IN THE MATTER OF THE MENTAL CAPACITY ACT 2005
AND IN THE MATTER OF M
Strand, London, WC2A 2LL
B e f o r e :
|- and -
LONDON BOROUGH OF HAMMERSMITH AND FULHAM (2)
M (by her litigation friend, the Official Solicitor) (3)
Kerry Bretherton QC (instructed by Scott-Moncrieff and Associates) for the First Respondent
Ranjit Bhose QC (instructed by Local Authority Solicitor) for the Second Respondent
Andrew Bagchi QC (instructed by Simpson Millar) for the Third Respondent
Stephen Simblet (instructed by Campbell-Taylor) for the Fourth Respondent
Hearing dates: 26 to 28 June, 3 to 5 July, 28 July 2017
Crown Copyright ©
The Honourable Mr Justice Baker :
(3) The proceedings before me and a summary of the issues
(5) The findings sought and the parties' positions in summary
(6) The law applicable to fact-finding hearings
(7) The principal witnesses
(8) Financial allegations against M's father, AB
(9) The circumstances of the marriage ceremony on 15 August 2013:
(a) MS's immigration status
(b) the introduction, proposal and arrangements for the marriage
(c) the events of 15 August 2013
(10) The removal of M from AB's address and its aftermath
(11) Allegations against HT
(12) Further discussion and conclusions on findings
(13) Declarations and orders following findings:
(a) Declaration of non-marriage
(b) Should the proceedings come to an end?
(c) Consequential orders.
The proceedings before me and a summary of the issues
(1) Does M have capacity to make decisions as to her care, residence and the contact she has with other people, and also to marry?
(2) What findings should the court make on the allegations and cross- allegations made by AB and HT?
(3) If M lacks capacity, should the court make any declarations and order in her best interests in the light of its findings on those allegations and cross-allegations, and should the proceedings now come to an end?
(1) Current diagnosis and condition
(c) Capacity assessment in 2017
(i) Residence Dr Andrews reported that M was able to acknowledge that she currently resided on a named hospital ward, that she had formerly lived in Northampton and Fulham, but was unable to account for or recall the reasons, circumstances or timing of these various places of residence. She offered various views, including that "it had been great" to move with her aunt to London but without being able to say why, other than she felt "supported by her". M acknowledged that she had once lived with AB but that she was "finished with Northampton" and did not wish to return there. She struggled to describe the relationship with AB beyond stating, after considerable mental effort, that he was her father. She also repeatedly indicated that she considered that she had no home, stating at various points that she wished to return to Somalia, or Nairobi, or to her aunt in Fulham, without giving reasons. When presented with more neutral, general information about how an individual might decide where to live, she remained wholly unable to attend to information even with careful rehearsal.
(2) Deciding on care arrangements M repeatedly indicated that she was "finished with medication at hospital" and that, if given the choice, would leave. She said she required no support and was now ready to resume independent life. Dr Andrews found that her insight into her mental health needs remained significantly impaired. She was unable to attend to, recall or weigh up basic information specific to the role and effects of her new medication.
(3) Deciding on contact with others M indicated that she remained pleased to have direct contact with her aunt. She acknowledged receiving letters from AB. But she became significantly distressed, thought-disordered and preoccupied when invited to consider whether she might wish to respond to those letters. When presented with some more neutral, general information about how an individual might decide on whether to choose to have contact with others, she was unable to attend to or process the information.
(4) Deciding whether to marry M could not immediately recall how many times she had been married or the precise details of any ceremony or process that might have resulted in marriage. She indicated that she simply could not remember and initially offered a highly disorganised account. When she was told that it was understood that she had attended a religious service in Northampton, she recognised this and offered some general, but still highly disorganised, views about the experience. She indicated that her purpose in "getting married" was simply "to be helped to lead a normal life" and "to be accepted" and to be regarded as "good" by people around her. She repeatedly asserted that this was not choice but something expected of women from her background. When invited to consider some very basic information about the nature of a marriage contract, including an agreement between two people for which each had a choice to live together and share a loving relationship, a home and responsibilities towards each other, she became distressed and too thought-disordered to indicate any further response, so that it was not considered appropriate to continue the dialogue.
(5) Consent to sexual relations - In his report, Dr Andrews stated that, in view of M's distress and the general observations in respect of those features of her mental state that impacted on her capacity to make decisions, it was not considered appropriate or indeed necessary to address the issue of consent to sexual relations at that point.
