City of Westminster Social and Community Services Department v C and another
| Jurisdiction | England & Wales |
| Judgment Date | 2008 |
| Date | 2008 |
| Court | Court of Appeal (Civil Division) |
Marriage – Foreign marriage – Validity – Marriage in Bangladesh between British national and Bangladeshi national – British national lacking capacity in English law to marry – Declaration – Whether open to judge to make declaration that marriage invalid under Enlish law – Whether judge should have made declaration that marriage not recognised by English law – Matrimonial Causes Act 1973, s 12 – Family Law Act 1986, ss 55–58.
In 1981, C was born in the United Kingdom to a family of Bangladeshi origin, who were British nationals domiciled and habitually resident in the United Kingdom. He suffered from severe impairment of intellectual functioning and autism. There was expert evidence to the effect that in no area of his development did he currently show the skills that were to be expected of an average three-year-old. In many areas he functioned substantially below that mark. He needed considerable support in all areas of his life and could not be left alone without risk. He was highly suggestible and vulnerable. He received home care five mornings a week before he attended a day centre. Additionally, he received a high level of respite care. The local authority had been involved in supporting and protecting him since he was four years of age. The local authority raised the issue of marriage with C’s parents in the autumn of 2006. There was no agreement that C could not and should not ever marry. Accordingly, on 23 April 2007 the authority, considering that C did not have the mental capacity to marry, applied under the inherent jurisdiction of the High Court for a declaration, inter alia, as to his capacity to marry.The response of the parents’ solicitor was to the effect that C had been married in a Muslim ceremony which had taken place by telephone in September 2006. The telephone link had been between C in the UK and a bride, K, chosen by his parents, who was in Bangladesh. It was agreed between the parties that the marriage was celebrated in Bangladesh. In December 2007, the judge made a declaration, inter alia, that the ’marriage’ of C and K in September 2006 was not valid under English law. He rejected the submission made on behalf of the parents that circumstances such as those which arose in the instant case had been expressly provided for in s 12(c) and (d) of the Matrimonial Causes Act 1973 (which was a consolidating Act, the relevant statutory provisions
having first emerged in the Nullity of Marriages Act 1971), and that the marriage was, accordingly, voidable, rather than void. Further, he refused recognition of the marriage on the ground of public policy. The parents appealed against the judge’s declaration that the marriage was invalid under English law. Sections 55 to 58 of the Family Law Act 1986, dealing with declarations of status, were not drawn to the attention of the judge.
Held– (1) The combined effect of s 12 of the 1973 Act and ss 55 to 58 of the 1986 Act was to ensure that the only route to a judicial conclusion that a marriage was void at its inception was a petition for nullity. In the instant case, the judge had erred in rejecting the parents’ submission based on s 12 of the 1973 Act. An alternative route, namely an application for a declaration, was plainly proscribed; Re Roberts, Roberts v Roberts [1978] 3 All ER 225 followed.
(2) Not every marriage valid according to the law of some friendly foreign state was entitled to recognition in the United Kingdom. In the instant case it was common ground that C lacked the capacity to marry in English law. Even having regard to the relaxations that had permitted marriage to be celebrated in a variety of places and by a variety of celebrants, it was simply inconceivable that C could be lawfully married in the United Kingdom. There was much expert evidence to suggest that the marriage which his parents had arranged for him was potentially highly injurious. He had not the capacity to understand the introduction of K into his life and that introduction would be likely to destroy his equilibrium or destabilise his emotional state. Were his parents to permit or encourage sexual intercourse between him and K, K would be guilty of the crime of rape under the provisions of the Sexual Offences Act 2003. Physical intimacy that stopped short of penetrative sex would constitute the crime of indecent assault under that statute. C’s parents, perhaps understandably, could not accept the court’s statutory and inherent powers to protect C. Their engineering of the telephonic marriage was potentially if not actually abusive of C. It was the duty of the court to protect C from that potential abuse. The refusal of recognition of the marriage was an essential foundation of that protection. The refusal of recognition in the instant case was justified even if not precedented. In place of the existing declaration a declaration would be made to the effect that the marriage between C and K, valid according to the law of Bangladesh, was not recognised as a valid marriage in the UK.
Accordingly, the appeal would be allowed in part.
Cases referred to in judgmentsApt v Apt [1947] 2 All ER 677, [1948] P 83, CA.
Brook v Brook (1861) 9 HL Cas 193, HL.
Cheni (otherwise Rodriguez) v Cheni [1962] 3 All ER 873, [1965] P 85, [1963] 2 WLR 17.
De Reneville (otherwise Sheridan) v De Reneville [1948] 1 All ER 56, [1948] P 100, CA.
