Safety net

The Court of Protection team at 39 Essex Street report on an important High Court case involving a forced marriage with an incapacitated British woman.

In XCC v AA and others [2012] EWHC 2183 (COP) DD, a British citizen, had severe learning disabilities, little language, very little comprehension of anything other than simple matters, and required assistance with almost every aspect of daily living.

In 2003 she entered into an arranged marriage in Bangladesh with her cousin, AA. During the ceremony she was slumped in a chair, almost comatose and barely able to repeat the words of consent to marriage; words which she did not understand. The marriage would not have taken place were it not for the fact that AA wanted to live and work in England, gaining immigration entry clearance in reliance upon it.

Owing to very significant concerns surrounding DD’s welfare, the police obtained a Forced Marriage Protection order pending an application being made to the Court of Protection. Interim declarations of incapacity were made to protect DD. Her husband was warned that sexual relations with his wife were likely to be criminal and he was not permitted to live or have any contact with her.

The main issue for Parker J. was whether she had the power to declare that the marriage was not recognised in this jurisdiction. A gap in the law arose because a person’s invalid consent to marriage rendered it voidable, rather than void, under s.12(c) of the Matrimonial Causes Act 1973 and s.58(5) of the Family Law Act 1986 prevented the Court from declaring it to be void from its inception. All parties initially opposed a declaration of non-recognition. With interim declarations made and undertakings by the parties given, neither the local authority nor the Official Solicitor considered it to be in DD’s interests to end the marriage. Her parents and husband also asserted that non-recognition would shame the family in the community.

In relation to the Court of Protection’s statutory jurisdiction, Parker J. accepted that the power to make declarations were expressly limited by MCA s.15 and the Court could not develop its “own inherent jurisdiction” which went beyond its statutory powers (paragraph 49). Thus, for example, under the MCA the Court could declare that it was unlawful for DD to be married in this jurisdiction but not that it was unlawful for her to be married in Bangladesh. But, in any event, the MCA did not confer any jurisdiction to make a non-recognition declaration as this was not a personal welfare decision for, or on behalf of, DD.

Relying upon KC v City of Westminster [2008] EWCA Civ 198, her Ladyship held that the High Court could exercise its inherent jurisdiction of its own motion to refuse to recognise a marriage where one party was unable to consent. This jurisdiction was flexible and able to respond to social needs and, in this instance, was able to fill the gap left behind by the lack of statutory power to grant a declaration of non-recognition. Insofar as the interface between the two jurisdictions is concerned:

“54… 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 4 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.

…

85… 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 on its own motion.”

In broad terms, the Court held that the MCA provisions were not to be imported into the inherent jurisdiction evaluation of non-welfare matters. Hence, DD’s beliefs and values did not have to be taken into account. Nor did the attitudes, wishes and beliefs of her family. Although it was appropriate, on general principles, to consider whether a declaration was necessary and proportionate, the Court did not have to apply the principle of least restriction in MCA s.1(6). Welfare considerations may be relevant to the Court’s decision as to whether to make the declaration, but not in the present case.

Public policy considerations were relevant and “In my view a marriage with an incapacitated person who is unable to consent is a forced marriage within the meaning of the Forced Marriage Act 2007…”. Citing her earlier judgment, ““Force” in the context of a person who lacks capacity must include inducing or arranging for a person who lacks capacity to undergo a ceremony of marriage, even if no compulsion or coercion is required as it would be with a person with capacity” (paragraph 30). Such a marriage was a gross interference with the incapacitated person’s autonomy:

“72… Its concomitants, sexual relations and, as a foreseeable consequence, pregnancy, constitute not only a breach of autonomy but also bodily integrity, perhaps one of the most severe that can be imagined, and the consequences may be lifelong. Marriage creates status from which many consequences flow which affect third parties and the public at large including the admission of persons who would not otherwise be entitled to admission. Thus questions of public policy generally as well as those that affect the individual concerned are relevant. There is also a public policy interest in the Court stating openly that such marriages should not be recognised.”

In conclusion, invoking the inherent jurisdiction, the Court declared that the marriage celebrated in and valid according to the law of Bangladesh was not recognised as a valid marriage in this jurisdiction. Using the statutory jurisdiction, Parker J. declared that it was in DD’s best interests for an application to be made to annul the marriage and for the Official Solicitor to be authorised to act as litigation friend to do so. As a postscript, stark guidance to health and social care professionals was repeated from the earlier judgment:

“184… in my view it is the duty of a doctor or other health or social work professional who becomes aware that an incapacitated person may undergo a marriage abroad, to notify the learning disabilities team of Social Services and/or the Forced Marriage Unit if information comes to light that there are plans for an overseas marriage of a patient who has or may lack capacity. The communities where this is likely to happen also need to be told, loud and clear, that if a person, whether male or female, enters into a marriage when they do not have the capacity to understand what marriage is, its nature and duties, or its consequences, or to understand sexual relations, that that marriage may not be recognised, that sexual relations will constitute a criminal offence, and that the courts have the power to intervene.”

Comment

This judgment contains a useful and detailed discussion of the interface between the Court of Protection’s MCA jurisdiction and the High Court’s inherent jurisdiction. It serves as a reminder of the limitations imposed by Parliament and the corresponding flexibility afforded by the parens patriae powers.

Although it is apparent that the judiciary has little hesitation in reverting to ‘the great safety net’ to fill legislative gaps, the principles which guide the exercise of those powers in this jurisdictional hinterland may well come under increasing scrutiny as the law develops. Although the approach should be facilitative rather than dictatorial, it is interesting to note the Court’s rejection of the MCA considerations, particularly those relating to the person’s own wishes and feelings, merely requiring orders to be “necessary and proportionate”.

Describing the arranging of a marriage between an incapacitated person, who is unable to consent, and another as a “forced marriage” for the purposes of the 2007 Act is noteworthy, particularly in an era when the Government are in the process of criminalising forced marriages from 2013.

Although it was referred to in the context of an arranged marriage abroad, time will tell whether these comments have a broader application to domestic incapacitated marriages: they certainly serve to reinforce the importance of assessing marital capacity. Indeed, it is reported that 50 English councils are due to issue guidance to raise awareness of the issues and to identify potential victims. 

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