: the capacity to choose, dependent upon the capacity to understand the nature and reasonably foreseeable consequences of the act. It may be (I express no views on the point) that there is in the context of the criminal law some difference between these two tests. For present purposes, it seems to me, they come to very much the same thing.[83]Ms Ball submits with compelling force that the provisions of the 2003 Act to which I have referred highlight the need for the sexual aspect of the nature of marriage to be specifically addressed in any test or definition relating to capacity to marry. In the light, in particular, of the provisions of sections 30-37 of the Act it will, she says, now be necessary, when examining a person’s capacity to marry and their understanding of the nature of marriage, its duties and responsibilities, to include in that examination consideration of the person’s understanding of the nature or reasonably foreseeable consequences of sexual activity (and also, where relevant, consideration of their ability to communicate their choice as to whether to engage in such activity). To fail to incorporate this specific development in the criminal law into the test of capacity to marry in civil law would, she submits, be to disregard Parliament’s clear intention that an individual should not be placed in a position where they are unable to choose whether or not to engage in sexual activity. Moreover, she says, it would lead to an inconsistency of approach between the criminal law and the civil law.[84]I agree with Ms Ball, and essentially for the reasons she gives. Generally speaking, capacity to marry must include the capacity to consent to sexual relations. And the test of capacity to consent to sexual relations must for this purpose be the same in its essentials as that required by the criminal law. Therefore for present purposes the question comes to this. Does the person have sufficient knowledge and understanding of the nature and character – the sexual nature and character – of the act of sexual intercourse, and of the reasonably foreseeable consequences of sexual intercourse, to have the capacity to choose whether or not to engage in it, the capacity to decide whether to give or withhold consent to sexual intercourse (and, where relevant, to communicate their choice to their spouse)?[85]I should add just one observation. Questions of capacity are always ‘issue specific’: Sheffield City Council v E [2004] EWHC 2808 (Fam), [2005] Fam 326. The question of whether someone has capacity to marry is not the same as the question whether that person has capacity to consent to sexual relations. The two questions have to be considered separately. That said, since a sexual relationship is, generally speaking, implicit in any marriage, it must follow that, generally speaking, someone who lacks the capacity to consent to sexual relations will for that very reason necessarily lack the capacity to marry. The converse, of course, is not necessarily true. Someone may have the capacity to consent to sexual relations whilst lacking the capacity to marry.[86]As we have seen, amongst the questions on which Dr Land was asked to advise in this case was whether MAB has the capacity to consent to sexual relations. In responding to that question Dr Land treated the model set out in Re MB (Medical Treatment) [1997] 2 FLR 426 as providing what he called “an appropriate framework”. I do not in any way criticise him for doing so, because his letter of instructions contained no guidance for him on the point. Applying the approach in Re MB (Medical Treatment) [1997] 2 FLR 426, Dr Land asked himself what information might be relevant to making a decision about embarking on sexual activity. His answer was:
“Such information might include basic knowledge about the risks of pregnancy, sexually transmitted diseases; some understanding of what is involved in sexual activity; and an understanding of the nature of the relationship they have with the other party.”
Applying that approach, Dr Land’s conclusion, as we have seen, was that MAB lacks the capacity to consent to sexual relations, not having, in his view, even a rudimentary understanding of the practical issues of human reproduction.[87]Ms Ball has helpfully raised the question whether the test in Re MB (Medical Treatment) [1997] 2 FLR 426 is relevant in this context.[88]This is an issue which I considered in Sheffield City Council v E [2004] EWHC 2808 (Fam), [2005] Fam 326, where the context was the closely related issue of capacity to marry. Having observed that the test in Re MB (Medical Treatment) [1997] 2 FLR 426 has been applied in situations where the question is whether X has the capacity to litigate or the capacity to consent (or refuse consent) to medical treatment, I continued at para [135]:
“But there is, in my judgment, an important – in truth a crucial – distinction between, on the one hand, the capacity to litigate or to consent (or refuse consent) to medical treatment and, on the other hand, the capacity to marry. And it is a distinction which makes this analysis much less important in practical terms in the case of capacity to marry than in the two other situations. The distinction, as I have already said, is that marriage is not something on which the average person needs to obtain either expert advice or expert assistance. Litigation and medical treatment, in contrast, are both activities where the average layman needs, and is accustomed to obtaining from an appropriately qualified professional person, expert information, advice and assistance.”
