England and Wales Court of Protection Decisions

COURT OF PROTECTION

		Royal Courts of Justice Strand, London, WC2A 2LL
		12th November 2013

The Honourable Mr Justice Keehan:

Introduction

1. This is the final hearing of an application by a local authority ('the authority') in the Court of Protection in respect of the capacity of the Respondent to litigate and to make decisions in relation to her life.
2. The Respondent, SY, is a 19 year old young woman who has mild to moderate learning disability and is extremely vulnerable. Since 27 June 2012 she has resided at a specialist residential home, 'the placement'. Her deprivation of liberty is authorised until 7 March 2014 under Schedule A1 of the Mental Capacity Act 2005 ('the 2005 Act').
3. In that placement she lives with five other people, appears settled, has a generally good relationship with the staff and recently began a course at a local college which she enjoys.
4. In these proceedings SY is represented by the Official Solicitor as her litigation friend.

Issues

5. The authority has commissioned a number of statutory and expert assessments. In light of the views expressed in those assessments and reports the authority and the Official Solicitor invite the court to approve an order:

a. declaring that SY lacks capacity to litigate;

b. declaring that she lacks capacity to make decisions (i) as to her residence; (ii) as to the contact she should have with others; (iii) as to the care package she should receive; and (iv) about entering into a contract of marriage;

c. declaring it is lawful and in SY's best interests (i) to reside at the placement or such placement identified by the authority in accordance with her assessed needs; (ii) to have contact with others as shall be agreed between the authority and the other person with whom it is intended she should have contact and (iii) to receive a care package in accordance with her assessed needs;

d. in the event SY absconds from the placement and/or refuses to return to it, it shall be lawful and in her best interests for reasonable and proportionate measures to be taken to return her to the placement, including measures which may amount to a deprivation of liberty; and

e. other consequential directions.

6. Further, I am invited by both parties to invoke the inherent jurisdiction of the High Court to make a declaration that the ceremony in which SY was involved on 10 June 2012 with a young man, TK, was a non-marriage.

Background

7. SY and her family have been known to the authority since March 2005 when she was 11 years old. There were concerns about her non-attendance at school, issues of domestic violence and the fact that SY was staying out at night at the homes of older males which resulted in SY and her siblings being placed on the At Risk Register. She was subsequently made the subject of a care order in 2007 which ceased to have effect upon SY attaining her majority in December 2011.
8. SY has been assessed as having an IQ of 49. She is considered to be a vulnerable young woman with a limited capacity to reason intellectually or to problem solve. There have been numerous incidents involving SY over the last few years including underage sexual relations, physical and sexual assaults – including alleged rapes, threats made to others, the witnessing of domestic violence and challenging behaviour.
9. She has previously been reluctant to assist the police with their investigations and has, until recently, refused to engage with mental capacity assessments.
10. SY, sadly, has a history of disrupted placements. Her foster placement broke down in June 2011 and she moved to supported accommodation. In August 2011 she moved to live in semi-independent accommodation, namely W. As a result, however, of the risk of sexual exploitation she moved in October 2011 to supported lodgings. In June 2012 she moved to her current placement.
11. In August 2011, when living at W, SY began a relationship with a then 23 year old man, TK. The authority only became aware of this relationship in October 2011. The police became involved in around November of that year after SY alleged to her social worker and care workers that she was being sexually abused and subject to sexual offences by other males.
12. These allegations, including an allegation of rape, led to SY being moved on an emergency basis to supported lodgings because of her vulnerability living at W. A strategy meeting held on 22 November 2011 concluded that SY lacked capacity to identify that she was being abused or exploited.
13. On 23 January 2012 her then carers notified the authority that she had returned from TK's property in a nearby city and told them that TK had locked her in his house when he went to work, she and TK had been visited by a 'lawyer' about a housing application, that they were to marry in six months time and that TK had taken her to a registry office to obtain a copy of her birth certificate. The carers reported they had overheard TK speaking to SY on the telephone in a controlling and aggressive manner.
14. Social workers attempted to undertake a capacity assessment but SY refused to co-operate. For the same reasons a clinical psychologist, Dr. C, was unable to assess formally her capacity to litigate and/or to make decisions as to residence, contact, marriage and sexual relations but concluded it was unlikely she was able to do so.
15. On 24 May 2012 the authority and the police told TK that SY had a learning disability and was unlikely to have capacity to consent to sexual relations and marriage and that an offence would be committed. Notwithstanding this advice, on 10 June 2012 TK and SY entered into a purported Islamic marriage ceremony at his home.
16. TK was born in Pakistan. He came to the United Kingdom on 7 September 2009 as a student. His application to continue his studies was refused and his appeal was dismissed on the basis of a tribunal finding that he had submitted two forged documents and had attempted to deceive the immigration authorities. His rights of appeal were exhausted in June 2011. It is in this context that he began a relationship with SY in August 2011.
17. On or around 15 June 2012 TK was arrested for immigration offences and detained by the UK Border Agency pending his deportation. He claimed asylum on the basis that he feared he would be killed by his family who disapproved of his marriage to a white British woman, namely SY.
18. Following an adult case conference on 20 June 2012, SY moved to her current placement on 27 June 2012. The following day an associate of TK attended the placement and attempted to gain entry for the purpose of seeking SY's signature on a document allegedly prepared to assist TK with his asylum claim. In light of the risks to SY of harm and exploitation, an urgent authorisation was issued and then a standard authorisation to deprive her of her liberty at the placement was granted.
19. On 17 July 2012 TK's appeal against the refusal to grant him asylum was dismissed on all grounds. His relationship with SY lay at the heart of the case he sought to mount. The tribunal judge found that "The relationship, if there is one, does not have the necessary qualities of commitment, depth and intimacy which would be necessary to demonstrate family life for the purposes of article 8…". He later observed that "viewed objectively her best interests are likely to be served by there being no further interference by [TK] and his friends with the care arrangements which social services have put in place". He was found not to have given a truthful account in his evidence and not to be a credible witness.
20. TK was served with the papers in this matter but did not respond to the same. He was deported in August 2012. He maintained some telephone contact with SY up until her mobile telephone was broken in March 2013. Her social worker reports that SY has not shown any distress at her loss of contact with TK and has not made any significant mention of him in her monthly review meetings.

