XCC v AA and Others
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Parker |
| Judgment Date | 26 July 2012 |
| Neutral Citation | [2012] EWHC 2183 (COP) |
| Docket Number | Case No: 11747829 |
| Court | Court of Protection |
| Date | 26 July 2012 |
[2012] EWHC 2183 (COP)
IN THE COURT OF PROTECTION
AND IN THE INHERENT JURISDICTION OF THE HIGH COURT
BIRMINGHAM DISTRICT REGISTRY
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Parker
Case No: 11747829
and
and
and
Mr Jonathan Cowen of Counsel (instructed by Legal Services) for the Applicant XCC
Mr Jeremy Weston QC (instructed by Osborne and Company) for the Respondent AA
Ms Nandini Dutta of Counsel (instructed by Kauldhar and Company) for the Respondents CC and BB
Ms Nicola Greaney of Counsel (instructed by Anthony Collins Solicitors) for DD by her litigation friend the Official Solicitor
Mr Bilal Rawat as Advocate to the Court
In October 2010 I heard substantive proceedings about DD in the Court of Protection.
DD has a very significant degree of learning disability, little language, very little comprehension of anything other than simple matters, and needs assistance with almost all aspects of her daily life. Her parents are originally from Bangladesh, but have lived in this country for many years and brought up their family here. All family members are British citizens.
In 2003 DD was married in Bangladesh by arrangement to AA, said to be her cousin (although DD's parents differ as to whether he is a cousin on the paternal or maternal side). After two failed attempts to gain entry in which he was “sponsored” by DD (the immigration judge noted that her capacity to do so was very much in doubt) he was finally successful in obtaining a spousal visa and entered in 2009. He moved in with DD and her parents to their home in a city in England, sharing a bedroom and a bed with DD. DD's brother, English speaking who is in effect the head of the family, lives in the same street with his family. He attended the court hearings and although not a party has given undertakings upon which he has had the opportunity to take legal advice.
The fact of DD's marriage eventually came to the attention of the learning disabilities team, which had only recently been created, of the local authority where DD lives (XCC), and very significant concerns arose as to DD's welfare as a result of which the Police obtained a Forced Marriage Protection order, which order continued pending an application by XCC to the Court of Protection. Within those proceedings the Official Solicitor was appointed as litigation friend for DD. Dr Milne, consultant psychiatrist in learning disabilities, was instructed to assess DD's capacity to marry and have a sexual relationship, and her capacity generally.
AA remained in the family home, although he was made aware by the Circuit Judge at the first substantive hearing in the Court of Protection in September 2009 that to have sexual relations with DD was likely to constitute a criminal offence due to her incapacity to consent. By court order, since 2010, he is no longer permitted to live at DD's family home and has been ordered, or has undertaken, not to have any form of contact with her.
It is unfortunate that the social services department of XCC had not been previously alerted to the fact that a woman with severe learning difficulties had been married abroad, and that she had needs with which she and her family required assistance. In a judgment given in December 2010, I explored the reason why the case had slipped through the safety net. XCC has accepted its failures. For their part, DD's parents did not perceive that there was any problem with DD being married and neither had the family's GP, whose advice had been sought on at least three occasions about marriage and pregnancy for DD over the years.
After a hearing in 2010, in which I heard from a number of witnesses including Dr Milne and an independent social worker, Diane Sugden, as well as the XCC social worker, and DD's mother, and AA, I made declarations, in the face of very strong resistance from DD's parents and AA:
i. DD lacks the capacity to marry.
ii. DD lacked the capacity to marry in 2003 when the marriage ceremony took place in Bangladesh.
iii. DD lacks the capacity to consent to sexual relations.
iv. DD lacks capacity to make decisions as to where she should live.
v. DD lacks capacity to make decisions regarding her care.
vi. DD lacks capacity to make decisions regarding with whom she should or should not have contact.
vii. It is unlawful for AA or any other person to engage in sexual activity with DD (including sexual touching).
viii. It is at the present time in DD's interests to reside with her parents.
ix. It is not in DD's interests to reside with AA.
x. It is not in DD's interests that AA should provide her with care.
xi. It is not in DD's interests to have contact with AA.
xii. From 2003 it was unlawful for AA to engage in sexual activity (including sexual touching), and it continues to be unlawful for AA to engage in sexual activity (including sexual touching) with DD.
