X City Council v MB, NB and MAB [FD]

JurisdictionEngland & Wales
CourtFamily Division
Judgment Date13 February 2006
Neutral Citation[2006] EWHC 168 (Fam)
Neutral Citation:

[2006] EWHC 168 (Fam)

Court and Reference: High Court, Family Division, FD05P00566
Judge:

Munby J

X City Council
and
MB, NB and MAB
Appearances:

A Whitfield QC and H Watson (instructed by the City Secretary) for the local authority, UR Sood (instructed by Smith Partnership) for the first and second defendants (father and mother), A Ball QC (instructed by Irwin Mitchell) for the Official Solicitor.

Issues:

Whether capacity to marry includes capacity to engage in sexual relations; the test for capacity to engage in sexual relations.

Facts

MAB, the unmarried adult son of MB and NB, had marked autism and lacked the capacity to marry or to consent to sexual relations. His parents wished to take him to Pakistan. They had in the past sought an arranged marriage for him, but the proposed fiancée had been refused permission to enter the UK from Pakistan. Proceedings were commenced, and interim orders made, to prevent the travel in light of concerns as to the pressure the parents might feel to arrange a marriage for their son when they were in Pakistan and his fitness to travel. The main issue arising at the time of the final hearing was the appropriate test for capacity to consent to sexual relations.

Judgment

(Handed down in private but with leave to report it.)

1. MAB was born in 1980, so he is 25 years old. He suffers from marked autistic spectrum disorder, which has been evident from the age of 3. He shows impaired reciprocal social relationships with limited empathy or understanding of the needs of others. He has impaired communication and very little language. He exhibits challenging and unpredictable behaviour. His older brother, who was born in 1978, also has severe autism. He has a younger brother born in 1983 who is unimpaired and is indeed at university. The family is Muslim and comes from Pakistan but all three children were born and brought up and live in this country. In fact all three children still live at home with their father, MB, and mother, NA1.

2. It is common ground that MAB is a patient within the meaning of CPR Part 21.1(2)(b). Accordingly he acts by the Official Solicitor as his litigation friend.

3. Since June 1998 MAB has been under the care of Dr C, a Consultant Psychiatrist in Learning Disabilities. As will become apparent in due course, Dr C has long been of the view that MAB lacks the capacity to marry. The matter is now beyond dispute.

4. An independent expert, Dr Nicholas Land, who is a Consultant Psychiatrist in Learning Disabilities and Deputy Medical Director and Associate Medical Director (Learning Disabilities) of Tees and North East Yorkshire NHS Trust, has produced a detailed report dated 27 July 2005 which no-one has challenged. In that report Dr Land concludes, giving detailed explanations for his conclusion and applying the test in Sheffield City Council v E [2005] Fam 326, [2007] Mental Health Law Reports 131 that MAB lacks the capacity to marry. Dr Land also concludes, again giving detailed explanations for his conclusion, that MAB lacks the capacity to consent to sexual relations. As he puts it, MAB does not have even a rudimentary understanding of the practical issues of human reproduction.

5. In a report dated 21 October 2005 Dr C was equally clear:

"In my opinion, [MAB] does not understand the nature of the contract of marriage. This is because of his level of learning disability which precludes him from understanding the mutual responsibilities of marriage … It is also my opinion that because of his autistic spectrum disorder he cannot grasp the social implications of marriage and duties and responsibilities normally associated with marriage."

6. The present proceedings were started on 24 March 2005 by the local authority for the area where MAB and his family live. The local authority, which has had extensive involvement with MAB and his family, providing support services for the family and for MAB and his elder brother, was concerned that MAB's parents were about to take him to Pakistan, possibly to be married. The same day HHJ Bevington, sitting as a Deputy High Court Judge, made various orders, including a tipstaff passport and all ports alert order, and granted various injunctions. Those injunctions have remained in place ever since.

7. The matter came on for trial before me on 28 November 2005. There was, as I have said, no issue between the parties as to MAB's lack of capacity. The main issue was as to what if any relief, and in what form, should be granted to restrain MAB being married or being taken to Pakistan. On that there were differences between the various protagonists: Mr Adrian Whitfield QC and Ms Hilary Watson appearing for the local authority, Ms UR Sood appearing for MAB's father and mother, and Ms Alison Ball QC appearing for MAB's litigation friend, the Official Solicitor.

