Capacity: sex and marriage

What’s the meaning and essence of marriage? To what extent can the courts legally interfere with an individual’s right to sexual relations? Two separate rulings of the Court of Protection provide important clarification on these fundamental issues that go to the very heart of what of it means to be human.

The protected person (P) in Mundell v Name 1 [2019] EWCOP 50 had previously been awarded a significant sum in personal injury compensation. This followed an accident, while he was working as a refuse collector, in which he lost his leg.

Now 28 years old, P had also suffered learning difficulties from childhood and was incapable of looking after his property and affairs. A deputy was appointed for him in 2014 and the value of the estate being managed by the deputy was around £1.5m.

In spite of his learning difficulties and lacking the capacity to managing his affairs, he has not lacked testamentary capacity to make a will. In fact, he made a will in October 2017 leaving his estate to his parents.

P also had a partner with whom he had been in a relationship for three years. His partner has two children of her own and they live together as family. They wanted to get married and at the date of the COP hearing in September 2019, the wedding was set for the forthcoming Saturday.

The deputy applied for a declaration that P lacked the capacity to marry. He was concerned that if the marriage broke down and P’s partner applied for financial provision, P could be left unable to provide for himself financially.

In his witness statement, the deputy expressed his concerns regarding P's financial understanding of the imminent marriage. For example, P stated at least once that he did not want to proceed with the marriage. Also, in his will (which would be revoked on marriage) he clearly stated he did not want anything left to his partner.

Mostyn J considered the legal framework and (some quite historical) authorities on marriage and capacity. Disagreeing in some respects with the “younger Munby”, he said he did not accept that “the essence of marriage is for two people to live together and to love one another, although I would accept that that is how people would normally expect their married life to commence and to be conducted”. He said the fact that it may be empirically the norm does not mean they are essential features of the marriage contract.

He went on to set out the legal test for the threshold of capacity necessary to be able to contract a marriage. He stated: “The right to form a marriage is a fundamental right and has been so for centuries. If one was to draw up a hierarchy of human rights, one would have the right to enter into a marriage and found a family as being near the top of the list because the right to form a marriage has been in play in our society since the very dawn of time.”

He came to the conclusion that it would be “inappropriate and … arguably dangerous to introduce into the test for capacity to marry a requirement that there should be anything more than a knowledge that divorce may bring about a financial claim”.

On his own evidence, Mostyn J found that P plainly understood this. But he pointed out that what the extent of that financial claim should be “is a mystery to even the most sophisticated and well educated of lay, as well as legal, persons and to suggest that there is needed an appreciation of what the result of a financial remedy claim might be, would be to set the test for capacity far too high”.

He ruled that P did have the necessary appreciation of the financial ramifications of a breakdown of marriage and he had the capacity to contract the marriage as planned. The deputy’s application failed.

Sexual relations
In A Local Authority v H (No 2) [2019] EWCOP 51, the COP had to decide if P had capacity in relation to sexual relations. Back in 2011, it had ruled she lacked capacity to make her own decisions about (among other things) residence and consent to sexual relations and contraception.

Since then, P has made considerable progress and even now lives on her own in her own flat (though with some social services oversight).

Giving his ruling, Sir Mark Hedley said that when he heard the original case the question of capacity to consent to sexual relations was highly controversial and a number of judges (including himself) had attempted a formulation of the test to be used.

The Court of Appeal has now clarified the area in Re M (An Adult) [2015] Fam 61 thus: "On the basis that we have described, we hold that the approach taken in the first instance decisions … in regarding a test of capacity to consent to sexual relations as being general and issue-specific rather than personal or event-specific represents the correct approach within the terms of the 2005 Act."

Sir Hedley commented that it is “a trite but important observation” that in the field of human relationships, sexual relationships are not as simple as that. They have far more than a physical, emotional and ethical component.

But as the Court of Appeal observed in that case there is a limit to what the court can do: "We accept the submission made to us to the effect that it would be totally unworkable for a local authority or the Court of Protection to conduct an assessment every time an individual over whom there was doubt about his or her capacity to consent to sexual relations showed signs of immediate interest in experiencing a sexual encounter with another person. On a pragmatic basis, if for no other reason, capacity to consent to future sexual relations can only be assessed on a general and non-specific basis."

That, he said, must now be treated as a settled statement of law.

Turning to P’s case, on the facts he said it is right that she should be given the maximum freedom that consenting to sexual relations is intended to bestow. However, the court also has “an obligation to remember its protective role in relation to any person with whom she might have sexual relations, particularly given the history of this particular case” (which P made clear she fully understood).

Sir Hedley acknowledged that the local authority, particular the carers on site, do not have any responsibility for how P and her friends choose to behave once the front door has closed behind them.



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