(6) Giving evidence Although M was aware of some form of "court" being involved in her life, she could not indicate any understanding of what this was. When offered basic information about the court helping to make decisions of people's lives, she was unable to retain or process the information.
Dr Andrews' conclusion that M lacked capacity in the six areas identified was consistent with the findings of Dr O'Halloran in her report dated 28 August 2015, which Dr O'Halloran confirmed in a subsequent assessment in November 2016.
(4) Future capacity
"Whilst hopeful of progress based on what has been achieved in a relatively short period of time since M's transfer to my care, I would not wish to raise an expectation that she may regain capacity. The Court should be assured that M's further rehabilitation and treatment reflect measures to support her capacity and, if not achieved, her ability to become more participant and able to express her views and feelings so that they may inform determinations of best interests. I anticipate being in a position to advise the Court by mid-December 2017, at the earliest, on the outcome of M's further rehabilitation and treatment under my care."
(5) Capacity to marry and consent to sexual relations in 2013
"in my view M lacks capacity to make a decision to marry as I could not establish that she was able to retain the information or weigh it in the balance."
Furthermore, when assessing M's capacity to consent to sexual relations in 2015, Dr O'Halloran had stated:
"This was the most difficult capacity issue to assess due to her distress. From M's brief and contradictory responses, I could not be satisfied that she was demonstrating that she had an understanding of what is involved physically or emotionally in having sex."
In her oral evidence, Dr O'Halloran conceded that this had been "clumsy wording" because it suggested that she had not started her assessment from a presumption of capacity. After further questioning, she revised her assessment, stating that she would now say she could not reach a conclusion as to whether at the time of her earlier assessment she had capacity to marry, adding later that she could not possibly say if M had the capacity to marry in 2013. It also emerged in the course of oral evidence that Dr O'Halloran had not had the assistance of an interpreter when carrying out her first assessment in 2015.
Submissions on capacity
Conclusions on capacity
The findings sought and the parties' positions in summary
(a) Findings sought by local authority and/or HT against AB and MS
(b) Financial allegations against AB
(c) Cross-allegations by AB against HT
(d) Cross-allegations by MS against HT
The law to be applied at fact-finding hearings
"It is an elementary proposition that findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation."
"Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases has to have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof."
"It is important to remember (1) that the roles of the court and the expert are distinct; and (2) it is the court that is in the position to weigh up the expert evidence against its findings on the other evidence. The judge must always remember that he or she is the person who makes the final decision."
"To these matters I would only add that in cases where repeated accounts are given of events surrounding injury and death, the court must think carefully about the significance or otherwise of any reported discrepancies. They may arise for a number of reasons. One possibility is, of course, that they are lies designed to hide culpability. Another is that they are lies told for other reasons. Further possibilities include faulty recollection or confusion at times of stress, or when the importance and accuracy are not fully appreciated, or there may be inaccuracy or mistake in the recordkeeping or recollection of the person hearing and relaying the account. The possible effects of delay and repeated questioning upon memory should also be considered, as should the effect on one person of hearing accounts given by others. As memory fades, a desire to iron out wrinkles may not be unnatural, a process that might inelegantly be described as 'story creep' may occur without any necessary inference of bad faith."
I also bear in mind the observations of Mostyn J in Lancashire County Council v R  EWHC 3064 Fam:
"With every day that passes, the memory becomes fainter, and imagination becomes more active. The human capacity for honestly believing something which bears no relation to what actually happened is unlimited. Therefore, contemporary documents are always of the utmost importance."
The principal witnesses
Conclusions as to principal witnesses
Financial allegations against AB
"Although a dishonest state of mind is a subjective mental state, the standard by which the law determines whether it is dishonest is objective. If by ordinary standards a defendant's mental state would be characterised as dishonest, it is irrelevant that the defendant judges by different standards."
Mr Bhose submits that, by the ordinary standards, AB's behaviour and mental state as to the use of his daughter's money would be characterised as dishonest. In supplemental submissions he adds that, in colloquial terms, AB simply cleaned his daughter out, using her money as his own, knowing it was not his to use, but frankly not caring. In the alternative, he submits that on any view the expenditure of M's money in the way described by AB was not in her best interests and was in breach of his duty as her deputy. As a result, the local authority asked the court to discharge him from that role.
