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Capacity and vulnerability

RCJ portrait 146x219The Court of Protection team at 39 Essex Chambers report on a case involving a complex and very personal cocktail of capacity and vulnerability.

The case of AB v HT & Ors [2018] EWCOP 2 (Baker J) concerned the capacity and best interests of a 37-year-old woman, M, who had suffered a difficult childhood and first marriage, and was at the time of the hearing being treated in a psychiatric hospital for a psychotic illness. She also had an acquired brain injury which affected her cognitive functioning. M had previously lived with her father, and had taken part in an Islamic marriage ceremony in 2013. Her father and partner were parties to the proceedings, as was her aunt, who had taken M away from them and cared for her for a period of time before M’s admission to hospital. Unfortunately for M, her family members were all in conflict with one another, and the court had to deal with over 100 pages of fact-finding allegations from all sides, extending to both welfare and financial matters.

The hearing that gave rise to this judgment took place some 2½ years after proceedings were issued by M’s father. At the time of the hearing, it was anticipated that M would remain in hospital receiving treatment for her mental disorder for at least another year if not longer. Baker J had to determine issues of capacity and best interests, as well as the status of the Islamic marriage ceremony.

Baker J concluded that there was insufficient evidence on which to conclude that M had lacked capacity to participate in the marriage ceremony, but that she presently lacked capacity to make relevant decisions, and that while it was possible she might regain capacity in future if her psychiatric treatment was successful, that was no reason not to make declarations of incapacity, in circumstances where the likelihood of an improvement in her condition and the timescales involved were uncertain.

On the factual allegations, Baker J concluded that M’s father and partner had acted contrary to her best interests, misusing her money, failing to look after her properly, and arranging the marriage ceremony for the benefit of her partner’s immigration status. The court did not find, however, that there had been a forced marriage.

The court made orders confirming M’s incapacity in relevant areas, and a declaration that the marriage ceremony did not confirm with the requirements of the Marriage Acts, such that M and her partner were not married under English law.

There was then a dispute about whether the proceedings should continue. The Official Solicitor and local authority sought to bring them to an end, but Baker J concluded that they should continue, for three reasons: (i) it was possible that the picture as to M’s capacity would be clearer within a year; (ii) there were continuing disputes about M’s long-term residence and contact with her family which would need to be resolved, most probably by the court, and (iii) despite the criticism of M’s father and partner, they remained people interested in her welfare whose views should be considered pursuant to s.4 MCA. On the latter point, Baker J said:

[The partner] MS is not married to M as a matter of English law but is married to her according to Islamic law. It would normally be appropriate to consult the spouse or partner of the adult concerned, although not necessarily where the spouse or partner is estranged or has been abusive towards adult. In my judgment, the question whether to seek the views of MS when making future best interests decisions concerning M and, if he is consulted, the weight to be attached to his (and [the father’s]) views are sensitive and difficult issues and, furthermore are issues about which the parties will almost inevitably disagree, leading to further proceedings before this court.


Although not determining any points of principle, this judgment is of interest for its summary of the approach to evidence in fact-finding hearings, its discussion of Islamic law in relation to marriage, and in the judge’s refusal to accept that despite having made serious findings against M’s father and partner, it did not follow as a matter of course that they should not continue to be consulted in relation to best interests decisions about her future welfare. On the latter point, it will be interesting to see whether any subsequent judgments emerge in the proceedings analysing this difficult and contentious question of which there has, to date, been little judicial consideration.

This article was written by the Court of Protection team at 39 Essex Chambers.


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