F (adult: courts jurisdiction), Re[2000] 3 FCR 30, [2001] Fam 38, [2000] 3 WLR 1740, [2000] 2 FLR 512.
Indyka v Indyka [1967] 2 All ER 689, [1969] 1 AC 33, [1967] 3 WLR 510, HL.
Lawrence v Lawrence [1985] 2 All ER 733, [1985] Fam 106, [1985] 3 WLR 125, [1985] FLR 1097, CA; affg [1985] 1 All ER 506, [1985] Fam 106, [1985] 2 WLR 86, [1984] FLR 949.
Local Authority X v MM & KM[2007] EWHC 2003 (Fam).
Perrini v Perrini [1979] 2 All ER 323, [1979] Fam 84, [1979] 2 WLR 472.
PS (incapacitated or vulnerable adult), Re[2007] EWHC 623 (Fam), [2007] 2 FLR 1083.
Pugh v Pugh [1951] 2 All ER 680, [1951] P 482.
Roberts, Re, Roberts v Roberts [1978] 3 All ER 225, [1978] 1 WLR 653, CA.
Sheffield City Council v E[2004] EWHC 2808 (Fam), [2005] Fam 326, [2005] 2 WLR 953.
Sottomayor v De Barros (1877) 2 PD 81; on appeal (1877) 3 PD 1, [1874–80] All ER Rep 94, 47 LJP 23, 37 LT 415, CA; further proceedings (1879) 5 PD 94, [1874–80] All ER Rep 97.
Vervaeke v Smith (Messina and A-G intervening) [1982] 2 All ER 144, [1983] 1 AC 145, [1982] 2 WLR 855, HL.
X City Council v MB[2006] EWHC 168 (Fam), [2007] 3 FCR 371, [2006] 2 FLR 968.
AppealThe parents of the child, C, appealed against the declaration of the judge that C’s marriage was invalid. The facts are set out in the judgment of Thorpe LJ.
Alison Ball QC and Andrew Bagchi for C.
Jan Luba QC and Stephen Knafler for C’s parents.
Alex Vardan QC for the local authority.
Thorpe LJ.[1] The family at the heart of this appeal are British nationals domiciled and habitually resident in this jurisdiction. However the family is of Bangladeshi origin and only IC was born in this country.
[2] IC was born on 11 October 1981 and is sadly handicapped. He suffers from severe impairment of intellectual functioning and autism. Expert evidence before the court is to the effect that in no area of his development does IC currently show the skills that are to be expected of an average three year old. Indeed in many areas he functions substantially below this mark. He needs very considerable support in all areas of his life and cannot be left alone without risk. He is highly suggestible and vulnerable. He receives home care five mornings a week before he attends a day centre. Additionally he receives a high level of respite care. The local authority has been involved in supporting and protecting him since he was four years of age.
[3] The role of marriage in the life of one so handicapped is inconceivable in our society. Furthermore as a matter of law marriage is precluded. IC lacks the fundamental capacity to marry. However the marriage is not precluded in Bangladesh.
[4] The City Council had raised the issue of marriage with IC’s parents in the autumn of 2006. There was clearly no agreement that IC could not and should not ever marry. Accordingly on 23 April 2007 the local authority applied under the inherent jurisdiction of the High Court for: ‘A declaration as to the capacity of IC to marry. The local authority does not consider that IC has the mental capacity to marry.’ The application also sought declarations in relation to IC’s circumcision.
[5] The court’s jurisdiction to prohibit the marriage of an incapacitated adult is not in question. However the response from IC’s parents solicitors contained in a letter of 2 May 2007 was to the effect that IC was married in a Muslim ceremony which took place by telephone on or about 26 August 2006. The telephone link was between IC in this jurisdiction and a bride, NK, chosen by his parents who was in Bangladesh. Later the date of the telephonic marriage was shifted to 3 September 2006.
[6] This development finds its reflection in an order made by Munby J on 22 November 2007. He settled the issues to be decided at a hearing fixed for 12–14 December 2007. The issues were set out in a schedule to the order and were as follows:
...‘1. Does IC have the mental capacity to consent to
a) marriage
b) sexual relations
c) circumcision?
2. Is IC lawfully married
a) in Sharia Law
b) in Bangladesh
c) in English civil law?
3. If IC is lawfully married either in Sharia Law or in Bangladesh, is that marriage recognised in English Law?
a) Does the “dual domicile” or “most real and substantial connection” principle apply?
b) What are the consequences of a finding that either applies?
c) Are any further proceedings necessary?
4. Does the Court have jurisdiction to prevent the family changing IC’s domicile or taking him to live in Bangladesh?
5. Should the court refuse as a matter of principle to exercise the best interests jurisdiction in this case?
6. What is the correct test/approach for establishing IC’s best interests?
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