The circumstances of the marriage ceremony on 15 August 2013
MS's immigration status
The introduction, proposal and arrangements for the marriage
"In 2013 M and I went to racecourse to attend the Eid celebrations where I introduced M to MS . M and MS spent some time together at the celebrations and M informed me afterwards of her feelings for MS. M had been in a relationship before her attack and I was pleased that she had felt safe with another person. I spoke to MS on M's behalf and he expressed an equal fondness for M and they met further three times before it was agreed they would marry."
AB has reiterated his evidence that the meeting between M and MS took place at the Eid celebrations in 2013. In his third statement, he gave more detail about the meeting, stating:
"They sat down and spoke to each other for a while, and it seemed clear immediately that they enjoyed each other's company. I could see her laughing and smiling, and she seemed happy and at ease. They met on three further occasions after that, twice in our home and once at the mosque. It was important to me that my daughter was happy, and I asked on three separate occasions whether she likes MS and enjoyed seeing him. Every time, she answered by telling me that she did, and I could see that she was happy."
"I used to see M and I knew her for about 5 to 6 months by the time of our marriage. We had first met when she came with her father to [the] Islamic Centre to study the Qur'an and Arabic classes. I was present there for charity work. I found M to be a religiously committed Muslim . On some occasions before and during the Ramadhan I discussed M with AB and on Eid celebrations I went to [the] Racecourse where we hold the celebrations, [and] was formally introduced to M by her father. We spent a good time together at the celebrations and when AB spoke to me I expressed my fondness for M and we met further three times on different occasions before we decided to get married."
In his third statement, MS said:
"Prior to our formal introduction I had already met with M due to our both attending the Islamic centre and we got along well. I therefore was familiar with M prior to our formal introduction at the Eid celebration . We had in fact met on five or six occasions at the Islamic centre during which we had engaged in conversation. It was as a result of our conversations and our getting along that I expressed my interest to AB in marrying M. It was on 17 July 2013 that AB formally introduced me to M with a view to considering marriage."
The wedding ceremony on 15 August 2013
The removal of M from AB's address and its aftermath
Allegations against HT
(1) she has fabricated allegations against them;
(2) she delayed in making a number of allegations, despite having ample opportunity to do so;
(3) she has deliberately kept M away from them and discouraged contact;
(4) she has had a long-term plan to get M away from AB;
(5) she disapproved of the marriage for racial reasons, objecting to M's marriage to an Indian man;
(6) her motives are financial she wants to get her hands on M's benefits;
(7) she had not looked after M properly since taking her to London and, as a result, M has suffered a deterioration in her mental health.
HT denies all of these allegations, save that she accepts that she has not encouraged contact because she is concerned to protect M from their influence.
Further discussion and conclusions as to findings of fact
(1) For the reasons stated above, the presumption that, in August 2013, M had the capacity to marry and consent to sexual relations has not been rebutted. It follows that the court must proceed on the basis that, at the date of the ceremony, M had the capacity marry.
(2) M was nevertheless a very vulnerable woman suffering from fluctuating psychotic illness and the permanent effects of a serious head injury. At all material times she was, and remains, vulnerable to the influence of members of her family, including both AB and HT.
(3) On a balance of probabilities, I find that the various statements recorded as to her wishes and feelings about her Islamic marriage to MS have been substantially influenced by others, in particular by HT. In my judgment, HT has not deliberately set out to influence M, or lead her to say things that are not correct. But in the light of their respective characters, and HT's undoubted influence over M, it is in my judgment overwhelmingly likely that HT's views have affected and influenced M's various statements about the marriage.
(4) On a balance of probabilities, I accept HT's evidence that M told her on 15 August that she did not want to get married. It does not follow, however, that M did not in fact want to marry MS on that day. Given her vulnerabilities, and the difficulties about accepting and interpreting her statements, it is impossible at this distance to discern her true wishes and feelings on the day of the ceremony.
(5) On a balance of probabilities, I accept HT's evidence that on 15 August 2013 she told AB that M did not want to marry MS and that AB responded "I'll make her". There is, however, no evidence of any pressure being exerted on M and, in the light of my finding that it is impossible to discern M's true wishes and feelings on that day, however, I do not find that AB did in fact force M to marry MS.
