London Borough of Tower Hamlets v NB
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hayden |
| Judgment Date | 16 July 2019 |
| Neutral Citation | [2019] EWCOP 27 |
| Court | Court of Protection |
| Docket Number | Case No: COP 13321617 |
| Date | 16 July 2019 |
[2019] EWCOP 27
IN THE COURT OF PROTECTION
IN THE MATTER OF THE MENTAL CAPACITY ACT 2005
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Hayden
Case No: COP 13321617
and
Mr Michael Walsh (instructed by London Borough of Tower Hamlets) for the Applicant
Mr Andrew Bagchi QC, Ms Anna Lavelle ( Mackintosh Law instructed by Official Solicitor) for the 2 nd Respondent
Hearing date: 7 th 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
This case first came before me on 11 th December 2018. The parties on that occasion were inviting me to make an order which purported to be ‘by consent’. I was not prepared to endorse the order and adjourned 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 in another case and all agreed that it was appropriate to await that judgment before determining this application.
On 11 th June 2019 the Court of Appeal delivered its judgment in B v A Local Authority [2019] EWCA Civ 913. A few days later Mr Bagchi QC and Ms Lavelle, instructed on behalf of the Official Solicitor, requested an opportunity to submit further written submissions addressing the framework surrounding capacity to consent. These submissions were received on 28 th June 2019. The Local Authority also filed supplemental submissions on 8 th July 2019.
Something of the background to these proceedings is set out in my interim judgment but it requires to be repeated and expanded here. 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).
Mr Bagchi has taken me through some of the records in this case which illuminate the evolution of the couple's relationship. Though some of this is now historical, it identifies NB's early attachment to and affection for her husband which continues to resonate in the more recent evidence. In a letter to the Immigration Appeals department, as long ago as March 1996, a clinical psychologist, Ms Suzanne Wilson, stated:
‘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’.
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 using the Makaton sign language. Her sentences are limited.
In consequence of what appears to have been a number of remarks made by NB 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, a 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.
Following this work, a further assessment was undertaken by a clinical psychologist to consider NB's range of understanding on those key issues. The conclusion of the assessment was 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. Additionally, she lacked the ability to appreciate the link between sexual intercourse and sexually transmitted disease. 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. That opinion appears to have been re-evaluated as further information came to light. 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).
I am bound to say that I do not consider that the papers filed in this case provide a clear picture of what has actually been happening in this family. Perhaps, given the incredibly sensitive nature of the issues involved, this is inevitable. There are however, a number of key factors which are, in my judgement, important to isolate:
i) NB's husband (AU) has, on his own account, abstained from sexual relations with his wife following the conclusions of the assessment in 2017. In a statement prepared by Laura Baker, dated 31 st August 2018, I am told the couple share a bedroom but sleep in single beds. NB uses betel nut which I am told is a stimulant and frequently causes her to wake through the night. AU's approach is to pacify his wife and support her. Inevitably his disrupted sleep pattern has led to tiredness. Though he expressed a need to take a break and there was some discussion about a package of support, AU did not take it up. Ms Baker illustrated examples of NB exhibiting challenging behaviours when she is being encouraged to do something she does not wish to. From this it is now extrapolated that ‘it is unlikely that NB is being forced in to a sexual relationship with her husband’;
ii) The advice given to AU appears to have been that any sexual activity with his wife would expose him to the risk of prosecution for serious sexual offences, including rape;
iii) AU told the social services that initially NB would seek to initiate sexual intercourse by leading him to the bedroom and laying naked on the bed. AU reported that she rarely does this now;
iv) Ms Baker includes the following in her statement ‘I have also spoken to NB's sisters… and met with her mother about the issues of capacity and sexual relationships… all family members feel that NB does have capacity to engage in sexual relationships and… would not be forced into something she did not wish to do.’ Ms Baker expresses her own conclusions in these terms:
‘This has been a rather complex matter which in my view is very finely balanced. It has been a rather difficult task in trying to reach a balance between NB's lack of capacity and ensuring not to breach her human rights more than is necessary in order to safeguard her…
From a human rights perspective we have sought to ensure that any action taken by the local authority is both proportionate and necessary. In doing so we have considered all the options and sought to educate NB around marriage and sexual intercourse. We have also explored the least restrictive options; hence why NB has continued to reside with her husband and daughter… given that they have been married for twenty-five years and NB has a very clear attachment to her husband’
The Local Authority's application was now made as long ago as 5 th October 2018. The Official Solicitor was invited to act as NB's litigation friend on the same day. On 12 th October 2018, HHJ Hilder allocated the proceedings to a Tier 3 judge, that is to say a judge of the High Court. Legal aid was granted to NB on 9 th November 2018. On 11 th December 2018 AU was joined as a party and a wide-ranging assessment of NB's mental capacity, across a number of spheres of decision making, was undertaken by Dr Lisa Rippon, consultant psychiatrist. I highlight the following passages from her report dated, 6th March 2019:
‘……capacity to consent to sex remains act-specific and requires an understanding and awareness of i) the mechanics of the act; ii) that there are health risks involved, particularly the acquisition of sexually transmitted and sexually transmissible infections; iii) that sex between a man and a woman may result in the woman becoming pregnant.
To summarise, Dr Rippon identified that NB lacked capacity in the following areas of functioning:
i. to conduct this litigation;
ii. to decide where to live;
iii. to make decisions in relation to...
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