Luton Borough Council (Applicant) SB (1st Respondent) RS (by his litigation friend the Official Solicitor) (2nd Respondent)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hayden |
| Judgment Date | 03 December 2015 |
| Neutral Citation | [2015] EWHC 3534 (Fam) |
| Docket Number | Case No: FD14F05039 |
| Court | Family Division |
| Date | 03 December 2015 |
[2015] EWHC 3534 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
IN THE MATTER OF AN APPLICATION
UNDER THE FORCED MARRIAGE PROTECTION
ORDER 2007 (PART IV FAMILY LAW ACT 1996)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Hayden
Case No: FD14F05039
Ms. A. Hearnden (instructed by Luton Borough Council) for the Applicant
Ms. C. Renton> (instructed by Cameron Clarke Lawyers Ltd) for the 1 st Respondent
Mr. A. Bagchi QC (instructed by the Official Solicitor ) for the 2 nd Respondent
Hearing dates: 26 th, 27 th & 28 th October 2015
I am concerned in this case with RS who is 25 years of age and who has intellectual disability and autism spectrum disorder. These challenges have led to RS having behavioural and emotional difficulties. He lives with his mother who is the first respondent in these proceedings. Also sharing the home are six of RS's seven siblings. During the course of this hearing I heard evidence from members of RS's family. It is important that I preface this judgment by signalling that it is entirely plain to me that RS is greatly loved by his family and that their actions have been motivated by a determination to ensure that he is cared for and protected throughout his life.
The proceedings were commenced by an application on the 14 th November 2014, brought by Luton Borough Council, seeking a Forced Marriage Protection Order [FMPO] under Part 4 A of the Family Law Act 1996. That application was designed to forestall an anticipated marriage. However it subsequently transpired that a marriage had taken place in Pakistan on 23 rd October 2014.
On 29 th April 2015 I approved an application to reconstitute and continue the proceedings under the Inherent Jurisdiction of the High Court. Along with a range of other Case Management Orders, I granted permission for the Parties jointly to instruct Dr. Peter Carpenter, a Consultant Psychiatrist to provide a report assessing RS's capacity to:
a) litigate in these proceedings;
b) consent to marriage;
c) consent to sexual relations;
I also provided that Dr. Carpenter should identify any recommendation in respect of steps which might be taken to assist RS to maximise his understanding of sexual relations in the event that he proved to be lacking capacity to consent.
There is now no dispute that RS lacks the capacity to litigate and, since April 2015, he has been represented by the Official Solicitor. W, the woman with whom RS went through the ceremony of marriage whilst in Pakistan has been informed about these proceedings, has filed two statements and gave evidence, with the assistance of a translator, via a telephone link from Pakistan.
The identified questions for this hearing are whether:
i) RS had mental capacity to marry at the date of his marriage to W; and if not;
ii) whether the court should exercise its power under the inherent jurisdiction to declare that the marriage is not recognised as valid in England and Wales as a precursor to the initiation of formal proceedings to annul the marriage.
Pursuant to my Order of the 29 th April the Parties were able to agree a statement of issues, following an advocates meeting on the 23 rd October 2015. They read as follows:
Does RS lack capacity to:
i) Consent to marry?
ii) Consent to sexual relations?
iii) If RS lacks capacity to marry and/or consent to sexual relations are there further steps which can and should be taken to help RS understand the relevant information (e.g. sex education)?
iv) If such steps should be undertaken does this alter whether or not the court should exercise its discretion to declare the marriage non-recognised at English law?
v) If the court decides that RS lacked the capacity to marry on 23 October 2014 should the court then adjourn the proceedings to enable the local authority to initiate an application under the Mental Capacity Act 2005 and to enable an assessment to be undertaken of:-
vi) his capacity to have contact with others including W;
vii) his best interests in relation to:-
a) His contact with W;
b) Whether an order should be made authorising the initiation of nullity proceedings;
c) What he should be told of the decisions of the court and how he should be given such information;
d) Whether he may travel to Pakistan or be permitted otherwise to travel out of the jurisdiction.
e) Whether an extension of the FMPO should be granted and/or an injunction should be granted to prevent another ceremony of marriage involving RS.
viii) Should the court exercise its discretion under the inherent jurisdiction to make a declaration that the marriage is not recognised at English law?