(6) I accept the evidence of the Imam as to the details of his conversation with M during the ceremony, supported as it is by several witnesses. I find that, when asked whether she consented to the marriage, M replied yes. On a balance of probabilities, I do not accept HT's account that M said "if my father wishes". I find that the Imam conducted the ceremony appropriately and fulfilled his obligations to satisfy himself that M consented to marrying MS.
(7) I also accept the evidence of the other witnesses called to give oral evidence to the effect that there was nothing about the ceremony which led them to believe that M did not want to be married.
(1) that I am not satisfied that M did not want to marry MS on the date of the ceremony;
(2) that, in the light of M's vulnerability to influence at the date of, and after, the ceremony, and her current lack of capacity, I am not able to make any finding as to her current wishes and feelings concerning MS;
(3) that, although the marriage was arranged entirely by AB and MS, and that M was unquestionably married under the influence of her father, I am not satisfied that she was coerced into the marriage.
(1) I find that HT had anxieties about M's welfare over a period of time prior to August 2013 and was concerned about whether the marriage to MS was in her best interests. I do not find that HT was opposed to the marriage because of MS's Indian nationality but, rather, because of her concerns about M's vulnerability.
(2) HT genuinely believed that MS's motive for marrying M was to improve his immigration status, and she was genuinely concerned that M had been coerced by AB into the marriage.
(3) I find that HT acted in M's best interests in removing her to London in November 2013. I find that, in doing so, she was motivated solely by concerns about M's welfare.
(4) I find that, after bringing M to London, HT was concerned that AB and MS might try to get her back to Northampton and for that reason did not actively encourage contact.
(5) I do not find that HT was motivated by a desire to benefit financially from M or to control M's financial affairs. I reject the allegation that she has acted dishonestly with regard to M's finances.
(6) I find that after November 2013 HT cared for M to the best of her ability. The deterioration in M's mental health was not attributable to any deficiency in the care provided by her aunt.
(7) I find that HT has strong views about the behaviour of AB and MS towards M, that it is likely that, intentionally or otherwise, she has conveyed those views to M, and that M has at times made statements which reflect HT's influence.
(8) On a balance of probabilities, it is likely that some of the allegations which HT reports M has made have in fact been prompted by HT's own statements and questions which, in turn, derived from HT's views and concerns about the way M had been treated.
(9) Contrary to the assertion made by AB, HT has told professionals about her concerns from an early stage. Her concerns have grown over time in the light of statements made by M, although, for the reasons set out above, those statements are likely in turn to be prompted by statements and questions emanating from HT and are therefore unreliable.
(10) In making the allegations against AB and MS, HT may have acted misguidedly at times, but in my judgment she has not acted dishonestly or in bad faith.
Declarations and orders following findings
(a) Declaration of non-marriage
(1) The ceremony failed to comply with the essential requirements of the Marriage Acts 1947 to 1986, in particular in that the marriage (a) was not conducted in a registered place and (b) was not conducted by a registrar, or by a priest according to the rites of the Church of England.
(2) In all probability, the ceremony was never intended to attract the formal status of a marriage under English law but was rather undertaken to create a marriage expressly according to Islamic religious laws.
(3) Where parties to a marriage have never attempted to comply with essential formal requirements, such as the requirement that the ceremony takes place in a registered place and is conducted by registered person, the route to challenge the status of the arrangement is not by the presentation of a petition of nullity but, rather, to seek a declaration under the inherent jurisdiction that the ceremony did not create or amount to a marriage at all.
(4) In such circumstances, the court will hold that the ceremony did not attract the status of a marriage and has the power so to declare.
In support of these propositions, Mr Bagchi cited three authorities A-M v A-M (Jurisdiction: Validity of Marriage)  2 FLR 6 (Hughes J, as he then was), Hudson v Leigh (Status of Non-Marriage)  2 FLR 1129 (Bodey J) and El Gamal v Al Maktoum  2 FLR 387 (Bodey J). I accept that his summary accurately sets out the relevant law on this matter.
"I can reach no other conclusion than [the husband] deliberately targeted SY because of her learning difficulties and her vulnerability. The courts will not tolerate such gross exploitation In my judgment it is important for SY that a declaration of non-marriage is made in respect of the 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 court will not tolerate such exploitation."
In those circumstances, Keehan J made a declaration, under the court's inherent jurisdiction, that the ceremony in which SY had been involved was a non-marriage.
(b) Should the proceedings now come to an end?
(c) Consequential orders