Westminster City Council v C and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thorpe,Lord Justice Wall,Lady Justice Hallett DBE |
| Judgment Date | 19 March 2008 |
| Neutral Citation | [2008] EWCA Civ 198 |
| Docket Number | Case No: B4/2008/0088 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 March 2008 |
[2008] EWCA Civ 198
Lord Justice Thorpe
Lord Justice Wall
Lady Justice Hallett Dbe
Case No: B4/2008/0088
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE (FAMILY DIVISION)
RODERIC WOOD J
FD07P99838
Mr J Luba Qc & Mr S Knafler (instructed by Messrs Bennett Wilkins) For The Appellants
Mr A Verdan Qc (instructed by Messrs Creighton & Partners) For The First Respondent
Miss A Ball Qc & Mr A Bagchi (instructed by Messrs Irwin Mitchell) For The Second Respondent
Hearing dates: 5th February 2008
The family at the heart of this appeal are British nationals domiciled and habitually resident in this jurisdiction. However the family is of Bangladeshi origin and only IC was born in this country.
IC was born on the 11 th October 1981 and is sadly handicapped. He suffers from severe impairment of intellectual functioning and autism. Expert evidence before the court is to the effect that in no area of his development does IC currently show the skills that are to be expected of an average three year old. Indeed in many areas he functions substantially below this mark. He needs very considerable support in all areas of his life and cannot be left alone without risk. He is highly suggestible and vulnerable. He receives home care five mornings a week before he attends a day centre. Additionally he receives a high level of respite care. The local authority has been involved in supporting and protecting him since he was four years of age.
The role of marriage in the life of one so handicapped is inconceivable in our society. Furthermore as a matter of law marriage is precluded. IC lacks the fundamental capacity to marry. However the marriage is not precluded in Bangladesh.
The City Council had raised the issue of marriage with IC's parents in the autumn of 2006. There was clearly no agreement that IC could not and should not ever marry. Accordingly on the 23 rd April 2007 the Local Authority applied under the inherent jurisdiction of the High Court for:—
“A declaration as to the capacity of IC to marry. The local authority does not consider that IC has the mental capacity to marry.”
The application also sought declarations in relation to IC's circumcision.
The court's jurisdiction to prohibit the marriage of an incapacitated adult is not in question. However the response from IC's parents solicitors contained in a letter of 2 nd May 2007 was to the effect that IC was married in a Muslim ceremony which took place by telephone on or about the 26 th August 2006. The telephone link was between IC in this jurisdiction and a bride, NK, chosen by his parents who was in Bangladesh. Later the date of the telephonic marriage was shifted to 3 rd September 2006.
This development finds its reflection in an order made by Munby J on 22 nd November 2007. He settled the issues to be decided at a hearing fixed for 12 – 14 December 2007. The issues were set out in a schedule to the order and were as follows:-
“1. Does IC have the mental capacity to consent to
a) marriage
(b) sexual relations
(c) circumcision?
Is IC lawfully married
(a) in Sharia Law
(b) in Bangladesh
(c) in English civil law?
3. If IC is lawfully married either in Sharia Law or in Bangladesh, is that marriage recognised in English Law?
a) Does the “dual domicile” or “most real and substantial connection” principle apply?
b) What are the consequences of a finding that either applies?
c) Are any further proceedings necessary?
4. Does the Court have jurisdiction to prevent the family changing IC's domicile or taking him to live in Bangladesh?
5. Should the court refuse as a matter of principle to exercise the best interests jurisdiction in this case?
6. What is the correct test/approach for establishing IC's best interests?
7. What, if any further evidence/procedures are appropriate?
8. What relief ought to be granted at this stage?
9. What is to be the ambit of the second stage of the hearing?”
The hearing in mid December was conducted by Roderic Wood J who handed down a comprehensive reserved judgment dated the 21 st of December. The order that he made (perfected on 21 st January 2008) does not relate to the list of issues settled by Munby J precisely but it contains a number of declarations as follows:—
“a. IC is domiciled in England;
b. IC lacks the capacity to conduct litigation;
c. IC lacks the capacity to marry;
d. IC lacks the capacity to consent to sexual relations;
e. IC lacks the capacity to consent to circumcision;
f. circumcision would not be in his best interests;
g. the “marriage” of IC and NK on or about the 3 September 2006 took place in Bangladesh and is a valid marriage in Muslim law and in Bangladesh civil law;
h. the “marriage” of IC and NK on or about 3 September 2006 is not valid under English law.”
Following the declarations orders were made to ensure that IC could not be brought into contact with his bride, NK, pending trial or a full hearing at which the judge would determine all outstanding best interest issues.
However on the 11 th January 2008 an Appellant's Notice was filed, particularly attacking the judge's declaration (h) and further challenging the court's jurisdiction to prevent IC's permanent removal to Bangladesh and more generally seeking the cessation of the proceedings to consider best interest issues.
On the 24 th January the application was listed for oral hearing on notice on 5 th February with appeal to follow if permission granted. On the same day Roderic Wood J gave further directions for the conduct of the proceedings, particularly putting the final hearing back to August 2008.
