M v B & Ors

An adult lacking capacity to marry may be protected by final injunctive relief under the inherent jurisdiction where necessary to safeguard her best interests. Capacity to marry is assessed generally, by asking whether the person understands the nature of the marriage contract, the responsibilities ordinarily attaching to it, and can give valid consent; the assessment is not tied to a particular proposed spouse.

In evaluating best interests, the court should balance actual and potential benefits against actual and potential disadvantages, including the likelihood and gravity of possible harm. A real possibility of serious, irreparable harm may justify protective intervention. Applications for declaratory relief concerning incapacitated adults should ordinarily begin under CPR Pt 8; a substantial dispute of fact does not itself bar that procedure.

The local authority brought proceedings under the High Court’s inherent jurisdiction concerning S, an adult with severe learning disabilities. It sought declarations that S lacked capacity to marry and that marriage, or removal from England and Wales for a proposed visit to Pakistan, would not be in her best interests. It also sought continuing injunctions preventing S’s parents from arranging a marriage or removing her from the jurisdiction without permission.

The parents accepted that S lacked capacity to marry but denied any intention to arrange a marriage. The central issues were whether there was a real possibility that they would arrange an informal or formal marriage in Pakistan, whether protective injunctions were justified, and what procedure should govern similar applications.

1. Capacity. The court adopted the approach approved in Sheffield City Council v E ([2005] 2 WLR 953). Capacity is assessed generally, not by reference to a particular marriage proposal. The relevant questions are whether the adult can understand the nature of the contract of marriage, the responsibilities created by it, and give valid consent. On the medical evidence, S understood neither the nature of marriage nor its ordinary duties and responsibilities, and lacked capacity to consent.
2. Jurisdiction. The inherent jurisdiction over adults lacking capacity extends, in appropriate circumstances, to final injunctions restraining those responsible for the adult from entering into a formal or informal marriage on her behalf. The concession made by the parents was therefore correct.
3. Best interests and risk. Applying the balance-sheet approach described by Thorpe LJ in Re A (Male Sterilisation) ((2000) 1 FLR 549), the court weighed the benefits of a family visit against the risks. The parents’ lack of insight, hostility to professional intervention, cultural motivation, and inadvertent admissions established a real risk, likely to a high degree, that a marriage would be arranged. The consequences for S would be grave and potentially irreparable. The negative factors substantially outweighed the positive ones, and an injunction was plainly in S’s best interests.
4. Convention rights. The injunction protected S’s private life and family-life interests under article 8 of the European Convention on Human Rights. Article 8 did not require permitting relatives to create or perpetuate arrangements jeopardising her welfare.
5. Procedure. Applications for declaratory relief under the inherent jurisdiction concerning adults lacking capacity should commence under CPR Pt 8. A substantial dispute of fact does not invalidate that procedure. The court should ordinarily list an early directions hearing so that disputed issues and the method of resolving them can be identified. The proceedings and relevant injunctions were approved and continued.