X City Council v MB and Others
| Jurisdiction | England & Wales |
| Judgment Date | 2007 |
| Date | 2007 |
| Court | Family Division |
Marriage – Consent – Degree of soundness of mind required – Vulnerable adult – Consultant psychiatrist advising vulnerable adult lacking capacity to marry – Parents taking steps in furtherance of plan for marriage to cousin in Pakistan – Local authority bringing proceedings against parents – Parents conceding lack of capacity – Appropriate form of declaration – Whether appropriate to grant injunction restraining marriage or removal to Pakistan.
MAB, who was born in 1980, suffered from marked autistic spectrum disorder. His family was Muslim and came from Pakistan, although he was brought up in England. It was the ambition of his parents that he should marry his cousin, R, who lived in Pakistan. From June 1998, he was under the care of Dr C, a consultant psychiatrist in learning disabilities, who expressed the view that he lacked the capacity to marry. From 1999 until July 2005, the parents nevertheless took active steps to bring R to England, which proved unsuccessful. In March 2005, the local authority brought proceedings against the parents, having received confirmation that MAB’s father intended to take him to Pakistan notwithstanding repeated statements from Dr C that he would not tolerate a long haul flight due to his medical condition. Various injunctions and orders were made, including a tipstaff passport order and an all ports alert order. A report produced by an independent expert, Dr L, another consultant psychiatrist in learning disabilities, indicated that MAB lacked the capacity to marry and the capacity to consent to sexual relations. At trial, it was conceded by the parents that MAB lacked the capacity to marry, but an issue arose, inter alia, as to the formulation of a declaration to that effect. The local authority submitted that such should provide that MAB did not have the capacity to marry whether inside or outside England and Wales. By contrast, it was submitted on behalf of the parents and the Official Solicitor that the more appropriate formulation was a declaration that any marriage celebrated by him whether inside or outside England and Wales would not be recognised under English law. It further fell to be determined whether an injunction should be granted restraining MAB from being married or taken to Pakistan, or whether undertakings offered by the parents should be accepted, stating that they would not cause or permit him to undergo any civil or religious ceremony of betrothal or marriage, and that they would not take him out of the jurisdiction. In considering the test of capacity to marry, the court considered whether such had to include the capacity to consent to sexual relations.
Held – (1) A declaration would be granted to the effect that MAB did not have the capacity to marry. The form of words suggested on behalf of the local authority was wrong in principle: wrong as a matter of international judicial comity and wrong as a matter of English conflicts law. MAB’s incapacity to marry in the eyes of English law meant that no marriage entered into by him, either in England or abroad, would be recognised in English law. If it was not recognised in English law it would not be recognised by the English public authorities. The fact that a person might not in particular circumstances be able to contract a valid marriage under English law did not mean that under the law of another country, where the test of capacity might be different, that person might not be able to contract a valid marriage. Accordingly, a declaration would be made in the terms suggested on behalf of the parents and the Official Solicitor.
(2) An undertaking was enforceable in precisely the same way as an injunction. The court was in fact likely to take an even more serious view of any breach of an undertaking, for the breach of an undertaking involved the breach of a solemn obligation voluntarily assumed, not the breach of an obligation involuntarily imposed. In the instant case, sufficient reliance could be placed on the parents’ undertakings, given their good sense and manifest concern for MAB.
(3) Generally speaking, capacity to marry had to include the capacity to consent to sexual relations. The test of capacity to consent to sexual relations for that purpose had to be the same as that required by the criminal law. Therefore, the question came to whether the person had sufficient knowledge and understanding of the nature and character of the act of sexual intercourse and of the reasonably foreseeable consequences of sexual intercourse, to have the capacity to choose whether or not to engage in it, the capacity to decide whether to give or withhold consent to sexual intercourse (and, where relevant, to communicate their choice to their spouse).
Cases referred to in judgmentA v B (1868) LR 1 P&D 559.
Baxter v Baxter [1947] 2 All ER 886, [1948] AC 274, HL.
Boardman v Boardman (1866) LR 1 P & D 233, 14 WR 1024.
Briggs v Morgan (1820) 3 Phillim 325 , 2 Hag Con 324.
Brook v Brook (1861) 9 HL Cas 193, HL.
Brown v Brown (1865) LR 1 P & D 46.
Brown v Brown (1828) 1 Hagg Ecc 523.