I went on at para [136]:
“Where the issues are as complex as typically they will be if the question is whether someone has the capacity to litigate or has the capacity to consent (or refuse consent) to medical treatment, then it is appropriate and helpful to approach the issue by reference to the analyses in In re C (Adult: Refusal of Treatment) [1994] 1 WLR 290 and Re MB (Medical Treatment) [1997] 2 FLR 426. But I doubt whether such a refined analysis is either necessary or indeed particularly helpful where the issue is as simple as the question whether someone has the capacity to marry … The question remains as it was in 1881: is E capable of understanding the nature of the contract of marriage? There is no need, as it seems to me, to over-analyse that simple question by bringing to bear on it the analyses in In re C (Adult: Refusal of Treatment) [1994] 1 WLR 290 and Re MB (Medical Treatment) [1997] 2 FLR 426. I do not say that these analyses are irrelevant; they are not. I merely say that in this particular context it is unlikely to be either necessary or even particularly helpful to refer to them.”
[89]Ms Ball submits that this approach would seem to apply equally in respect of the present question. The proposed inclusion of a sexual element in the test of capacity should not add to the complexity of the understanding required, for the ability to choose whether to engage in sexual relations is not one which is beyond that of the person of average intelligence. Nor does it require any degree of expert advice or any expert participation to aid understanding. Application of what she calls the more complicated test in Re MB would thus, she says, not only be inapposite to the sexual aspect of the test for capacity to marry. It would be illogical to have two different tests for what should essentially be one area of consideration, namely, does the person understand the nature of the marriage contract?[90]I agree with Ms Ball’s submissions. The observations in Sheffield City Council v E [2004] EWHC 2808 (Fam), [2005] Fam 326, to which I have just referred seem to me to be equally apposite whether the issue is capacity to consent to sexual relations or capacity to marry. In neither context is the analysis in Re MB (Medical Treatment) [1997] 2 FLR 426 irrelevant, but in neither context is it likely to be either necessary or even particularly helpful to refer to it.[91]I do not want to be misunderstood. I have absolutely no quarrel with the substance of the approach which Dr Land adopted. The matters which he considered in the passage from his report which I have quoted in paragraph [86] above are precisely the kind of matters which I would expect to be considered in this context.[92]I should add for the avoidance of doubt that nothing in the Mental Capacity Act 2005 bears on the issues I have had to consider, either in this case or in Sheffield City Council v E [2004] EWHC 2808 (Fam), [2005] Fam 326. Section 27(1) of that Act provides, so far as material for present purposes, that: “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”.[93]The final matter I must deal with relates to the seizure of the parents’ passports.[94]The parents are justifiably angry that, although the order Judge Bevington made on 24 March 2005 was quite clear that only MAB’s passport was to be seized, when they came to enforce the tipstaff order that night the police took the parents’ passports as well, and that it was not until many months later – indeed, not until 21 November 2005 – that their passports were returned to them. I can understand their anger and I was very concerned to hear that this had happened.[95]I have examined the court file and the relevant correspondence and have been able to piece together what happened. It does not, I regret to say, reflect well on the court. For that the parents are entitled to an apology. They are also entitled to an explanation of what happened and an assurance that, so far as possible, steps will be taken to ensure that it does not happen again. This judgment will be made public and I will ensure that this part of it is brought to the attention of the President of the Family Division.[96]The parents’ passports were taken from them on the night of 24/25 March 2005 by the Z Constabulary, acting on behalf of the tipstaff. The passports were returned to them by the tipstaff on 21 November 2005. There is a substantial amount of correspondence relating to the matter, but I need not go though it in detail, for the sequence of events is clear enough.