Sandwell Metropolitan Borough Council v RG & Ors

I have been very grateful to the advocates, Miss Michelle Pratley, Mr Christopher Gibbons and Ms Elizabeth Isaacs QC for the sensitive, informed and cogent ways in which they advanced their respective cases. I am no less grateful to Mr Joseph O’Brien, who appeared on behalf of the mother but who, appropriately, withdrew once it was clear that she did not wish to advance any case on the remaining disputed issues, but who remained in touch as the case progressed.

I am grateful, too, to all the instructing solicitors, who were patently providing much help and direction to the advocates. In this regard I particularly thank and compliment Miss Kirstine McFarlane, the solicitor instructed by the Official Solicitor to represent GG and RG. She has formed a good relationship with each of them, and the manner in which she assisted them and asked sensitive and helpful questions during their meeting with me this morning was skilled, exemplary and worthy of high praise. Finally, I would like to record my gratitude to the interpreter, who not only interpreted with apparent skill, but who clearly provided gentle support to the wife, Mrs SK, during an exceptionally stressful hearing for her.

I wish to stress at the outset that this case, like, indeed, many cases in the Court of Protection, is highly fact specific. I do not intend by this judgment to indicate any “policy”, precedent or guidance as to any other case.

The case concerns two brothers, GG, who is now aged 39, and RG, who is now aged 38. They are two of the four children of the late Mr MSG and his widow, Mrs SKG. Mr MSG was a very prominent and respected member of the Sikh community in Great Britain. The other children, both adult, are of normal intelligence and capacity. GG and RG are not.

The family originate from the Punjab, in India, but moved to live in England while GG and RG were still quite young children. The parents did, however, retain property in India, and periodically returned there, facts which are germane to domicile, as I will later mention.

It is common ground and not at all in issue that each of GG and RG has moderate learning difficulties, are of low intelligence and can exhibit challenging behaviour. Each has lived for some time now in accommodation provided and staffed separately for each of them by the local authority.

Each has been examined and assessed for, and within the context of, these proceedings by a consultant psychiatrist, Dr Kiriakos Xenitidis. His more formal and elaborate diagnosis is as I have just summarised it, and he considers that the impairments date from babyhood, if not from birth, and are likely to be lifelong, with little or no prospect of improvement of maturation.

I had the pleasure and advantage of meeting both GG and RG this morning, together with their dedicated support workers, respectively Mr Dwain Cheshire and Mr Kwadwo Kusi-Frimpong. Each displayed charm and impeccable manners. The meeting served to illuminate to me the low level at which each functions intellectually. GG, in particular, was very easily led and did little more than parrot answers to Miss McFarlane or myself.

GG said that he wants to go to India. He likes Bangra dancing and visiting his mum and brothers. He likes it where he lives, at K house. Dwain, his support worker, is very nice, and his favourite food is saag. When asked if there was anything else he wanted to tell the judge, he said he had seen a snake on telly. I will summarise later what RG told me.

After considerable investigation and careful consideration by the local authority, the Official Solicitor and experts variously instructed by them, it is now common ground: first, that GG and RG each lack the capacity to make a range of decisions as to where they reside, their care packages, their contact with others, and certain other matters; and, second, that it is in their respective best interest that there be a range of declarations and other orders in terms which have been carefully drafted, and with one exception, are agreed.

There is no dispute at all in relation to the proposed order in the case of GG, and I need say no more about him or it. There is no dispute, either, in relation to all issues as to where RG resides, contact with his birth family, and a number of other welfare matters. There is, however, an added feature in relation to RG.

In March 2009 RG was taken by his parents to the Punjab, where he participated in an arranged marriage ceremony with a lady, Mrs SK. It is not in issue that the marriage has formal validity under the law of the place where it was contracted. It was arranged between the late father, who has since died, of RG, and the father or family of Mrs SK.

RG’s mother, Mrs SKG, was resistant to the marriage taking place, but in the end accepted and complied with the will of her husband. It is said that it would not have been easy to arrange a husband for Mrs SK, who was then in her later twenties, since she is lame. There is a picture, therefore, although it was not much investigated at the hearing, of a marriage, arranged by their families, for two people, who, because of their respective mental or physical disability, might otherwise have been hard to marry.

There is some divergence in the written evidence as to the extent, if at all, to which Mrs SK actually met her future husband before the day of the marriage itself. In her oral evidence on affirmation to me she was adamant that she personally never met him before the day of the marriage itself. Even if she did do so, their contacts were minimal, and I accept her evidence that it was only after the marriage that she herself discovered that, in her words, “He is not like a normal person”.