C (adult: refusal of treatment), Re[1994] 2 FCR 151, [1994] 1 All ER 819, [1994] 1 WLR 290, [1994] 1 FLR 31.
Durham v Durham (1885) 10 PD 80.
H and R (minors) (sexual abuse: standard of proof), Re[1996] 1 FCR 509, [1996] 1 All ER 1, [1996] AC 563, [1996] 2 WLR 8, [1996] 1 FLR 80, HL.
K, Re; A Local Authority v N[2005] EWHC 2956 (Fam), [2007] 1 FLR 399.
Lawrence v Lawrence [1985] 2 All ER 733, [1985] Fam 106, [1985] 3 WLR 125, [1985] FLR 1097, CA.
Meharban (Mohd) v Entry Clearance Officer, Islamabad [1989] Imm AR 57.
M v B, A and S (by the official solicitor) [2005] EWHC 1681 (Fam), [2006] 1 FLR 117.
MB (an adult: medical treatment), Re[1997] 2 FCR 541, [1997] 2 FLR 426, CA.
Morgan v Morgan (orse Ransom) [1959] 1 All ER 539, [1959] P 92, [1959] 2 WLR 487.
Papadimitropoulos v R (1957) 98 CLR 249, Aust HC.
R v Barratt (1873) LR 2 CCR 81, [1861—73] All ER Rep 792.
R v Case (1850) 1 Den 580, 169 ER 381, CCR.
R v Cort [2003] EWCA Crim 2149, [2004] QB 388, [2003] 3 WLR 1300.
R v Clarence (1888) 22 QBD 23.
R v Dee (1884) 15 Cox CC 579, Ir CCR.
R v Dica [2004] EWCA Crim 1103, [2004] 3 All ER 593, [2004] QB 1257, [2004] 3 WLR 213.
R v Flattery (1877) 2 QBD 410, CCR.
R v Fletcher (1859) 23 JP 70, CCR.
R v Fletcher (1866) LR 1 CCR 39, CCR.
R v Howard [1965] 3 All ER 684, [1966] 1 WLR 13, CCA.
R v Linekar [1995] 3 All ER 69, [1995] QB 250, [1995] 2 WLR 237, CA.
R v Morgan [1970] VR 337.
R v Pressy (1867) 10 Cox 635, CCA.
R v R (rape: marital exemption) [1991] 4 All ER 481, [1992] 1 AC 599, [1991] 3 WLR 767, HL; affg [1991] 2 All ER 257, [1992] 1 AC 599, [1991] 2 WLR 1065, CA.
R v Williams [1923] 1 KB 340, [1922] All ER Rep 433, CCA.
Scott v Scott (orse Fone) [1959] 1 All ER 531, [1959] P 103n, [1959] 2 WLR 497n.
Sheffield City Council v E[2004] EWHC 2808 (Fam), [2005] Fam 326, [2005] 2 WLR 953.
SA (vulnerable adult with capacity: marriage), Re[2005] EWHC 2942 (Fam), [2006] 1 FLR 867.
SK (an adult) (forced marriage: appropriate relief), Re[2004] EWHC 3202 (Fam), [2005] 2 FCR 459, [2005] 3 All ER 421, [2006] 1 WLR 81,
Sottomayor v De Barros (1877) 3 PD 1.
Vervaeke v Smith (Messina and A-G intervening) [1982] 2 All ER 144, [1983] 1 AC 145, [1982] 2 WLR 855, HL.
W v H (1861) 2 Sw&T 240
Wellesley v Duke of Beaufort (1827) 2 Russ 1, 38 ER 236, LC; affd sub nom Wellesley v Wellesley (1828) 2 Bli NS 124, [1824—34] All ER Rep 189, HL.
ApplicationsIn proceedings brought by the local authority against the parents of MAB, a vulnerable adult who suffered with autistic spectrum disorder, the local authority sought a declaration that MAB lacked the capacity to marry and an injunction restraining him from being married or taken to Pakistan. The facts are set out in the judgment.
Adrian Whitfield QC and Hilary Watson (instructed by the City Secretary) for the local authority.
UR Sood (instructed by Smith Partnership) for the father and mother.
Alison Ball QC (instructed by Irwin Mitchell) for the Official Solicitor.
MUNBY J.[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 three. 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, NA.
[2] It is common ground that MAB is a patient within the meaning of CPR Pt 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[2004] EWHC 2808 (Fam), [2005] Fam 326 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...
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