[97]Investigation shows that things went wrong at four different stages: i) Although, as I have said, Judge Bevington’s order was clear that only MAB’s passport was to be seized, the separate passport order drawn up by the court – the document (in Form 3A) which, together with the direction to the tipstaff signed by the judge (Form 3B), is the authority to the tipstaff and to police officers acting on his behalf to carry out the court’s directions – erroneously directed the tipstaff to seize not merely MAB’s passport but also the parents’ passports. That was a clear error. It is an error for which the court bears sole responsibility, for it is the court which draws passport and other tipstaff orders and the practice is not to supply copies of them to the parties. This error by the court was the cause, the causa sine qua non, of everything that followed. ii) On 24 May 2005 the parent’s solicitors issued an application for an order that the local authority be required to return the parents’ passports “seized by the authority of” the local authority. That application came before another Circuit Judge on 26 May 2005, who made an order that the Z Constabulary forthwith return the parents’ passports to them. Unfortunately both the application and the order were misconceived. The parents’ passports, which had been in the constructive custody of the tipstaff ever since they were seized by the police, had in fact been in his actual custody from a very early stage. (An attendance note of a conversation with the tipstaff on 1 April 2005 indicates that he had by then received the passports.) The order should accordingly have been addressed to the tipstaff, directing the tipstaff to return the passports to the parents. This was in fact pointed out by the tipstaff in an e-mail to the local authority on 31 May 2005. The point, if I may explain, is simply this. The original direction made by Judge Bevington on 24 March 2005 in Form 3B required the tipstaff “to keep [the passports] safely, until further direction of the court”. The tipstaff was accordingly obliged to keep the passports until such time as he received a direction of the court. The tipstaff was entitled – indeed obliged – to say that without a direction addressed to him his obligation was to comply with the terms of Judge Bevington’s order. As an officer of the court, the tipstaff is entitled to the protection of a direction – an order – before he parts with any passport which he has seized in accordance with a previous direction he has been given by the court. The order dated 26 May 2005 was useless for this purpose; it merely beat the air. iii) The e-mail which the tipstaff had sent to the local authority on 31 May 2005 was not brought to the attention of the parents’ legal advisers. On 16 August 2005 they telephoned the tipstaff’s office and were told – quite correctly – that the parents’ passports could not be released without an order. The same day they sent the tipstaff a copy of the order dated 26 May 2005. On 30 August 2005 the tipstaff informed them – again quite correctly – that he could not release the passports without an amended order directed to him rather than to the Z Constabulary. It is most unfortunate that the local authority did not see fit to tell the parents’ solicitors what they had learnt from the tipstaff on 31 May 2005. As can be seen this omission occasioned a further three months delay. iv) On 12 September 2005 Coleridge J made an order directing the tipstaff to release the parents’ passports to their legal representative or duly appointed agent. Unfortunately, that direction was included in a lengthy order, some of the details of which took a little time to be agreed between the various parties’ representatives. It was only on 9 November 2005 that the order was finally sealed and only on 16 November 2005 that a sealed copy sent to them by the court was received by the parents’ solicitors.[98]With the exception of the tipstaff – against whom, in my judgment, no criticism can properly be levelled – there is hardly anyone who comes very well out of this saga of muddle, error and confusion. The primary blame, as I have already acknowledged, lies with the court. But others contributed to the excessive time it took to remedy an error which, if its precise cause had not then been exposed, had seemingly been identified as early as 29 March 2005 when the parents’ solicitors wrote to the local authority complaining about the seizure of their clients’ passports.[99]For the future I identify three precautions that can be taken to avoid a repetition of what happened here: i) The court should check more carefully than seems to have been done here to ensure that passport and other tipstaff orders are accurately drawn and in a form which accords precisely with the judge’s order. ii) Those involved should ensure that any order for the return of a passport seized by the tipstaff is expressed as being directed to the tipstaff and not to anyone else. iii) If an order for the return of a passport is made it should be drawn as a separate order which can immediately be sealed without waiting for the finalisation of any other orders or directions the court has made.[100]There remains the question of costs. Mr Whitfield submits that there should be no order as to costs. Ms Sood submits that the local authority should be ordered to pay her clients’ costs. Neither suggested form of order will, in my judgment, meet the justice of the case.