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Kara Swift
Kara Swift
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CAPACITY: Sandwell Metropolitan Borough Council v RG, GG, SK and SKG [2013] EWHC 2373 (COP)

Date:18 OCT 2013
Law Reporter

(Court of Protection, Holman J, 4 July 2013)

The 38-year-old man had suffered with learning disabilities, low intelligence, and challenging behaviour from an early age. The man's father had moved his family to England from the Punjab shortly after the man's birth, but retained property there and frequently returned to India for visits. The man's father later died of a sudden heart attack in England. Prior to his death, the man's father and the family of a lame woman in her late-twenties had arranged a marriage between his son and their daughter, which took place in India in March 2009. There was a view that the marriage was arranged because the two may otherwise have found it difficult to marry, due to their respective mental and physical disabilities. Despite not being aware of the man's disabilities until the wedding itself, and reacting badly on discovering them as a result, the woman later admitted to caring about and falling in love with the man. She travelled to England herself in March 2010 following the man's earlier return to the country, and visited him regularly in the accommodation provided and staffed for him by the local authority.

The woman said, and the judge accepted, that the marriage was consummated on the night of the wedding, and she and the man had had sexual relations a few times following this. However, a consultant psychiatrist made it clear that the man had no understanding of sex whatsoever, and, accordingly, lacked the capacity to consent to sexual touching. The woman therefore accepted a condition of contact not to touch the man sexually or intimate to him that she desired sexual relations, at the risk of violating s 30 of the Sexual Offences Act 2003. The judge's final order included a declaration that the man lacked capacity to consent to sexual relations.

The judge declared that the man also lacked the capacity to consent to or contract a marriage and, under English law, had lacked the same capacity at the time of his own marriage. Therefore, in terms of the marriage itself (which was recognised in England and Wales), there was the question of whether or not it should be annulled in the man's best interests. There was a view from the local authority that it would not only be in the man's best interests for the marriage to be annulled, but it would also be a matter of policy to do so. The Official Solicitor could not identify any benefits to having the man's marriage annulled. It was left to the Court of Protection to make the decision in the man's best interests, under s1(5) of the Mental Capacity Act 2005. The judge also applied sub-sections (2), (3), (4), (6), and (11) of s4 of the same Act to his decision.

Despite having no comprehension of marriage, the man reacted positively and with pleasure to visits from the woman, and had been heard to use words such as ‘marriage', ‘wife', and ‘marry' in connection with her.  Any notions of divorce or separation put to him were reacted to badly by the man, and the judge saw that the man and the woman clearly wanted to remain married to one another. Acting in the man's best interests, he therefore excluded from the otherwise agreed order any sections which provided for the Official Solicitor to present a petition for the annulment of the marriage, and made orders by consent in relation to the man in all other respects.