Sandwell Metropolitan Borough Council v RG and GG and SK and SKG
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holman |
| Judgment Date | 04 July 2013 |
| Neutral Citation | [2013] EWCOP 2373 |
| Court | Court of Protection |
| Docket Number | Claim Nos: 11915104 and 11915369 |
| Date | 04 July 2013 |
[2013] EWCOP 2373
IN THE COURT OF PROTECTION
Sitting at Birmingham
Birmingham Civil Justice Centre
The Priory Courts
33 Bull Street
Birmingham
B4 6DS
Mr Justice Holman
Claim Nos: 11915104 and 11915369
Miss Michelle Pratley appeared on behalf of the Applicants
Ms Elizabeth Isaacs QC appeared on behalf of the Respondents RG and GG by the Official Solicitor
Mr Joseph O'Brien appeared on behalf of the Respondent, Mrs SKG
Mr Christopher Gibbons appeared on behalf of the Respondent, Mrs SK
Thursday, 4 th July 2013
I have been very grateful to the advocates, Miss Michelle Pratley, Mr Christopher Gibbons and Ms Elizabeth Isaacs QC for the sensitive, informed and cogent ways in which they advanced their respective cases. I am no less grateful to Mr Joseph O'Brien, who appeared on behalf of the mother but who, appropriately, withdrew once it was clear that she did not wish to advance any case on the remaining disputed issues, but who remained in touch as the case progressed.
I am grateful, too, to all the instructing solicitors, who were patently providing much help and direction to the advocates. In this regard I particularly thank and compliment Miss Kirstine McFarlane, the solicitor instructed by the Official Solicitor to represent GG and RG. She has formed a good relationship with each of them, and the manner in which she assisted them and asked sensitive and helpful questions during their meeting with me this morning was skilled, exemplary and worthy of high praise. Finally, I would like to record my gratitude to the interpreter, who not only interpreted with apparent skill, but who clearly provided gentle support to the wife, Mrs SK, during an exceptionally stressful hearing for her.
I wish to stress at the outset that this case, like, indeed, many cases in the Court of Protection, is highly fact specific. I do not intend by this judgment to indicate any "policy", precedent or guidance as to any other case.
The case concerns two brothers, GG, who is now aged 39, and RG, who is now aged 38. They are two of the four children of the late Mr MSG and his widow, Mrs SKG. Mr MSG was a very prominent and respected member of the Sikh community in Great Britain. The other children, both adult, are of normal intelligence and capacity. GG and RG are not.
The family originate from the Punjab, in India, but moved to live in England while GG and RG were still quite young children. The parents did, however, retain property in India, and periodically returned there, facts which are germane to domicile, as I will later mention.
It is common ground and not at all in issue that each of GG and RG has moderate learning difficulties, are of low intelligence and can exhibit challenging behaviour. Each has lived for some time now in accommodation provided and staffed separately for each of them by the local authority.
Each has been examined and assessed for, and within the context of, these proceedings by a consultant psychiatrist, Dr Kiriakos Xenitidis. His more formal and elaborate diagnosis is as I have just summarised it, and he considers that the impairments date from babyhood, if not from birth, and are likely to be lifelong, with little or no prospect of improvement of maturation.
I had the pleasure and advantage of meeting both GG and RG this morning, together with their dedicated support workers, respectively Mr Dwain Cheshire and Mr Kwadwo Kusi-Frimpong. Each displayed charm and impeccable manners. The meeting served to illuminate to me the low level at which each functions intellectually. GG, in particular, was very easily led and did little more than parrot answers to Miss McFarlane or myself.
GG said that he wants to go to India. He likes Bangra dancing and visiting his mum and brothers. He likes it where he lives, at K house. Dwain, his support worker, is very nice, and his favourite food is saag. When asked if there was anything else he wanted to tell the judge, he said he had seen a snake on telly. I will summarise later what RG told me.
After considerable investigation and careful consideration by the local authority, the Official Solicitor and experts variously instructed by them, it is now common ground: first, that GG and RG each lack the capacity to make a range of decisions as to where they reside, their care packages, their contact with others, and certain other matters; and, second, that it is in their respective best interest that there be a range of declarations and other orders in terms which have been carefully drafted, and with one exception, are agreed.