I made further findings that in 2009 whilst DD was a patient in a local hospital (DD has various health problems), and in spite of his denials, AA had been physically very rough and abusive to DD on two occasions, smacking her head, shaking her, and yanking her eyelid, even though I accepted that he acted in this way in a misguided attempt to assist medical staff. I accepted also that AA told hospital staff that this kind of behaviour was the usual practice at home to make sure that DD did as she was told.
DD lives in a very traditional family in a close-knit community not integrated, by and large, into the non-Bangladeshi local community. Her parents are very largely insulated from mainstream English society and are mistrustful of non-Bengalis. They do not communicate well in English: her mother understands and speaks almost none. They are devout Muslims. I found that DD is a loved and valued member of her family and that her parents are devoted to her. The family is bewildered and disconcerted that they are seen as having done anything wrong, and that what they have done may be seen as contrary to DD's best interests. In my December 2010 judgment I accepted that in DD's parents' culture it is considered a duty of parents to arrange for their children to be married and that disabled children are found spouses so that they can be provided for when the parents are unable to do so. Whether there was some other motive for the marriage such as family or other obligations in addition I was not able to determine.
I was not prepared to find, as invited, that AA who came to this country for the express purpose of working, genuinely wished to be married to DD as opposed to having the benefit of a spousal visa.
As part of the decision making process I was asked to consider what should be the next step in relation to the marriage. In accordance with court directions the Official Solicitor had commissioned reports from Professor Rehman, Professor of Law and head of the law school at Brunel University, and an expert in Islamic law, International Human Rights and Constitutional Law for that hearing.
In my judgment given in December 2010 I stated:
“[122] This case demonstrates, as Wall LJ said in KC v Anor v City of Westminster Social & Community Services Department & Anor [2008] EWCA Civ 198, a case which raised similar issues,
‘[45]…a profound difference in culture and thinking between domestic English notions of welfare and those embraced by Islam. This is a clash which this court cannot sidestep or ignore. To the Bangladeshi mind…the marriage of IC is perceived as a means of protecting him, and of ensuring that he is properly cared for within the family when his parents are no longer in a position to do so.
[46] To the mind of the English lawyer, by contrast, such a marriage is perceived as exploitative and indeed abusive. Under English law, a person in the position of IC is precluded from marriage for the simple reason that he lacks capacity to marry. No English Registrar of marriages could or would have contemplated celebrating a marriage between IC and NK, for the simple reason (amongst others) that no such Registrar could have issued a certificate of satisfaction that there was no impediment to the marriage. Furthermore, as IC is incapable of giving his consent to any form of sexual activity, NK would commit a criminal offence in English law by attempting to have sexual intercourse, or indeed having any form of sexual contact with him.”
In KC v Westminster the Court of Appeal made a declaration that the marriage of an incapacitated adult, in that case a telephone marriage, but held to have been celebrated in Bangladesh and valid according to the law of that jurisdiction, was not recognised in England and Wales.
At the end of my judgment I said:
“ Consequences of declaration of lack of capacity to consent to marriage or sexual relations: What steps, if any, should be taken in respect of the marriage
[172] DD's parents and AA begged me not to make a declaration that DD did not have capacity. They said that there would be considerable stigma in Bangladesh for them if the marriage were annulled.
[173] Section 12 (c) of the Matrimonial Causes Act 1973 provides that a marriage shall be voidable on the ground that “either party did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise”. Section 55 of the Family Law Act 1986 allows any person to apply for a declaration that a marriage was at its inception a valid marriage, but not a declaration that the marriage was at its inception an invalid marriage: see KC v City of Westminster [2008] EWCA Civ 198. The only available step would be a petition for nullity. The Court of Appeal confirmed that the High Court may, under its inherent jurisdiction, be entitled to refuse to recognise a marriage contracted where one party was...
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