(Court of Appeal, Richards, McFarlane, Lewison LJJ, 1 May 2013)
The 48-year-old woman suffered from mild learning difficulties and had an IQ of somewhere between 66 and 69. She formed a relationship with a man 11 years ago who was subsequently convicted of serious sexual offences. While he was serving a 13-year sentence of imprisonment the couple married. Prior to his release the local authority issued proceedings in the Court of Protection in anticipation that they would wish to cohabit following the man's release on licence.
In the Court of Protection, Hedley J determined that the woman lacked capacity to decide whether to cohabit with the husband because she was unable to understand the risk he posed to her and to weigh that risk in making a decision. It was in the woman's best interests to resume cohabitation with her husband but under a local authority scheme of monitoring and support. The Official Solicitor appealed on the woman's behalf.
The appeal was allowed and the finding that the woman lacked capacity to decide whether to live with her husband was set aside.
Evidence that the woman lacked capacity in this respect was lacking, particularly where she had capacity to marry but not to decide to cohabit with her husband. That finding required clear and cogent evidence and in its absence was not open to the judge.
While it was understandable that those involved with the woman viewed it as extremely unwise for her to cohabit with her husband, adult autonomy was such that people were free to make unwise decisions, provided they had the capacity to decide.