Mrs SK bears no personal responsibility at all for the events which happened. There is no question whatsoever of her having personally exploited the mental disability of RG. She was an obedient daughter, in a Sikh family, who compliantly participated in the arrangements that her family made for her marriage. Having married him, she now feels committed to him, and, indeed, says that she does now love him. She says that it would be impossible in her culture and religion for her ever to marry anyone else, and that if she were divorced, or her marriage was annulled, she would be ostracised in her community.

Mrs SK said with feeling that they, that is, the families who arranged this marriage, have ruined her life. Her position is a tragic one, which she bears with fortitude and dignity. She also displayed intelligence and charm during the course of the hearing.

Following the marriage RG remained in India for about ten days. Mrs SK says, and I accept, that the marriage was consummated on the night of the wedding, and that they had sexual intercourse on a few further occasions. RG was then returned to England, where he has lived continuously ever since. Later, in March 2010, Mrs SK also travelled to England, where she has so far been permitted to enter and remain. She is not allowed any recourse to public funds, and she works very long hours, for low wages, as a fruit picker and in similar rural labouring tasks.

The issues that now remain in relation to RG relate to the status and continuation of that marriage. It is accepted by Mrs SK that she cannot provide to RG the support and daily care and assistance that he needs, and always will need, and she no longer resists that he remains living in the accommodation provided and staffed by the local authority. She implores me, however, not to facilitate or permit steps to be taken to annul their marriage.

At the outset of the hearing Mrs SK was also still asking to be permitted to have some sexual relationship with her husband, the more so as it would be culturally impossible, now, for her to do so with any other man. The evidence of Dr Xenitidis was, however, crystal clear that RG has no understanding at all what sex is, and, accordingly, that he lacks any capacity to choose whether to agree to sexual touching. As Xenitidis put it: “He does not even understand what sex is. Whether it is voluntary, or not, is a kind of luxury for him.”

In the light of that unchallenged and un-contradicted evidence, Mr Gibbons, who is an experienced barrister in the fields of both family and criminal law, was constrained to concede on behalf of Mrs SK that although she would like to have a sexual relationship with RG, and finds it hard to understand and accept the impact and effect of section 30 of the Sexual Offences Act 2003, she would commit a serious criminal offence under section 30 of that Act if she were intentionally to touch RG, and the touching was sexual.

The fact that they are married to each other would be no defence. If she were to have any form of sexual intimacy with him, he would be the victim of a criminal act. If the act included penetration of Mrs SK’s vagina with RG’s penis (i.e. normal vaginal intercourse) or even his finger, then the maximum sentence under section 3(3) could be life imprisonment. It would, accordingly, be a crime of great gravity.

Section 27(1)(b) of the Mental Capacity Act 2005 expressly provides that nothing in that Act permits a decision to be made on behalf of a person consenting to have sexual relations. Accordingly, if, as is clear, RG himself lacks any capacity to consent to sexual relations, the court cannot provide any consent on his behalf, even if (I stress if) that might enable him to gain some physical pleasure from some sexual activity.

As it happens, there is a body of evidence from carers and others that RG, unlike some similarly incapacitated persons, displays no apparent interest in sex, and he has not been observed to manifest any sexualised behaviour either with himself or with or towards others. He has been described by one social worker as “asexual”. Dr Xenitidis said that he prefers not to use that adjective or label, but would describe RG as someone who does not show any sexual behaviour or sexual interest.

For these reasons the order will include a declaration that RG lacks capacity to consent to sexual relations. It will be the duty of the local authority, as his carers, to take all reasonable steps to prevent him from being the victim of a criminal act, and the regular contact between Mrs SK and RG will have to be supervised to the extent necessary to ensure that there is no sexual touching between them. Mrs SK now accepts a condition of contact that she does not communicate to RG that she would like to have sexual relations with him, or go to the bedroom with him.

I turn to the status and continuation of the marriage itself. The evidence of Dr Xenitidis is that RG currently lacks any understanding as to what marriage is, or what it involves, and, therefore, currently lacks capacity under English law to contract a marriage. His disability appears to Dr Xenitidis to be so persistent and enduring that it is highly likely that he also lacked capacity at the time of the marriage in March 2009.

In the light of that evidence, and without opposition by any party, I will declare that RG lacks capacity to consent to, or contract, a marriage, and that (as a matter of English law) he lacked such capacity at the time of the marriage to Mrs SK in March 2009.

