Court of Protection considers correct legal test for assessing whether woman has capacity to make own decision as to whether or not to marry

In Stockport Metropolitan Borough Council v EKK (Rev1) [2025] EWCOP 42 (27 November 2025), Mr Justice Trowell concluded: “The approach set out in Sheffield [Sheffield City Council v E [2004] 2808 (Fam)]and developed thereafter enables the right balance between the protection of the incapacitous and a restriction on paternalistic involvement of the court.

“P needs to have capacity to understand what marriage is. If P does have that capacity it is not for the court to evaluate the person whom they wish to marry. To do so would be an overreach of the court's role.”

The case concerned EKK, a woman in her eighties. She suffers from vascular dementia, depression, hoarding disorder and mild cognitive impairment.

EKK has been in a relationship with ID, who is about 20 years younger. He is suspected by the local authority of mis-managing her finances, although no findings of fact have been made.

The judge noted: “[EKK] has expressed a view that she wants to marry [ID] for some time. Indeed…..there was a booking at the Stockport Registry Office for EKK and ID to get married. That did not proceed as a consequence of the involvement of the local authority.”

In February 2025 pursuant to a court order of December 2024, a letter of instruction was sent to Dr McIntosh to report to the court as a single joint expert on EKK's capacity to make decisions on:

The care she received;

• Her residence;
• Cleaning and rendering her house habitable;
• Engaging in sexual relationships;
• Entering into marriage or civil partnership;
• Contact with others;
• Managing her property and affairs; and
• Conduct of these proceedings.

Dr McIntosh subsequently reported that because of an impairment of, or a disturbance in, the functioning of her mind EKK did not have capacity to make decisions on any of these matters, save for engaging in sexual relationships and entering into a marriage or civil partnership.

Outlining the positions of the parties, Mr Justice Trowell said: “Mr Borrett [for the local authority] argues that the same logic which the Supreme Court applies to capacity to engage in sexual relations applies to capacity to marry. There is the same 'open texture' to section 2(1) in relation to both. So he says the decision in relation to marriage can now be person specific. In this case he says it should be person specific because the decision that faces EKK is marriage to a particular individual, ID.

“It would be wrong in this case, he says, to consider capacity to determine an abstract decision about marriage as a matter of status when there is a concrete decision to be made about marriage to ID.”

By contrast, counsel for EKK presented the judge with a number of reasons why he should not depart from the conclusion in Sheffield, namely that the decision is a status specific decision not a person specific decision.

Discussing the case, Mr Justice Trowell said: “There is force in Mr Borrett's observation that the actual decision that EKK has to make is whether or not to marry ID, so why not consider that question? That can be developed in various ways. If marriage is considered a contract it is necessary to consider not only whether the contract, per se, can be understood but also whether P, entering into that contract can assess whoever it is who will be at the other end of the contract. Or, more concretely, given cohabitation is a normal part of marriage should a person be considered to have capacity to marry if they do not have capacity to decide with whom they should have contact?”

He continued: “There are two reasons, I have concluded, why I should not take Mr Borrett's offer of a simple practical answer. First, I consider that York [York City Council v C and another [2013] EWCA Civ 478] must guide my decision. That spells out in terms that it has been established that capacity to marry is status or act specific, not person or spouse specific.

“[…] Second, there are good principled reasons why Sheffield is the right approach. The MCA 2005 is premised on an assessment of P's capacity. It is inevitably therefore focussed on the operation of P's mind. Extending the question which needs to be considered to include an assessment of the intended spouse, or even, to put it in terms more compatible with the Act, P's ability to assess the intended spouse, will necessarily divert the court into an assessment of the intended spouse, rather than P's capacity.”

The judge observed that the approach set out in Sheffield and developed thereafter enables the “right balance” between the protection of the incapacitous and a restriction on “paternalistic involvement” of the court.

Concluding the case, he said: “P needs to have capacity to understand what marriage is. If P does have that capacity it is not for the court to evaluate the person whom they wish to marry. To do so would be an overreach of the court's role.

“[…] The question to be considered here is: does EKK have capacity to make a decision to marry, not does she have capacity to make a decision to marry ID.”

Lottie Winson