Analysis
DD has severe learning disabilities, little language, little comprehension of anything other than very simple matters and needs assistance with almost all aspects of her daily life. Her parents are from Bangladesh, but the family has been brought up in Britain and are British citizens. DD married AA (said to be her cousin) in 2003 in Bangladesh. AA eventually gained a spousal visa in 2009 and moved in with DD and her parents, sharing DD’s bedroom and bed. DD’s marriage came to the attention of the learning disabilities team of XCC, leading to concerns about her welfare. The police obtained a forced marriage protection order pending an application by XCC to the Court of Protection. In 2010, a court order was made preventing AA from living with DD or having any contact with her and a number of declarations were made including declarations that DD lacks the capacity to marry and had lacked the capacity to marry in 2003 when the marriage ceremony took place in Bangladesh and that DD lacks capacity to consent to sexual relations and to make decisions regarding with whom she should or should not have contact. As a consequence of those declarations, it was therefore unlawful for AA or for any other person to engage in any kind of sexual activity with DD.
DD’s family were ‘bewildered and disconcerted’ that they were seen to have done anything wrong. Her parents considered it their duty to arrange for DD to be married so that she could be provided for when they were unable to do so. A gap in the law arose because a person’s invalid consent to marriage rendered it voidable, rather than void, under s12(c) of the Matrimonial Causes Act 1973 and s58(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 AA also asserted that non-recognition would shame the family in the community. The judge considered that any effect on DD would be indirect; arising from the feelings of her family and noted that the Bangladeshi marriage would remain valid. She ordered a hearing in October 2011 to decide ‘on the issues of the marriage of AA and DD (if applicable) and the future welfare of DD’ requesting the attorney general to appoint an advocate to the court to attend the hearing to give oral submissions dealing with, among other things, whether the court was only engaged in a welfare determination of DD’s immediate and/or long term interests or whether public policy issues arose from the existence of a marriage valid in Bangladesh with particular reference to the immigration position of AA, which the court should consider; and the potential consequences for DD in the future if no declaration is made that the marriage in Bangladesh is not recognised as valid in this jurisdiction. The AG supported the making of a declaration of non-recognition in relation to the marriage. After hearing expert opinion from an expert in islamic law, international human rights and constitutional law all parties except AA accepted that a declaration of non-recognition should be made and the Official Solicitor (acting as DD’s litigation friend) sought a ruling as to the basis upon which the declaration should be made.
Held:
- (1) Declaration exercising the inherent jurisdiction of the High Court that the marriage (although valid in Bangladesh) was not recognised as a valid marriage in this jurisdiction [94].
- (2) Declaration that it was in DD’s best interests for an application to be made to annul the marriage, with the Official Solicitor as litigation friend [95].
Marriage with an incapacitated person who was unable to consent was a forced marriage within the meaning of the Forced Marriage Act 2007 [30].
In relation to the Court of Protection’s statutory jurisdiction, the power to make declarations was expressly limited by the Mental Capacity Act 2005 (MCA) s15 and the court could not develop its ‘own inherent jurisdiction’, which went beyond its statutory powers. 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. 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 [48]. However, 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 (KC v City of Westminster [2008] EWCA Civ 198). 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. The protection or intervention of the inherent jurisdiction of the High Court was available to those lacking capacity within the meaning of the MCA 2005 as it was to capacitous but vulnerable adults who had had their will overborne, and on the same basis, where the remedy sought did not fall within the 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 had been overborne [54].
A non-recognition declaration could be granted on the specific ground that DD’s consent had not been given irrespective of capacity. That was not a welfare or best interests decision [61]. 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. Public policy considerations were relevant. To force a marriage on an incapacitous person was ‘a gross interference with his or her autonomy’. Marriage created status from which many consequences flowed which affected third parties and the public at large including the admission of persons to the country who would not otherwise be entitled to admission. Thus questions of public policy generally as well as those that affect the individual concerned were relevant. There was also a public policy interest in the court stating openly that such marriages should not be recognised [72].
Once a matter was before the Court of Protection, the High Court might make orders of its own motion, particularly if such orders were ancillary to, or in support of, orders made on application. Since the inherent jurisdiction of the High Court in relation to adults was an aspect of the parens patriae jurisdiction, the court had particularly wide powers to act on its own motion [85].
The duty of a doctor, or other health or social work professional who became aware that an incapacitated person might undergo a marriage abroad, was to notify the learning disabilities team of social services and/or the Forced Marriage Unit if information came to light that there were plans for an overseas marriage of a patient who did or might lack capacity. The communities where this was likely to happen also needed to be told, loud and clear, that if a person, whether male or female, entered into a marriage when they did not have the capacity to understand what marriage was, 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. This duty was reinforced by the Forced Marriage and Learning Disabilities: Multi-Agency Practice Guidelines issued 3 December 2010 which stressed the ‘one chance rule’, ie that there may be only one chance to speak to a potential victim [96].
JUDGMENT MRS JUSTICE PARKER: Introduction [1] In October 2010 I heard substantive proceedings about DD in the Court of Protection. [2] DD has a very significant degree of learning disability, little language, very little comprehension of anything other than simple matters, and needs assistance with almost all aspects of her daily life. Her parents are …Continue reading "XCC v AA & ors [2012] EWHC 2183 (COP)"