Those facts lead the local authority very strongly to submit and argue that the court should, alternatively or cumulatively: (i) declare that it is in the best interests of RG for the Official Solicitor to issue a petition of nullity on his behalf and to seek to obtain a decree nullity if the matrimonial court is satisfied that RG is entitled to such a decree; and/or (ii) declare within these proceedings that the marriage is not recognised in England and Wales. (I will for convenience call this a declaration of non-recognition)

The local authority have not currently issued a formal application for a declaration of non-recognition, but I could, of course, permit them to do so. Until recently, the local authority anticipated that the Official Solicitor would, or probably would, support the presentation of a petition for a decree of nullity, and it is only because the Official Solicitor does not now do so (and if the court were to agree with the Official Solicitor) that the local authority now contemplate the alternative of seeking a declaration of non-recognition under the inherent jurisdiction of the High Court.

That the High Court has power in appropriate circumstances to make such a declaration was clearly established by the Court of Appeal in the case of Westminster City Council v C and others [2009] 2WLR 185. In the later case of XCC v AA & BB & CC & DD [2012] EWHC 2183 (COP), in a judgment handed down on 26 July 2012, Mrs Justice Parker both directed that the Official Solicitor should issue a petition for nullity and declared under the inherent jurisdiction of the High Court that the marriage in question is not recognised in England and Wales.

There was, however, a significant factual difference between that case and this one. In that case (see paragraph 5 of the judgment) there was no contact of any kind between the incapacitated person and her “husband”. Here, there is continuing regular and beneficial contact between RG and his wife. Further, there does not appear to have been any issue in that case as to domicile or the relevant law as to capacity.

It is fundamental that capacity to marry is governed by the law of the respective parties’ domicile at the date of the marriage. The local authority, through the erudite Miss Pratley, accordingly accept that before this court could declare that the marriage is not recognised in England and Wales, some consideration would have to be given to the questions: What was RG’s domicile on the date of the marriage, and did he have capacity under the law of that domicile?

RG’s domicile of origin appears clearly to be India (or some autonomous legal system within India) where his Sikh father and his family were still living at the date of his birth. RG’s father later moved to England, bringing his family here. However, as I have mentioned, he and his wife retained, and she still retains, valuable property in India to this day. They often returned to India on visits. The father died suddenly and unexpectedly in England, from a heart attack at a relatively young age, but his ashes were returned to India for scattering.

The question whether the father acquired an English domicile of choice during RG’s minority, and whether, therefore, RG acquired an English domicile of dependence during his minority, would require evidence, which is not currently available or before the court. If, indeed, RG remained domiciled within India at the date of his marriage, then there is currently no evidence as to the relevant foreign law in relation to capacity or consents to marriage.

For these reasons the local authority did not, and could not, finally pursue any application at the present hearing for a declaration of non-recognition. If they do decide at some later date that they do wish formally to apply for such a declaration, and that it is proportionate and justifiable in this particular case to do so (having regard, amongst other matters, to the considerable legal costs that have already been incurred), then they will issue a formal application, supported by the necessary evidence of, amongst other matters, domicile and any relevant foreign law.

There remains, therefore, the question of whether I should declare that it is in the best interests of RG that the Official Solicitor should present a petition for a decree of nullity on his behalf, there being no doubt that RG personally lacks any capacity to make a decision whether to do so.

The Court of Protection cannot itself annul a marriage. So in relation to a petition for nullity all I can do in the present proceedings is authorise, and, if necessary and appropriate, direct that the Official Solicitor presents and pursues one. For that purpose, the actual decision where RG was domiciled on the date of the marriage, would fall to be made, not by me in these proceedings, but by the matrimonial court, once seised with a petition for nullity.

For the purpose of this part of this judgment I am willing to assume (without so holding) that on the date of the marriage RG was, indeed, domiciled in England and Wales. Under the law of this domicile he lacked capacity to contract a marriage. The local authority consider that, that being so, the marriage should be annulled, both in his own best interests, but also as a matter of policy.

I have been told that within the area of this particular local authority there are a number of incapacitated adults who have been the subject of arranged or forced marriages, and that it is important to send a strong signal to the Muslim and Sikh communities within their area (and, indeed, elsewhere) that arranged marriages, where one party is mentally incapacitated, simply will not be tolerated, and that the marriages will be annulled.

Thus, as Miss Pratley put it in paragraph 51 of her skeleton argument: “…it is the position of the local authority that RG’s lack of capacity represents an overarching and compelling public policy reason for the marriage to be brought to an end. The local authority submit that this overrides the strongly held wishes and feelings of RG [that he wishes to remain married].”

