Re SA (Vulnerable Adult with Capacity: Marriage)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MUNBY,Mr Justice Munby |
| Judgment Date | 15 December 2005 |
| Neutral Citation | [2005] EWHC 2942 (Fam) |
| Court | Family Division |
| Docket Number | Case No: FD05P01378 |
| Date | 15 December 2005 |
[2005] EWHC 2942 (Fam)
Mr Justice Munby in the Matter of Sa
Case No: FD05P01378
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(In Private)
Mr Teertha Gupta (instructed by the Legal Department) for the plaintiff (local authority)
Ms Anne-Marie Hutchinson (of Dawson Cornwell) for the third defendant (SA)
The second defendant (mother) in person
The first defendant (father) was neither present nor represented
Hearing date: 1 December 2005
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.
This judgment was handed down in private but the judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location.
Mr Justice Munby:
This case raises novel questions about the court's inherent jurisdiction in relation to vulnerable adults. I have before me a vulnerable young woman who has just turned eighteen and has therefore attained her majority. While she was still a child the court had exercised its inherent parens patriae and wardship jurisdictions to protect her from the risk of an unsuitable arranged marriage. The question is whether I have jurisdiction to continue that protection now she is an adult.
The question arises because expert evidence establishes that this young woman, although undoubtedly vulnerable, equally undoubtedly has the capacity to marry. In other words the case raises the question of whether the inherent jurisdiction in relation to adults can be exercised for the protection of vulnerable adults who do not, as such, lack capacity. In my judgment, the jurisdiction can be so exercised. And I propose to exercise the jurisdiction in this particular case, so that a young woman who remains just as vulnerable now she is an adult as she did when she was still a child should not suddenly be deprived of the protection which the court has hitherto felt it necessary to afford her and which I believe is still very much required in her best interests.
The facts
SA was born on 10 December 1987. She comes from a Pakistani Muslim family and lives at home in a provincial city in this country with her father, MA, her mother, NA, her older brother and her two younger brothers.
SA is profoundly deaf. She has no speech, no oral communication. She has profound bilateral sensory neural loss. She also has significant visual loss in one eye. She communicates by British Sign Language, which is based on English. Her ability to lip read is low. She has some capacity to lip read English but no ability to lip read the family's first language, which is Punjabi. She cannot understand, lip read or sign in either Punjabi or Urdu. Neither of her parents is able to communicate with SA using British Sign Language. It follows that communication between SA and her parents is necessarily very limited. Her children's guardian understandably expresses doubts that SA would be able to understand her parents' wishes and plans in relation to her future. Equally, it must be doubted that they would be able to understand SA's own wishes and plans.
The workers most closely involved with SA say that she sees her identity as being primarily as a deaf person, secondly as from the place where she lives and thirdly as a Muslim. Apparently she does not attend the mosque.
SA was statemented and attended a specialist unit for hearing impaired children. The local authority's appraisal is that she functions at the intellectual level of a 13 or 14 year old and has a reading age of about 7 or 8.
SA has recently been assessed by Dr Shaun Parsons, a Chartered Forensic Psychologist, who interviewed her at length using a British Sign Language interpreter. His report is dated 24 October 2005. It requires to be read in full. Partial quotation cannot bring out the subtle and nuanced detail of a remarkable, sympathetic and illuminating report.
Dr Parsons stressed the difficulties of formally assessing someone who can communicate only by means of British Sign Language – the Wechsler Intelligence Scale for Children relies on both non-verbal and verbal tests and its validity is therefore likely to be severely compromised by the use of British Sign Language. But he was able to express the opinion, based on the Comprehensive Test of Non-verbal Intelligence, that SA has an overall non-verbal IQ of 75, a pictorial non-verbal IQ of 68 and a geometric non-verbal IQ of 85. Overall, he assessed SA's level of non-verbal intellectual functioning as likely to be in the borderline range of ability rather than the learning disability range. He undertook no formal assessment of SA's verbal IQ but felt that it was likely to be in the learning disability range.
Dr Parsons added four important observations. The first related to SA's verbal IQ:
"It was clear that she had significant difficulties understanding the meaning of relatively simple words and it was also clear that at times she had significant difficulty understanding verbal instructions. When this was compared to her ability to follow non-verbal instructions, such as in the CTONI, this difference was marked."
The second related to SA's possible suggestibility:
"It is my opinion that [SA] would be, to some extent, suggestible given that she has significant difficulty understanding information presented verbally and also because she appears to have significant difficulties understanding complex concepts presented in spoken English, which then must be presented to her in BSL. It is my opinion that it is highly likely that the nuances of any conversations that were occurring around her, even if translated to BSL, would not be understood by her. Therefore, I believe that, although she may not be particularly suggestible, it would be extremely easy to mislead [SA] and in that sense she would be both suggestible and vulnerable."
The third related to SA's ability to understand what is being presented to her:
"[SA] is not able to understand any information given to her that is not translated into BSL. Her ability to understand BSL would, from the evidence of my clinical assessment, appear to be a good understanding. It was clear at times that the translator was conveying complex concepts to her using BSL and [SA] did appear to understand them. It was also clear by observing the translation, that such concepts were being presented in an extremely nonverbal way. That is, that they relied on her nonverbal intelligence. For example some complex tasks were broken down into their constituent parts and related to [SA] in stages. It is therefore my opinion that even if the information is presented to her in written English, it is likely that her understanding will be incomplete."
Dr Parsons continued:
"To summarise, it is therefore my opinion that [SA] is only able to comprehend what is said to her if it is presented in British Sign Language."
This last point is, in my judgment, of fundamental importance, as is Dr Parsons's final observation, which related to SA's ability to convey her views:
"In my opinion [SA] is able to at times forcefully explain her views in BSL. During the clinical assessment [SA] was clearly able to form an opinion and then be able to argue why she held that opinion and, as discussed earlier, was not suggestible in the sense that it was not possible to persuade her from that opinion. [SA]'s ability to convey her opinion in any other medium than BSL, including written English, is in my view extremely limited and she would have extreme difficulty expressing herself in any other medium."
Dr Parsons investigated SA's understanding of the concept of marriage and of the nature of a sexual relationship. It was clear, at the end of what he referred to as a prolonged discussion, that SA has what Dr Parsons describes as a rudimentary but nevertheless clear and accurate understanding of the concept of marriage and of what a marriage contract would entail; that she has an accurate and realistic understanding of what a sexual relationship is, its effect and implications, and what would be expected within the relationship; and that she understands that a marriage can legally be ended only by divorce.
Dr Parsons is accordingly of the opinion that SA does have the capacity to understand the general concept of marriage in accordance with the test as laid down in Sheffield City Council v E [2004] EWHC 2808 (Fam), [2005] Fam 326.
Dr Parsons added a number of important riders. The first related to possible immigration problems:
"On a number of occasions [SA] made it extremely clear that although she wished to travel to Pakistan in order to obtain a husband through an arranged marriage in accordance with the customs of her Muslim background, she would not wish to live in Pakistan and would wish to return to [her home town] to live either in the family home or to set up home with her husband. She clearly stated that if it were not possible to return to [her home town] due to immigration laws or because her partner was not willing to return with her, she would not wish to marry that particular individual.
At this point I attempted to discuss with her what would happen if the immigration authorities did nor permit her husband to enter the UK, but despite significant attempts to convey and explore this concept with her, it became clear that she did not understand this concept, she simply responded in an extremely concrete way...
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