Expert Evidence

21. The assessment of capacity (COP 3) was completed by SY's social worker, NU. It is a full, detailed and helpful assessment of SY's capacity to make decisions as to her residence, contact with others, her care needs and to enter into a contract of marriage.
22. I am told by counsel that it is more usual for the assessment of capacity to be undertaken by a medical practitioner or a psychiatrist. The assessment in this case demonstrates that an appropriately qualified social worker is eminently suited to undertake such capacity assessments. I commend the practice which I hope will be followed in appropriate future cases.
23. Dr. M, a consultant psychiatrist in learning disability, was jointly commissioned to undertake a detailed assessment of SY's capacity to litigate, to make decisions about her residence, contact and care and, importantly, about her capacity to enter a contract of marriage and to consent to sexual relations.
24. He has provided a substantive report of 9 January 2013 and an addendum report of 3 March 2013. Both of his reports are comprehensive in their analysis of SY's capacity, of her vulnerability and of her care needs. He concluded that SY lacked the capacity to litigate and the capacity to make any of the above mentioned decisions, save he was of the view that she did have the capacity to consent to sexual relations.
25. Counsel submitted it would be more appropriate, rather than disclosing the totality of his reports to SY's Relevenat person's representative, that a summary be drafted by counsel, and then disclosed to the relevant person's representative. It was submitted that Dr. M's reports contained some particularly confidential and personal information which it would be inappropriate to disclose further. I agree.

Discussion – Capacity & Best Interests

26. In considering this case I have had regard to the provisions of ss.1-4 and 15 of the 2005 Act.
27. I have taken account of the statements and reports in the trial bundle and, especially the capacity assessment report prepared by NU and the reports of Dr. M.
28. Happily it appears that after particularly difficult and turbulent experiences over, at least, the last eight years, SY is now settled and contented in her current placement. She is enjoying her college course which she embarked on a few months ago. Her behaviour is now such that the previous regime of 2:1 care has been reduced to 1:1 with a care worker for educational settings and group leisure activities . It is pleasing to note that SY has been successfully assisted with an appropriate placement, care package and support to be leading a stable and happy life with positive experiences for her.
29. The orders sought, as summarised at paragraph 5 above, are agreed as between the authority and the Official Solicitor.
30. In all of the circumstances I am wholly satisfied that SY lacks the capacity to litigate and lacks the capacity to make decisions about her residence, her contact with others, her care needs and entering a contract of marriage. On the basis of Dr. M's opinion, I am satisfied that SY has the capacity to consent to sexual relations.
31. Accordingly I am satisfied that the current placement of SY and the care package she receives are in her best interests. I am content to make the orders sought by the authority.

