London Borough of Tower Hamlets v NB

JurisdictionEngland & Wales
CourtCourt of Protection
JudgeMr Justice Hayden
Judgment Date07 May 2019
Neutral Citation[2019] EWCOP 17
Docket NumberCase No: COP 13321617

[2019] EWCOP 17

IN THE COURT OF PROTECTION

IN THE MATTER OF THE MENTAL CAPACITY ACT 2005

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

THE HONOURABLE Mr Justice Hayden

VICE PRESIDENT OF THE COURT OF PROTECTION

Case No: COP 13321617

Between:
London Borough of Tower Hamlets
Applicant
and
NB
1 st Respondent

and

AU
2 nd Respondent

Mr Walsh (instructed by London Borough of Tower Hamlets) for the Applicant

Mr Bagchi QC, Ms Anna Lavelle (instructed by Official Solicitor) for the 2 nd Respondent

Hearing date: 7 May 2019

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

THE HONOURABLE Mr Justice Hayden

Mr Justice Hayden

This judgment was delivered in public.

Mr Justice Hayden
1

This case last came before me on the 29 March 2019. The proceedings concern NB. She came to live in the UK in 1985 and married her husband in 1992. The marriage was contracted abroad. When NB first came to live in the United Kingdom she did so without her husband (AU). There was a period in which the couple were separated whilst AU made an application for permission to enter the UK, but in May 1996 NB travelled abroad to return to live with her husband. Following a series of applications to the Home Office throughout 1997 the couple came, eventually, to live together here in London. They lived with NB's parents. A daughter was born a year later (1998).

2

Mr Bagchi QC, who appears on NB's behalf, instructed by the Official Solicitor, has taken me through some of the records in this case which illuminate something of the evolution of the couple's relationship. Of particular note is a letter to the Immigration Appeals department, dated March 1996, in which a clinical psychologist, Ms Suzanne Wilson, states:

‘I believe NB's experience of AU's absence is stressful due to her attachment and affection towards him which has developed during their periods together in [Country C]. In her daily life NB consistently demonstrates her intense attachment to her husband. She often says his name with affection. She repeatedly asks where he is and pleads that he should be with her. [NB] appears to understand the lasting nature of marriage, including that of marriage as a committed sexual bond between a man and a woman. It is my view that [NB] would be very unlikely to have such an affectionate attachment to her husband if this were not on a mutual basis and I therefore believe that her attachment can be taken as evidence of AU's positive attention and caring towards her when they are together’.

3

NB suffers from what is referred to as ‘general global learning difficulty’ and ‘an impairment’ in relation to her facility to communicate with others. She has been, at least historically, assisted by the use of Makaton sign language and her sentences are limited.

4

In consequence of a number of remarks NB made to her dentist, in October 2014, a safeguarding enquiry was instigated. There is no record of what it was that she said to the dentist, or at least none which has been presented to this court, but it is clear that it had something to do with the quality of her relationship with her husband and it was such as to give rise to a concern that she might be vulnerable to sexual exploitation. Very quickly, an education programme was put in place focusing on sex education, relationships, contraception, sexually transmitted diseases as well as more general issues relating to NB's health.

5

Following that work a further assessment was undertaken by a clinical psychologist to consider NB's range of understanding on those key issues. The conclusions of the assessment were that NB was unable to demonstrate an appreciation of why people got married, separated or divorced. It was concluded that she lacked the mental capacity to marry. In respect of her capacity to consent to sexual relations it was considered that she lacked an understanding of the association between sexual intercourse and pregnancy. Inevitably, it followed, that she could not link various forms of contraception to the concept of averting pregnancy. She did not have the capacity to retain information in relation to these issues. It was also considered that she was unable to communicate the concept of refusal of sex to her husband. These different facets of the test reflect the development of the applicable case law. See: X City Council v MB, NM and MAB [2006] 2 FLR 968; CH v A Metropolitan Council [2017] EWCOP 12; Re RS, (Forced Marriage Protection Order) [2015] EWHC 3534 (Fam) (03 December 2015).

6

There is also evidence that indicates that NB very much enjoys the status of marriage, is affectionate to her husband and, on occasion, initiates sexual relations. This appears consistent with Ms Wilson's observations as long ago as 1996. The primary issue before the Court is whether NB truly has the capacity to consent to sexual relations. On the 29 March I indicated that I wanted the matter to be fully argued because I was concerned about the arrangements that were being made (see para 8 below).

7

On 29 March NB was represented by Mr Bagchi via the Official Solicitor and the Local Authority was represented by Mr Walsh....

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4 cases
  • London Borough of Tower Hamlets v NB
    • United Kingdom
    • Court of Protection
    • 16 July 2019
    ...the case for full argument, listed to be heard on the 7 th May 2019. Following that hearing I delivered an interim judgment, reported [2019] EWCOP 17. The Court and the parties became aware that the Court of Appeal was considering issues relating to capacity to consent to sexual relations i......
  • A Local Authority v JB (by his litigation friend, the Official Solicitor)
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 11 June 2020
    ...Shortly before the appeal was heard, a judgment was delivered in another case – London Borough of Tower Hamlets v NB and another [2019] EWCOP 17 – in which Hayden J, Vice-President of the Court of Protection, raised concerns about the applicability of the test propounded by this Court in IM......
  • B (by her litigation friend, the Official Solicitor) v A Local Authority
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 11 June 2019
    ...in other cases is, however, a live matter as it is currently under consideration by Hayden J in London Borough of Tower Hamlets v NB [2019] EWCOP 17. In that case the judge observed in his interim judgment (at [12]) that there was only one individual with whom it was really contemplated tha......
  • Rosa Monckton v Simon Mottram
    • United Kingdom
    • Court of Protection
    • 25 June 2019
    ...Council [2017] EWCOP 12; B (Capacity: Social Media: Care and Contact) [2019] EWCOP 3; London Borough of Tower Hamlets v NB and AU [2019] EWCOP 17. 52 The Court of Protection Handbook (Ruck-Keene et al – 2 nd ed 2017) emphasises that whatever the phraseology of the Code of Practice, each cas......

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