There is no dispute at all in relation to the proposed order in the case of GG, and I need say no more about him or it. There is no dispute, either, in relation to all issues as to where RG resides, contact with his birth family, and a number of other welfare matters. There is, however, an added feature in relation to RG.
In March 2009 RG was taken by his parents to the Punjab, where he participated in an arranged marriage ceremony with a lady, Mrs SK. It is not in issue that the marriage has formal validity under the law of the place where it was contracted. It was arranged between the late father, who has since died, of RG, and the father or family of Mrs SK.
RG's mother, Mrs SKG, was resistant to the marriage taking place, but in the end accepted and complied with the will of her husband. It is said that it would not have been easy to arrange a husband for Mrs SK, who was then in her later twenties, since she is lame. There is a picture, therefore, although it was not much investigated at the hearing, of a marriage, arranged by their families, for two people, who, because of their respective mental or physical disability, might otherwise have been hard to marry.
There is some divergence in the written evidence as to the extent, if at all, to which Mrs SK actually met her future husband before the day of the marriage itself. In her oral evidence on affirmation to me she was adamant that she personally never met him before the day of the marriage itself. Even if she did do so, their contacts were minimal, and I accept her evidence that it was only after the marriage that she herself discovered that, in her words, "He is not like a normal person".
Mrs SK bears no personal responsibility at all for the events which happened. There is no question whatsoever of her having personally exploited the mental disability of RG. She was an obedient daughter, in a Sikh family, who compliantly participated in the arrangements that her family made for her marriage. Having married him, she now feels committed to him, and, indeed, says that she does now love him. She says that it would be impossible in her culture and religion for her ever to marry anyone else, and that if she were divorced, or her marriage was annulled, she would be ostracised in her community.
Mrs SK said with feeling that they, that is, the families who arranged this marriage, have ruined her life. Her position is a tragic one, which she bears with fortitude and dignity. She also displayed intelligence and charm during the course of the hearing.
Following the marriage RG remained in India for about ten days. Mrs SK says, and I accept, that the marriage was consummated on the night of the wedding, and that they had sexual intercourse on a few further occasions. RG was then returned to England, where he has lived continuously ever since. Later, in March 2010, Mrs SK also travelled to England, where she has so far been permitted to enter and remain. She is not allowed any recourse to public funds, and she works very long hours, for low wages, as a fruit picker and in similar rural labouring tasks.
The issues that now remain in relation to RG relate to the status and continuation of that marriage. It is accepted by Mrs SK that she cannot provide to RG the support and daily care and assistance that he needs, and always will need, and she no longer resists that he remains living in the accommodation provided and staffed by the local authority. She implores me, however, not to facilitate or permit steps to be taken to annul their marriage.
At the outset of the hearing Mrs SK was also still asking to be permitted to have some sexual relationship with her husband, the more so as it would be culturally impossible, now, for her to do so with any other man. The evidence of Dr Xenitidis was, however, crystal clear that RG has no understanding at all what sex is, and, accordingly, that he lacks any capacity to choose whether to agree to sexual touching. As Xenitidis put it: "He does not even understand what sex is. Whether it is voluntary, or not, is a kind of luxury for him."
In the light of that unchallenged and un-contradicted evidence, Mr Gibbons, who is an experienced barrister in the fields of both family and criminal law, was constrained to concede on behalf of Mrs SK that although she would like to have a sexual relationship with RG, and finds it hard to understand and accept the impact and effect of section 30 of the Sexual Offences Act 2003, she would commit a serious criminal offence under section 30 of that Act if she were intentionally to touch RG, and the touching was sexual.
The fact that they are married to each other would be no defence. If she were to have any form of sexual intimacy with him, he would be the victim of a criminal act. If the act included penetration of Mrs SK's vagina with RG's penis (i.e. normal vaginal intercourse) or even his finger, then the maximum sentence under section 3(3) could be life imprisonment. It would, accordingly,...
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SA (by her Litigation Friend, the Official Solicitor)
...and, at [88], “that nullity is adjunctive rather than an alternative to a declaration of non-recognition”; (f) Sandwell MBC v RG & Ors [2013] EWCOP 2373 in which, as the judge said, Holman J, at [28]–[29], “expressly recognised that, following the decision of Westminster CC v KC, the High C......