Discussion – Declaration of Non-Marriage

32. There is no provision in the 2005 Act to make a declaration in respect of the ceremony in which SY and TK participated on 10 June 2012.
33. The issue is whether the Official Solicitor should make a freestanding application for a declaration or whether the court, of its own motion, should invoke the inherent jurisdiction of the High Court and make a declaration of non-marriage. The parties invite me to take the latter course.
34. The ceremony was conducted at TK's home by a Mr MA. He is not a registrar and the ceremony did not take place at an authorised place. A document entitled 'Marriage Certificate according to Islamic Laws' appears in the court bundle [A35].
35. It is submitted by counsel for the authority and for the Official Solicitor that the ceremony failed to comply with essential requirements of the Marriage Acts 1947-1986 in that:

a. it was not conducted in a registered place; and

b. it was not conducted by a registrar or by a priest according to Anglican rites.

36. Furthermore it is submitted that the evidence indicates that in all probability the ceremony was not intended to attract the status of a marriage under English law being a ceremony undertaken to create a marriage expressly according to Islamic laws.
37. In A-M v. A-M (Jurisdiction: Validity of Marriage) [2001] 2 FLR 6, Hughes J. (as he then was) considered the status of an Islamic marriage ceremony conducted in England. He said, at paragraph 58,

"It is clear, however, that the present ceremony did not begin to purport to be a marriage according to the Marriage Acts, with or without fatal consequences. It was not conducted under the rites of the Church of England, nor was there ever any question of an application for, still less a grant of, a superintendent registrar's certificate, and it was conducted in a flat which was clearly none of the places which were authorised for marriage. The ceremony was consciously an Islamic one rather than such as is contemplated by the Marriage Acts……It is not any question of polygamy which ipso facto takes this ceremony outside s. 11, but the fact that it in no sense purported to be effected accordingly to the Marriage Acts, which provide for the only way of marrying in England. …It follows that I hold that the 1980 ceremony is neither a valid marriage in English law nor one in respect of which jurisdiction exists to grant a decree of nullity".

38. The self-same facts and considerations apply in this case in relation to the ceremony conducted on 10 June 2012.
39. In the case of Hudson v. Leigh (Status of Non-Marriage) [2009] 2 FLR 1129, a ceremony was undertaken in South Africa which the parties had deliberately modified to avoid strict compliance with local formalities. They intended a civil ceremony would be conducted some weeks later in England, but it never took place. Bodey J. held, at paragraphs 80-84,

"As to Mr Leigh's amended petition, Mr Mostyn has abandoned the secondary prayer in it for a declaration that "…no marriage between the parties subsisted on the 23^rd January 2004 or thereafter". That had seemingly been inserted into the pleading by amendment and as an afterthought so as to try to bring Mr Leigh's case into S55 (1) (c), as being 'a declaration that the marriage did not subsist on a date so specified in the application'. I am clear that the making of such a declaration would have been wholly impermissible as being a device to get around S58 (5) (which outlaws any declaration that a marriage was at its inception void) and I would therefore have dismissed that prayer had it stood alone. There remains Mr Mostyn's application for a declaration that the Cape Town ceremony did not effect a marriage at all….It goes without saying that, if appropriately worded, the mere dismissal of Miss Hudson's petition for divorce and alternatively for nullity would inform any reasonably knowledgeable interested party that there was not a marriage between herself and Mr Leigh. There would indeed be nothing to prevent a specific recital to that effect. That would not be entirely satisfactory, however, since it would not theoretically bind third parties and problems might arise if either party wanted to marry here or abroad, or otherwise needed to demonstrate his or her status. A declaration, if permissible, would be in the public interest of creating certainty and would be beneficial and convenient for both parties. In my judgment, the making of such a declaration is not outlawed by S58 (5) if and for so long as it is made to declare that there never was a marriage, as distinct from being a declaration (which is not permitted) that a given marriage was void at its inception. When the facts dictate the latter (which, as found here, they do not) then the only route to resolution is nullity. Nor do I find persuasive Mr Le Gryce's argument about the former practice of the ecclesiastical courts. For so long as the High Court has an inherent jurisdiction, as it does, and has the authority of the RSC to make free-standing Declarations in appropriate circumstances, then such jurisdiction needs within reason to be flexible and to move with the times. I cannot accept that it is stuck in the mid-19^th century. Were it so, then countless orders must have been made (for example in the management of life-support systems) without jurisdiction. Accordingly I propose to make a Declaration that the Cape Town ceremony of 23.1.04 did not create the status of marriage as between Miss Hudson and Mr Leigh."

