Xcc v Aa and Others
| Jurisdiction | England & Wales |
| Judgment Date | 2013 |
| Year | 2013 |
| Date | 2013 |
| Court | Court of Protection |
Marriage – Validity – Declaration – Person lacking capacity marrying abroad – Whether court having jurisdiction to make declaration of non-recognition of valid marriage in England and Wales.
In 2010, on an application by the local authority to the Court of Protection, the judge made declarations that DD, a woman with severe learning difficulties who had been married overseas to AA, lacked capacity to marry (and had lacked capacity to marry when the marriage ceremony took place), to consent to sexual relations, to make decisions as to where she should live, to make decisions regarding her care, and to make decisions regarding with whom she should or should not have contact. The judge also made declarations that it was unlawful for AA or any other person to engage in sexual activity with DD, that it was in DD’s interests to reside with her parents, that it was not in her interests to reside with AA or that AA should provide her with care, or that she have contact with AA. Directions were given for further assessment for provision of support for DD and for a hearing as to the issue of marital status. The Official Solicitor, DD’s litigation friend, took the view that nullity proceedings would not be in DD’s interest. An advocate to the court was appointed. The advocate to the court supported the making of a declaration of non-recognition of marriage. AA and DD’s family opposed any formal non-recognition of marriage. The Mental Capacity Act 2005 set out the considerations for determining for the purposes of the 2005 Act what was in a person’s ‘best interests’; the person making the determination had to consider the person’s past and present wishes and feelings and ‘the beliefs and values that would be likely to influence his decision if he had capacity’ and he had to take into account the views of ‘anyone engaged in caring for the person or interested in his welfare’. The court considered issues which included: the jurisdiction to make a declaration of non-recognition of marriage; whether declarations were confined to ‘best interests’ considerations; the relevance of ‘welfare’; the position of DD’s family; and the relevance of public policy considerations.
Held – The court would declare (i) that the marriage of DD and AA, celebrated in and valid according to the law where the marriage had taken place, was not recognised as a valid marriage in England and Wales; and (ii) that it was in DD’s best interests for a nullity application to be issued. The protection or intervention of the inherent jurisdiction of the High Court
was available to those lacking capacity within the meaning of the 2005 Act as it was to capacitous but vulnerable adults who had had their will overborne, and on the same basis, where the remedy sought did not fall within the remedies provided for in the 2005 Act; it would be unjustifiable and discriminatory not to grant the same relief to incapacitated adults who could not consent as to adults with capacity whose will had been overborne. Under the inherent jurisdiction, the court was not confined to making a decision which was dictated by only considerations as to best interests, whether applying best interests considerations under the 2005 Act or more general welfare considerations. Although lacking capacity, DD did not lack the right to autonomy. The court was entitled to grant a declaration of non-recognition of marriage on the specific ground that DD’s consent had not been given; that was not a welfare or best interests decision. The view of DD’s family that her marriage was not contrary to her interests could not affect the decision of the court; that would create implicit recognition of a marriage which had been forced on her within the definition of the Forced Marriage (Civil Protection) Act 2007. Moreover, since DD had no concept of marriage, she could have no culturally determined attitude to marriage. Furthermore, since the issue of capacity to consent had already been determined, the wishes of the parties could not be relevant. The court did not need to take into account beliefs and values that would be likely to influence DD’s decision if she had capacity, whether under the best interests provisions of the 2005 Act or otherwise, and the court did not accept that, if she had capacity, DD would agree with her parents that she should have married notwithstanding her incapacity and that the marriage should be kept alive in name. A general principle had been laid down that public policy came into play when considering whether a marriage of a party who did not have capacity to consent should be recognised. Once a matter was before the Court of Protection, the High Court could make orders of its own motion, particularly if such orders were ancillary to, or in support of, orders made on application. As the inherent jurisdiction of the High Court in relation to adults was an aspect of the parens patriae jurisdiction, the court had particularly wide powers to act on its own motion. A declaration of non-recognition performed a wider function than a decree of nullity since it extended to the whole duration of the marriage. The Court of Protection had the power to decide that it was in DD’s best interests for nullity proceedings to be instituted (see [30], [32], [50], [54], [56]–[61], [65]–[67], [70], [71], [80], [85], [88], [93]–[95], below); City of Westminster Social and Communities Dept v C[2008] 2 FCR 146 applied.
Cases referred to in judgmentA (Care Proceedings: Asylum Seekers), Re[2003] EWHC 1086 (Fam), [2003] 2 FLR 921.
A local authority v A (test for capacity as to contraception)[2010] EWHC 1549 (Fam), [2011] 2 FCR 553, [2011] 3 All ER 706, [2011] 2 WLR 878.
A local authority v DL[2012] EWCA Civ 253, [2012] 3 FCR 200, [2012] 3 All ER 1064.
B v I [2010] 1 FLR 1721.
Brook v Brook (1861) 9 HL Cas 193, (1861) 11 ER 703, [1861–73] All ER Rep 493, HL.
Cheni (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 185.
F (adult: court’s jurisdiction), Re[2000] 3 FCR 30, [2000] 3 WLR 1740, CA.
MN, Re[2010] EWHC 1926 (Fam).
P (Forced Marriage), Re[2010] EWHC 3467 (Fam), [2011] 1 FLR 2060.
P v R (forced marriage: annulment: procedure) [2003] 1 FLR 661.
S v S[2008] EWHC 2288 (Fam), [2009] 2 FCR 415.
SA (vulnerable adult with capacity: marriage), Re[2005] EWHC 2942 (Fam), [2007] 2 FCR 563.
Sottomayor v De Barros (1877) 3 PD 1, [1874–80] All ER Rep 94, CA.
X City Council v MB[2006] EWHC 168 (Fam), [2007] 3 FCR 371, [2006] 2 FLR 968.
ApplicationDD, a woman with severe learning difficulties who had been married abroad, resided in the area for which XCC was the local authority. XCC made an application to the Court of Protection in relation to DD. In December 2010 Parker J made various declarations as to DD’s capacity, including that she lacked the capacity to marry and that she had lacked capacity to marry when the marriage ceremony abroad had taken place. A hearing was listed for the issue of marital status and DD’s future welfare to be considered. The other parties to the application were DD’s husband, AA, and her parents BB and CC. DD appeared by her litigation friend, the Official Solicitor. Parker J requested the Attorney General in accordance with CPR 39.8 to appoint an advocate to the court. The facts are set out in the judgment.
Jonathan Cowen (instructed by Legal Services) for XCC.
Jeremy Weston QC (instructed by Osborne & Co) for AA.
Nandini Dutta (instructed by Kauldhar & Co) for CC and BB.
Nicola Greaney (instructed by Anthony Collins) for for DD.
Bilal Rawat (instructed by the Treasury Solicitor) as advocate to the court.
26 July 2012. The following judgment was delivered.
PARKER J.[1] In October 2010 I heard substantive proceedings about DD in the Court of Protection.
[2] 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.
[3] 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 English speaking brother, 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.
[4] 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.
[5] 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...
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