As submissions evolved the Bar has agreed that the issues at para (v) above do not require consideration at this hearing and may not ultimately require adjudication.
The Background
It is not necessary for me to rehearse the background of RS's life extensively; I simply highlight a number of incidents which help to provide some context to the issues in the case generally. In 2007 when RS was 18 years old, his mother (M) informed the Social Services Department that her son was displaying what is described as inappropriate sexual and aggressive behaviour. There is a record that M speculated at that time that marriage might assist her son. The Local Authority record that M was advised against marriage by the Specialist Medical Services. At that stage RS's behaviour caused concern both for his own safety and that of any potential spouse.
In 2008 RS was placed in a residential unit in Stoke-on-Trent. All agree that this arrangement came about because his behaviour at home had become unmanageable. In her evidence to me M spoke of this period with evident distress. She told me that this had been a difficult time for her personally, that she had felt very guilty about these arrangements and the fact that neither she nor any other members of the family had been able to visit RS regularly in the four years that he remained a resident at the unit. She told me that in the summer of 2012, as I understand her evidence, RS returned for a home visit with a damaged and swollen hand, which injury he had sustained when lashing out at a door. The hand, M told me, looked very painful and RS said that he had behaved in that way out of frustration for being locked up for too long. M also considered that the drugs regime at the unit had made her son 'like a Zombie', as she put it, 'for long periods of time'.
I emphasise that I relate M's account without any intention of endorsing it as accurate. It is not necessary for me to do so. Its significance to this forensic exercise is that it represents M's account of the past, which I am convinced she believes to be truthful.
In July 2012 M drove to the unit and removed RS. From that period he has lived with M and siblings. Although RS has been seen periodically by Dr. Iqbal (Consultant Psychiatrist) there appears to be no further incident of sexually inappropriate behaviour since returning home. However, I note that Dr. Iqbal records, in December 2013, that RS 'makes socially unacceptable comments and also displays embarrassing behaviour such as crying and speaking loudly'. M reported that RS was very attentive to his personal hygiene; likes things to be in order and has a very good memory. However, he had difficulty sleeping and tended to stay awake until the middle of the night. In December 2013 M said that she found him difficult to manage at weekends and in the evenings because he tended to be very loud and needed constant attention and supervision. She told me during the week RS has support from care assistants. He tended to repeat questions but, conversely, did not like to be asked questions himself or to take any requests from M.
Dr. Shastri, Associate Specialist Psychiatrist, prescribed Risperidone to decrease agitation and sleep disturbance. I should also add that the medical records reveal RS to have gained a significant amount of weight. At this time he weighed 129Kg with a BMI 36.5. M told me in evidence that she has successfully weaned her son off his medication, albeit without medical advice. In the last two years M reports RS as having settled and matured. M denies that RS exhibits any sexually inappropriate behaviour and describes him as gentle and kind. The social worker is sceptical as to the accuracy of this information and suggests that there have been some signs that RS continues to display worrying traits, such as touching the head and face of females he does not know well.
In evidence I also heard from RS's sister (SB) and his uncle (Z). They both were at pains to emphasise how they considered that RS had developed into a delightful, gentle and essentially placid man. They considered that it was family members who were best able to evaluate the strengths and potential of RS. Doctors and Social Workers, who saw RS infrequently or for narrow periods of assessment, they felt simply did not have the real opportunity fully to appreciate the depth and strength of RS's personality. I find that, at times, this family may have consciously exaggerated the extent of RS's real potential but for the most part I think they genuinely focus on RS's strengths rather than dwelling on his disadvantages. M told me that quite recently RS had managed to purchase a bag of lentils from the local corner shop entirely without assistance. She told me that she had given him the exact money and a nearly empty bag of lentils to take with him to assist him in this...
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