40. Bodey J., in a later case, considered the status of an Islamic marriage ceremony conducted in the 'husband's' London flat in the presence of an imam. He held there had been a wholesale failure to comply with the formal requirements of English law and there was nothing that could be susceptible to a decree of nullity under s. 11 of the Matrimonial Causes Act 1973. He made a declaration of non-marriage: El Gamal v. Al Maktoum [2012] 2 FLR 387.
41. On the basis of those authorities I am satisfied that the ceremony which took place between SY and TK on 10 June 2012 did not comply with the formal requirements of the Marriage Acts 1947-1986. I find it was a non-marriage.
42. What is then to be done? The Official Solicitor on behalf of SY could make a freestanding application pursuant to the inherent jurisdiction of the High Court to seek a declaration of non-marriage. Alternatively, the court in these proceedings could, of its own motion, invoke the inherent jurisdiction and make a declaration of non-marriage.
43. In the case of XCC v. AA and Others [2012] EWHC 2183 (COP), Parker J. was invited to make a declaration of non-recognition of a marriage within Court of Protection proceedings by invoking the inherent jurisdiction of the High Court. She said, at paragraphs 54 and 85,

"The protection or intervention of the inherent jurisdiction of the High Court is available to those lacking capacity within the meaning of the MCA 2005 as it is to capacitous but vulnerable adults who have had their will overborne, and on the same basis, where the remedy sought does not fall within the repertoire of remedies provided for in the MCA 2005. It would be unjustifiable and discriminatory not to grant the same relief to incapacitated adults who cannot consent as to capacitous adults whose will has been overborne…..I am satisfied that once a matter is before the Court of Protection, the High Court may make orders of its own motion, particularly if such orders are ancillary to, or in support of, orders made on application. Since the inherent jurisdiction of the High Court in relation to adults is an aspect of the parens patriae jurisdiction the court has particularly wide powers to act of its own motion."

44. I, respectfully, agree.
45. Parker J. held that the provisions of the 2005 Act were not to be imported in to the inherent jurisdiction evaluation, the decision was not dictated only by considerations of best interests but public policy considerations were also relevant [paragraphs 56-57 and 71-76].
46. It is plain on the facts of this case, especially taking account of the immigration judgment handed down on 17 July 2012 in respect of TK's asylum appeal, that TK exploited and took advantage of SY for the purpose of seeking to bolster his immigration appeal and his prospects of being permitted to remain in this country. The ceremony he and SY engaged in on 10 June 2012 formed the bedrock of that objective.
47. TK well knew that SY had learning difficulties and was a vulnerable young woman. He knew that the police and the care services were extremely concerned about his involvement with SY.
48. I can reach no other conclusion than he deliberately targeted SY because of her learning difficulties and her vulnerability. The courts will not tolerate such gross exploitation.
49. Fortunately, it would appear that TK's involvement in SY's life is not now causing her emotional distress or harm. It was, however, yet another abusive and exploitative episode in her life which could have had serious physical, emotional and psychological consequences for her.
50. In my judgment it is important for SY that a declaration of non-marriage is made in respect of the June 2012 ceremony. There are also, in my judgment, compelling reasons of public policy why sham 'marriages' are declared non-marriages. It is vital that the message is clearly sent out to those who seek to exploit young and vulnerable adults that the courts will not tolerate such exploitation.

Conclusions

51. It is plain from all of the evidence before me that SY lacks the capacity to litigate and the capacity to make decisions about her residence, her contact with others, her care package and to enter a contract of marriage. I find the care package proposed by the authority and the orders sought are in SY's best interests. Accordingly, I make all of the orders sought.
52. I am satisfied that, on the facts of this case, the appropriate and proportionate course is for the court, of its own motion, to invoke the inherent jurisdiction of the High Court and to make the declaration that the ceremony in which SY was involved on 10 June 2012 was a non-marriage.