In the present case, however, there is no more room for a policy based decision than there is for me to give any consideration at all to, or to attach any weight at all to, the plight or wishes of Mrs SK, save to the extent (if any) that the plight or wishes of his wife might be factors that RG would be likely to consider, if he were able to do so, for the purpose of section 4(6) of the Mental Capacity Act 2005.

Section 11 of the Matrimonial Causes Act 1973 prescribes the only grounds on which a marriage shall be void. These include that the parties are within the prohibited degrees of relationship or either is under the age of 16. If the marriage was void on one of the grounds in section 11, I would have permitted and directed the Official Solicitor to present a petition of nullity; for if the marriage was in law void from the outset it would be preferable and in the best interests of RG formally to establish and record that fact by a decree of nullity.

However, the Act places issues of capacity to consent in section 12, which prescribes the grounds upon which a marriage shall be voidable. One such ground under paragraph (c) is: “That either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise.” By section 16 of the Matrimonial Causes Act a decree of nullity in respect of a voidable marriage operates to annul the marriage only after the decree is made absolute.

The effect of these provisions is that a marriage which, under section 11, is void, is void from the outset, and the decree serves only to establish and record that voidness. But a marriage which, under section 12, is voidable, is valid unless and until avoided by a decree absolute of nullity. There is, therefore, a discretion in the parties to the marriage. Either or both of them may seek to avoid it. They may, alternatively, each decide to take no action, in which case the marriage remains valid and subsisting.

Since RG in the present case patently lacks capacity to make any decision at all with regard to his marriage, it is within the power of the Court of Protection, and in this case is also the duty of the Court of Protection, to make that decision on his behalf.

Section 1(5) of the Mental Capacity Act 2005 requires that the decision “must be… made in his best interests.” In my view, that precludes application of any policy considerations, and also precludes consideration of the position of Mrs SK save insofar as relevant under section 4(6).

In making the best interests decision, I must, and do, apply each of the following sub-sections of section 4 of the Act, namely: (2), (3), (4), (6), (7) and (11). It is no longer necessary, after that Act has been in force for several years, to set them out verbatim.

It is not likely that RG will ever have capacity in relation to this matter (section 4(3)). I have personally met RG prior to this judgment. He has participated, so far as reasonably practicable, in the decision by means of his interviews with Dr Xenitidis, his own solicitor, the independent social worker, Mr Wall, and by meeting myself and others (section 4(4)). I have consulted and taken into account the views of the local authority, RG’s surviving parent, and, indeed, his wife, by their engagement in these proceedings (section 4(7)).

The present wishes and feelings of RG himself, so far as they can be ascertained, are quite clear. Although he has such little understanding of marriage that he lacked capacity to marry, he, nevertheless, frequently uses the words “wife”, and “marriage”, or “marry”, in relation to Mrs SK. She visits him regularly, several times a week. Although the visits are quite short, he reacts to them with pleasure and appears to gain pleasure from the visits and from the relationship.

RG reacts badly to references to divorce. Mr Dipak Mohan, his key social worker, said that if RG is told that his marriage is at an end, he is likely to take it extremely badly. When his brother told him that Mrs SK might be deported, he reacted extremely badly and aggressively.

At this point I summarise my own meeting with RG this morning. The one thing he said to me, spontaneously at the outset, is that he wants to go to India. In answer to questions from Miss McFarlane he said, very clearly, that Mrs SK is his wife. She comes to visit him. He said (incorrectly) that he sees her every day. He would like to live with her. He said, later, that she loves him, and he loves her. He is sad when she leaves and goes to the bus stop.

What he likes best is playing his drums at Bangra every Tuesday. He is good at drums. He likes the dahl and saag that Kwadwo cooks for him. He wants to go to the seaside. He likes swimming in the sea. Later, after GG had spoken to me, RG was asked, again, if there was anything else he wanted to tell the judge, and he said he wanted to go to the seaside.

In my view (and this is not in dispute), based both on the evidence and on my own meeting with him, the wishes and feelings of RG, insofar as they are ascertainable, are clearly to remain married to Mrs SK, and not to petition for a decree of nullity.

