X City Council v MB & Ors

The court may exercise its protective jurisdiction where there is a real possibility of harm to a vulnerable adult. Preventive relief is particularly important where later remedies could not repair the consequences.

Capacity to marry is governed by the law of each party’s antenuptial domicile, rather than the law of the place of celebration. A foreign marriage involving a person who lacks capacity under the applicable English law will therefore not be recognised in English law.

Generally, capacity to marry includes capacity to consent to sexual relations. The latter requires sufficient understanding of the sexual nature and reasonably foreseeable consequences of intercourse to choose whether to participate. The two capacities remain issue-specific and must be assessed separately.

MAB was a 25-year-old man with marked autistic spectrum disorder and very limited communication. Unchallenged psychiatric evidence established that he lacked capacity both to marry and to consent to sexual relations. His parents had for several years sought to arrange contact with a cousin in Pakistan with a view to marriage, despite medical advice about his capacity and the dangers of long-distance air travel.

The local authority commenced protective proceedings and obtained interim passport and injunctive orders. At trial, the parties agreed that MAB lacked capacity. The principal disputes concerned the legal effect of any foreign ceremony, whether the parents’ undertakings afforded sufficient protection, whether MAB’s passport should remain with the tipstaff, and the proper relationship between capacity to marry and capacity to consent to sexual relations.

1. Protective relief and disposition. The court accepted the parents’ undertakings not to cause or permit any ceremony of betrothal or marriage and not to take MAB outside England, Wales and Scotland. Injunctions and continued retention of his passport were unnecessary. The undertakings afforded sufficient protection because they were enforceable in the same way as injunctions and the court could intervene swiftly if circumstances changed.

2. Capacity and foreign marriage. MAB lacked capacity to marry. Capacity, unlike formal validity, is governed by the law of each party’s antenuptial domicile and not by the law of the place of celebration. Any purported marriage involving MAB, whether celebrated domestically or abroad, would therefore not be recognised in English law. International comity precluded a declaration purporting to determine his capacity under foreign law; the declaration was confined to English recognition.

3. Capacity to consent to sexual relations. Generally, a sexual relationship is implicit in marriage, although it is neither indispensable nor a condition of validity. Marriage requires each spouse to respect the other’s choice whether, and in what manner, to engage in sexual activity. Capacity to marry must therefore generally include capacity to consent to sexual relations.

   The relevant inquiry is whether the person has sufficient knowledge and understanding of the nature and character of intercourse, including its sexual character and reasonably foreseeable consequences, to choose whether to participate and, where relevant, communicate that choice. Knowledge need only be rudimentary, since an unduly demanding standard would unjustifiably restrict the sexual autonomy of people with limited intelligence.

4. Issue-specific assessment. Capacity to marry and capacity to consent to sexual relations are distinct and must be considered separately. A person lacking capacity to consent to sexual relations will generally also lack capacity to marry. The converse does not necessarily follow. The refined decision-making analysis used for litigation and medical treatment may be relevant, but is unlikely to be necessary or particularly helpful in either assessment.

5. Orders. The court declared that MAB lacked capacity to marry and that any purported marriage would not be recognised in English law. It discharged the passport order, provided machinery for review upon new psychiatric and travel evidence, and ordered the local authority to pay two-thirds of the parents’ final-hearing costs.

This was a first-instance claim under the High Court’s protective jurisdiction. A Deputy High Court Judge had made interim injunctions and a tipstaff passport order on 24 March 2005. The present court determined the substantive claim, accepted protective undertakings in place of injunctions, made declarations concerning capacity and recognition, and discharged the passport order.