8. Very properly, and in my judgment wholly appropriately, the local authority accepts that MAB's parents are deeply committed to the well-being of all their children. Mr Whitfield correctly described them as loving and heroic parents. I should like to associate myself with that description. The parents, I have not the slightest doubt, are devoted and committed in their care for MAB and his elder brother, just as they are also, of course, devoted to their youngest son. Their only motivation is to do their very best for their sons. Their sons' welfare is their only consideration. It is their guiding objective. Many parents would long ago have buckled under the strain. MAB's parents have not.

9. Two very impressive character witnesses were called, one an elected member of the local authority and the other an Anglican clergyman who, as it happens, lived for some years in Pakistan. Both know the parents very well. Both spoke of them in the highest terms, displaying, as it seemed to me, a profound admiration and respect for the parents and everything they had being doing over the long years of looking after their sons. That admiration and respect, I have no doubt, was well justified. It accorded entirely with the impression I formed from observing the parents in court and whilst giving evidence. The parents are entitled to an unqualified recognition - in my case a humble and admiring recognition - of their commitment and devotion to their sons.

10. There is no doubt that for many years it has been the ambition of MAB's parents that he should marry his first cousin R. She was born in 1978 and is the daughter of MAB's mother's sister. She lives in Pakistan. The local authority accepts that it is entirely understandable that MAB's parents should wish to see him happily married. But it is concerned that, as Ms Farooqi Thakrar, the independent social work expert put it in her report dated 2 August 2005,

"Given the lack of social support for people with learning disabilities in Pakistan, marriage between a learning disabled person and a person without a learning disability is often considered a means to securing their future care."

The local authority is also concerned that, particularly in Pakistan, there may be cultural and family pressures towards marriage despite the parents' very clear insistence that they would not force an unsuitable or unwanted marriage on their son or niece.

11. The essential thrust of the local authority's case is that MAB's parents have not abandoned hope of a marriage between MAB and R, indeed, as Mr Whitfield puts it, that they have shown "marked persistence" in exploring the possibility of marriage between MAB and R. And this even though the evidence is clear that he lacks the capacity to marry, even though all attempts by R to obtain leave to enter this country as his fiancée have failed and even though the evidence is also clear that MAB is not at present able to tolerate the long flight to Pakistan. The local authority's case is that performance of a ceremony of marriage abroad while MAB lacks capacity would be, as it puts it, "disastrous" because, quite apart from the risks for MAB attached to the long distance he would have to travel, (i) if the couple attempted to return, and the authorities knew that the marriage was not considered valid, R would be barred entry and (ii) if they stayed abroad the facilities for looking after MAB, as well as parental support, would be less available than they are in this country.

12. The local authority recognises that these are issues which require sensitive exploration, not least bearing in mind the undoubtedly deep concern which his parents have for MAB's welfare, but they submit that nonetheless at the end of the day this is a case where injunctive relief is necessary to safeguard and promote MAB's best interests.

13. From 1999 until July 2005 MAB's parents were taking active steps in furtherance of their ambition that MAB should marry R:

  1. (i) In April 1999 an application was made to the Entry Clearance Officer in Islamabad for leave for R to enter this country as MAB's fiancée under para 290 of the Immigration Rules, HC 395. That application was refused by the ECO on 18 May 1999. R appealed. Her appeal was heard by an Adjudicator, Prof G K Morse, on 20 March 2000 and dismissed in a determination dated 13 April 2000. Applying the test set out in Mohd Meharban v ECO Islamabad [1989] Imm AR 57, Prof Morse held that MAB and R had not "met" within the meaning of para 290(ii), their only meeting having been in 1983 when MAB was aged 3.

  2. (ii) In July 2001 an application was made to the Secretary of State for the Home Department for a visa to enable R to settle permanently in this country. The application was made outside the normal Immigration Rules and, as it was put, on compassionate grounds. It was refused by the Secretary of State on 14 December 2001. R appealed and filed additional grounds by letter dated 30 May 2002 raising various issues under the European Convention for the Protection of Human Rights and Fundamental Freedoms. Her appeal was heard by an...

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