Application of section 4(6)(b) and (c) is much more speculative. Since RG has had lifelong learning difficulties, it is difficult to ascertain or discern his beliefs and values. He has, however, some awareness of his being a Sikh, and does, in a simple way, participate in some of the practices and observances of that culture. If he had had the capacity to contract the marriage it does not seem likely that he would have wished to bring shame and ostracism on his wife by “divorcing” her or seeking to annul their marriage. To that very limited extent only do I take into account at all the position of Mrs SK.

In her closing submissions, Miss Isaacs QC, having taken express instructions from the office of the Official Solicitor in London, said that the Official Solicitor cannot identify any benefit to RG in annulling the marriage, from which he appears, currently, to gain pleasure. If and insofar as the continued subsistence of the marriage may give inheritance opportunities to Mrs SK (since RG does currently have some modest funds and may later have a relatively sizeable inheritance from his parents) that can, if appropriate, be avoided by the making of a statutory will.

In the forefront of Miss Pratley’s submissions is policy. The position of the local authority is encapsulated in paragraphs 7 and 8 of her cogent, written, outline submissions dated 28 June 2013, where she wrote:

“7: It is plainly a relevant circumstance that RG lacked the capacity to enter into the marriage, and continues to lack that capacity. Indeed, his lack of capacity is a fact of such importance that it would be difficult to argue it is not the starting point (or, if not the starting point, a circumstance of very significant weight) in determining best interests. It is submitted on behalf of the local authority that it is an overarching and compelling consideration in the best interests analysis. Whilst it is not asserted that it could never be in a person’s best interests for the court to decide not to take steps to end their marriage in these circumstances, only in exceptional cases will such a conclusion be sustainable.

8: This is because the court would otherwise make a decision, the effect of which would be that RG remain married in circumstances where he lacked capacity to marry, on the basis of circumstances, such as RG’s wishes and feelings and the impact on RG if his marriage was brought to an end, with little or no weight given to the fact of his incapacity on the basis that he is already married. It is impossible to reconcile this with the fact that a court could never take such considerations into account in allowing RG to marry in the first place. This would undermine the legal foundation of the institution of marriage in England and Wales, where consent is a fundamental element of a legally unassailable and enduring marriage contract.”

As later elaborated in paragraphs 11 to 13 of her outline closing submissions, the argument of Miss Pratley is (correctly) that no registrar would ever have celebrated a marriage with RG in the first place. Therefore, argues Miss Pratley, the response of English law must now be to annul it.

I accept the premise that no registrar (if properly appreciating and informed as to the lack of capacity) would have celebrated a marriage in England in the first place, but I do not accept that the conclusion that the marriage should now be annulled necessarily follows from the premise. I do not accept it because the present decision has to take into account the facts as they now are, and to make a best interests decision based upon them, including, but not giving “overarching” weight to, the lack of capacity.

During her final oral submissions Miss Pratley could identify few positive benefits from now annulling the marriage, or dis-benefits from permitting it to continue. She said, correctly, that there is now animosity between Mrs SK, the wife, and Mrs SKG, the mother. That is, on the evidence, true, but it does not seem a sufficient reason now to annul the marriage and exclude the wife from his life, when, as is the case, RG gains at least as much pleasure from his relationship with his wife as from that with his mother.

Miss Pratley pointed out, also, that certain legal consequences may flow from the continued status of Mrs SK as the wife. These include inheritance rights, and a right to be consulted, as nearest relative, under the Mental Health Acts. Both of these rights can, however, be displaced if it is appropriate to do so.

Miss Pratley concluded her final submissions with the eloquent, rhetorical question and flourish: What is the purpose of continuing the marriage when there can be no sex, no co-habitation and no possibility of their travelling together to India? Whilst marital sex and co-habitation are, of course, normal incidents of a normal marriage between people of normal capacity, neither is essential to a marriage.

Unquestionably, RG cannot gain the support, pleasures and benefits of a marriage, as normally understood. He cannot gain many other of the pleasures of life that are available to persons of normal capacity. But still he gains some pleasure and some benefits from this marriage and relationship.

Like the Official Solicitor, I am completely unpersuaded that his best interests require or justify that it is now annulled. For these reasons I will exclude from the otherwise agreed order in relation to RG those parts which provide for the Official Solicitor now to present a petition for the marriage to be annulled.

In all other respects I make orders by consent in relation to each of GG and RG.

As I part from the case I would like to compliment the local authority on the great lengths they have gone to, and the expenditure they must daily incur, to provide for each of these needy and disadvantaged gentlemen as secure and fulfilling a life as possible, cared for by dedicated support workers. I express the hope that each of GG and RG will gain as much pleasure and fulfilment from their lives as is possible for many years to come.