[101]As matters stood in March 2005 the local authority was fully justified in commencing proceedings. Indeed, it might justifiably have been the subject of criticism if it had not done so and if MAB had in fact been taken to Pakistan. Moreover, it was not until September 2005 that MAB’s father acknowledged that his son did not have capacity to marry. On the other hand, by November 2005 – and indeed before the final hearing began – the parents had indicated that they would be prepared to offer suitable undertakings. To a significant extent the reason why the proceedings had to continue, and in the event take up the best part of three days in court, was because the local authority was pressing for the injunctions and for the relief in relation to MAB’s passport which in the event I refused. But for the local authority’s stance the final hearing would probably have been very much shorter. I do not criticise the local authority. I merely set out the facts as I find them. In all the circumstances I think that justice will best be done if I direct that the local authority pays two-thirds of the parents’ costs of the final hearing. In relation to the costs incurred prior to the final hearing I propose to make no order.[102]I propose therefore to make an order in the following terms:
“UPON the First and Second Defendants undertaking through Counsel that: (1) they will not cause or permit the Third Defendant to undergo any civil or religious ceremony of betrothal or marriage whatsoever; (2) they will not take the Third Defendant out of England Wales and Scotland; and (3) if they wish to apply to the court to vary or be released from these undertakings they will comply with the procedures set out in the schedule hereto IT IS DECLARED that: 1 The Third Defendant does not have the capacity to marry. 2 Any purported marriage by the Third Defendant whether celebrated inside or outside England and Wales will not be recognised in English law. AND IT IS ORDERED that: 3 The First and Second Defendants having given the said undertakings the Tipstaff shall forthwith return the passport of the Third Defendant to the First and Second Defendants and the order of 24 March 2005 providing for the holding of the said passport by the Tipstaff is hereby discharged. 4 Permission is granted to any of the parties to disclose to (a) the Foreign and Commonwealth Office (b) the Home Office (c) the Registrar General (d) the British High Commission in Pakistan (e) all treating professionals within the multidisciplinary team caring for the Third Defendant (namely Social Services professionals and [omitted]) (f) health professionals (namely the psychiatrist, general practitioner, occupational therapist, community nurse, psychologist, speech and language therapist) (g) [the local authority’s] Complaints Department copies of (i) the originating summons and Part 8 claim form herein; (ii) the report of Dr Land herein dated 27 July 2005 and the statement of Dr C herein dated 21 October 2005; (iii) the judgment herein of Mr Justice Munby dated 13 February 2006; and (iv) this order. 5 The parties are to be at liberty to apply to the court to vary or discharge the undertakings declarations and orders herein upon 28 days written notice to the other parties and to the Official Solicitor. 6 There be a detailed assessment of the costs of the First, Second and Third Defendants. 7 The Claimant do pay two-thirds of the First and Second Defendants’ costs of the hearing before Mr Justice Munby on 28-30 November 2005 such costs if not agreed to be the subject of a detailed assessment on the standard basis. 8 Except as aforesaid there be no order as to costs. SCHEDULE (Undertaking of the First and Second Defendants) In the event that either the First and/or the Second Defendants wish to apply to vary or be released from their undertakings they will before applying to the court and at the same time as they give notice in accordance with paragraph 5 above first supply the Claimant and the Official Solicitor with copies of the evidence of a consultant psychiatrist and all the other evidence upon which they intend to rely in support of the application including if they wish to take the Third Defendant out of England Wales and Scotland: (i) written confirmation from the Third Defendant’s treating psychiatrist of his fitness to travel by the means of transport proposed; and (ii) written agreement from any airline with which it is intended that the Third Defendant will travel that he may travel with that airline.”
IT IS DECLARED that: AND IT IS ORDERED that: (a) the Foreign and Commonwealth Office (b) the Home Office (c) the Registrar General (d) the British High Commission in Pakistan (e) all treating professionals within the multidisciplinary team caring for the Third Defendant (namely Social Services professionals and [omitted]) (f) health professionals (namely the psychiatrist, general practitioner, occupational therapist, community nurse, psychologist, speech and language therapist) (g) [the local authority’s] Complaints Department (i) the originating summons and Part 8 claim form herein; (ii) the report of Dr Land herein dated 27 July 2005 and the statement of Dr C herein dated 21 October 2005; (iii) the judgment herein of Mr Justice Munby dated 13 February 2006; and (iv) this order. SCHEDULE

Cited in 33 later judgments

and 24 more of the most senior