The appellants grounds of appeal simply contend that the judge was wrong in law to declare that IC's marriage was not valid in English law and that the judge was wrong in law to have assumed jurisdiction in relation to IC's future protection and management. The appellant's case as argued by Mr Jan Luba QC was advanced on three grounds: first the validity of declaration (h), second the court's jurisdiction to prevent IC's removal to Bangladesh and third, if such a jurisdiction exists, how is it to be exercised?
Although the appeal was argued extremely skilfully by Mr Luba there was little that he could make of the second and third grounds. He suggested that the commencement of the Mental Capacity Act 2005 introduced an exhaustive statutory code which excluded the court's inherent jurisdiction. He advanced no authority for that proposition and the decision of Munby J in Local Authority X v MM & KM [2007] EWHC 2003 (Fam) indicates otherwise (see in particular paragraphs 87, 111 and 167).
Within the Act itself the court has wide powers derived from sections 15 – 17 in particular. Of obvious relevance is section 17(1)(a) in these terms:-
“The powers under section 16 as respects P's personal welfare extend in particular to – (a) deciding where P is to live;”
In my judgment that clearly empowers the judge to prevent an exeat to Bangladesh where, as some of the evidence here suggests, it would be contrary to the health and welfare of the vulnerable adult.
Mr Luba relies upon the commentary in the 14 th Edition of Dicey, Morris & Collins on the Conflict of Laws (hereinafter Dicey) in paragraph 6–108 to this effect:-
“Although the Mental Health Act 1983 made provision for dealing with the property and affairs of a mentally disordered person, and these provisions are further developed in the Mental Capacity Act 2005, there is no power to determine the domicile of such a person. Under the 2005 Act the Court of Protection is given power to take decisions on behalf of the person lacking capacity in respect of his property and affairs, and the Act contains a partial list of the types of decision covered by this power. A decision as to where a person is to live in the immediate future is within the scope of the power, but it is thought that a decision about permanent residence, such as is required for the animus manendi, is not.”
I read that paragraph as addressing the court's power to determine domicile and such limitation as there may be does not in my opinion circumscribe the court's jurisdiction to determine the residence of the vulnerable adult where on the facts his protection or the consolidation of his welfare so require.
I am even less persuaded by Mr Luba's submission under ground three. Mr Luba's basic submission is that the High Court judge is only empowered to interfere with the family life of the incapacitated adult insofar as interference is necessary to safeguard from harm. I appreciate that this submission can be related to paragraph 6 of the preliminary issues settled by Munby J. However the submission cannot be related to anything very specific in the order of the 21 st of December and the only paragraphs criticised by Mr Luba in the judgment were paragraphs 120 and 150. I need not recite those paragraphs. It is sufficient to say by way of summary that there is nothing in them open to criticism and each demonstrates the judge's cautious approach to the exercise of the jurisdiction to interfere with family life for the protection of IC.
For all those reasons I would refuse permission to appeal on grounds two and three.
Ground 1 raises difficult questions and I say at once that Mr Luba's powerful and persuasive...
To continue reading
Request your trial
- A v K
-
Xcc v Aa and Others
...(orse Rodriguez) v Cheni [1962] 3 All ER 873, [1965] P 85, [1963] 2 WLR 17. City of Westminster Social and Community Services Dept v C[2008] EWCA Civ 198, [2008] 2 FCR 146, [2009] Fam 11, [2009] 2 WLR F (adult: court’s jurisdiction), Re[2000] 3 FCR 30, [2000] 3 WLR 1740, CA. MN, Re[2010] EW......
-
Guys and St Thomas' NHS Foundation Trust (GSTT) v R
...Capacity Act 2005 when the remedy sought does not fall within those provided in the Act: see, for example, City of Westminster v IC [2008] EWCA Civ 198 and NHS Trust v Dr A [2013] EWHC 2442 COP. (3) As to the definition of vulnerability in these cases, the picture is comprehensively outli......
-
Re L (Vulnerable Adults with Capacity: Court's Jurisdiction) (No 2)
...to cover individuals such as ML. 46 A difficulty for the appellant's argument is that this court in Westminster City Council v C [2008] EWCA Civ 198; [2009] 2 WLR 185 (Thorpe, Wall and Hallett LJJ) roundly dismissed grounds of appeal that argued that the inherent jurisdiction relating to a......
-
The Vulnerability Jurisdiction: Equity, Parens Patriae, and the Inherent Jurisdiction of the Court
...para 32 quoting from the decision of Justice Macur in RYJ and VJ , supra note 130 at para 62; see also Westminster City Council v C , [2008] EWCA Civ 198. 133. Local Authority , supra note 7 at paras 53, 54. 134. Ibid at para 63, per Justice David. 135. Ibid . 136. Ibid . 221 (2016) 2(1) CJ......
-
Marriage
...77 Above note 26. 78 Ibid at 621. 79 [1965] P 85 at 98 [Cheni]. See also KC v City of Westminster Social & Community Services Dept, [2008] EWCA Civ 198 at paras 31-32 and 80 See Walker, above note 28 al para 16.5. 81 See Chapter 3. Marriage 4Í7 of problem involves the time element8283 in th......