Court of Appeal allows appeal by council in case on consent to sex and social media use

The Court of Appeal has allowed an appeal by an unnamed local authority in a case concerning whether a woman could move in with a sex offender and have sex with him.

It simultaneously dismissed an appeal by the woman.

In B v A Local Authority [2019] EWCA Civ 913 Master of the Rolls Sir Terence Etherton, Lady Justice King and Lord Justice Leggatt considered the appeal against an order made in March by Cobb J in the Court of Protection.

Woman B appealed against his findings on her capacity to make decisions to use social media, decide on her place of residence and to consent to sexual relations.

The local authority appealed on the grounds that Cobb J:

• reached a decision that B had capacity to make her own decisions about residence without following the steps required in the statutorily mandated decision making process;
• failed to identify all of the foreseeable consequences of B going to live with Mr C, a known sex offender;
• wrongly treated the question as to whether B had capacity to make decisions about care services, who she should have contact with, her access to social media and sexual relations as not being relevant to the decision about residence;
• failed to take account of information which he ought to have treated as relevant;
• erred in holding that B understood, in broad terms, the care she would receive when living with Mr C;
• reached contradictory conclusions in relations to B's capacity to make decisions about residence and her capacity to make decisions in relation to care, contact, social media and sexual relations.

B did not have capacity to litigate and was represented by the Official Solicitor.

She is 31, lives with her parents and has learning difficulties, epilepsy and struggles to maintain her personal care and hygiene.

B has been assessed as requiring support to maintain her safety when communicating with others and is a frequent user of social media, being known to send intimate photographs of herself to male strangers.

She met Mr C online, a man in his seventies who is subject to a sexual harm prevention order.

Mr C is has said that he wishes to marry her. Although B has been advised of the risks, she refuses to believe that he has a history of offending.

In July 2018 the local authority applied for declarations that B lacks capacity to consent to sexual relations and to make decisions as to her contact with others.

Cobb J last October imposed an interim injunction on Mr C prohibiting him from having any contact with B.

He was in March found to have breached the order and was sentenced to three periods of 28 days' imprisonment to run concurrently, suspended for 12 months.

Cobb J held that B did have capacity to make decisions in relation to residence but that B lacked capacity to make decisions about contact because she refused to weigh Mr C's convictions in her decision-making.

He concluded she did not have capacity to decide to use social media for the purposes of developing or maintaining connections with others and directed that B be provided with further education in relation to sexual health risks.

The Court of Appeal said the Official Solicitor’s grounds of appeal “do not comply with CPR 52CPD para. 5,” and “so far as we have been able to identify the OS's grounds of appeal”, they were that Cobb J erred in his formulation of the relevant information over B’s use of social media and ability to consent to sex. They dismissed both grounds.

On the local authority's appeal, the appeal judges said Cobb J's decision that B did not have capacity to make a decision as to the persons with whom she has contact was plainly relevant and “conflicted directly with the judge's conclusion that B had capacity to decide to move to live with Mr C.

“The point is reinforced by the fact that Cobb J had already granted an interim injunction prohibiting Mr C from having any contact with B. Permitting B to move to live with Mr C would presumably have placed both him and B in contempt of court for breach of the injunction.”

They went on to note: “One of B's explicit motivations for moving to live with Mr C is to have sexual relations with him and, it would seem, to have his baby.

“Again, there is a direct conflict with the judge's interim finding that B has capacity to decide to live with Mr C in his home.”

Mark Smulian