AB v HT & Ors

These complex and difficult proceedings in the Court of Protection concern a 37-year-old woman, hereafter referred to as M, who (as I have found, for reasons set out below) at present lacks capacity by virtue of a combination of psychotic illness and acquired brain injury. The parties to the proceedings are the applicant, M’s father, hereafter referred to as AB; her aunt, hereafter referred to as HT; the local authority for the area where HT, and currently M, live, namely the London Borough of Hammersmith and Fulham; and a man hereafter referred to as MS, with whom M went through a religious ceremony of marriage in 2013. A dispute has arisen concerning a number of issues about her past, present and future which has necessitated a lengthy and unusual fact-finding hearing. This judgment sets out my conclusions on the disputed matters of fact, together with an analysis as to her capacity, and orders made following my findings.

This judgment is arranged in the following sections:

M was born in Somalia in 1980, the oldest of seven children. She lived in that country with her extended family until she was 7. She attended a local school but it was noted that she was unable to perform as well academically as her siblings. Reports in her medical records indicate that she witnessed many violent incidents during her childhood.

Subsequently, although the precise dates are unclear, M spent time with her family in Italy and Holland. As a teenager, she attended night school, undertaking a business apprenticeship. She then left home and supported herself for some time, working in offices and warehouses on an agency basis and sleeping on friends’ floors.

In 2002, she moved with her younger sister to Australia where she married an Ethiopian man. According to her medical records, her husband was physically and verbally abusive to her and the marriage broke down. In June 2004, she moved to this country to live with her father, AB, who had settled here some years earlier.

In 2005, she was referred for psychiatric examination because of concerns about her behaviour including social isolation, sitting and doing nothing for hours, and wandering aimlessly. The initial diagnosis was that she was suffering from either schizophrenia or psychotic depression. Treatment with an antipsychotic drug and anti-depressant medication was started and she was noted to show a positive response over the following weeks.

In November 2005, however, M was physically attacked and raped and subsequently admitted to hospital with a severe head injury for which she required surgery, together with a number of fractures to her facial bones. She underwent a left temporal craniotomy and was in hospital for some weeks. An assessment by Mr Badwan, consultant in rehabilitation medicine, noted she was suffering from amnesia, disorientation in time and space, and absence of spontaneous speech. Subsequently, her behaviour gave rise for further concern when she wandered off the ward. A further review by Dr Badwan noted persistent memory deficits. In March 2006, a neuro-psychiatrist concluded that her underlying condition was hebephrenic schizophrenia. In March 2006, she was admitted under s.3 of the Mental Health Act 1983 and treated with risperidone and other antipsychotic antidepressant medication. After three months, she showed an improvement and was discharged into the care of her father, AB, with community care follow up by the mental health team.

It is plain from the contemporaneous medical records and other documents that M suffered severely as a result of this attack, both physically and psychologically. In his oral evidence before me, however, her father AB asserted that he did not think she had suffered any or any significant psychological damage.

In 2008, M underwent further neurosurgery for the insertion of a titanium plate in her head. In August 2009, her father was appointed her deputy for property and affairs due to her lack of capacity to make decisions concerning those matters. Thereafter, M attended a rehabilitation facility at St Andrews Hospital in Northampton and also a women’s day centre to assist with her rehabilitation and socialisation. Staff at the centre reported concerns about her safety and well being. She was noted to be distressed and preoccupied, and reported that her father was crazy and had threatened to kill her and take her out of the country. She also alleged that ladies from the Muslim community hit her and shouted at her to make her wear a hijab which she said made her unhappy. The safeguarding team, however, concluded that there was no evidence that she was being abused by her father. In 2011, she made an allegation to her community psychiatric nurse that her father had assaulted her after an argument. Subsequently, however, she said that that had not happened. In 2012, a psychiatrist reviewing her condition described her as coherent but noted that she had ongoing hallucinations. A further psychiatric review in February 2013 concluded that she was mentally stable and she was discharged back to the care of her GP.

On 15 August 2013, M took part in a religious marriage ceremony with MS, the fourth respondent in these proceedings, at the Northampton Islamic Centre. The circumstances of this ceremony are a central feature in this case and I shall consider the evidence about it below. For the next few weeks, M lived with her father and her putative husband. In October 2013, M underwent further surgery at the John Radcliffe Hospital in Oxford to trim the titanium plate and reclose the wound. At or around the same time, her father, AB, went to Switzerland to visit his wife, leaving M at his home in Northampton with MS.

On 11 November 2013, M was visited in her home by her aunt, HT. It is HT’s case that she found the property in an unsatisfactory and dirty condition, with M in poor health, and that she witnessed MS speaking aggressively towards her. HT asserts that M asked her not to leave without her and HT therefore decided to take her to London with her. Prior to leaving Northampton, HT reported her concerns and allegations of forced marriage to the police.

In London some weeks later, M was referred for a mental health assessment and admitted to a mental health unit under s.2 of the 1983 Act on the grounds that she would not comply with her medication, had attempted to leave the property without proper clothing, had exhibited verbal aggression, was suffering from incontinence, and was talking to herself. On admission she was found to have disordered thoughts and incoherent speech, and to be agitated, irritable, and unaware of the risks from her wandering behaviour. She was again diagnosed as suffering from hebephrenic schizophrenia and treated with antipsychotic medication. Gradually her mental state improved and her symptoms diminished. In July 2014, she was discharged into the community into the care of HT and was allocated a community psychiatric nurse.

In October 2014, nearly a year after HT had removed her, M’s father, AB, complained to the police that M had been kidnapped by HT for financial gain. Prior to that point neither he nor MS had apparently taken any active steps to bring about M’s return to Northampton. In November 2014, a social worker undertook a capacity assessment and concluded that M did not have the capacity to make decisions about where she should live. On 17 April 2015, M’s father filed an application in the Court of Protection asking the court to decide whether M was capable of deciding where she should live, and seeking an order that she should reside with him and that he be appointed her personal welfare deputy, to make decisions in respect of where she should live and as to her medical treatment, in addition to the property and affairs deputyship he already held.

On 21 May 2015, District Judge Hilder made various interim declarations as to capacity, invited the Official Solicitor to act as M’s litigation friend, and joined both HT and the local authority for the area where HT lives as respondents to the application. On 9 July 2015, District Judge Marin joined MS as the fourth respondent. He further declared that in the interim it was in M’s best interests to reside with HT and to have no contact with her father or MS. He further suspended the father’s deputyship for property and affairs and directed that M’s treating psychiatrist, Dr O’Halloran, prepare a report under s.49 of the Mental Capacity Act 2005. In her report dated 28 August 2015, Dr O’Halloran confirmed the diagnosis of hebephrenic schizophrenia. She described M’s condition as enduring and thought it unlikely that she would recover significantly. It was Dr O’Halloran’s opinion that M’s mental disorder was of a nature and degree sufficient to impair her cognitive function including language, comprehension, communication and memory, and her emotional functioning. She noted that M had also suffered the traumatic brain injury in 2005 from which she had a number of sequelae primarily relating to memory, judgment and other cognitive skills which together represent a severe cognitive impairment. In addition, she noted that M’s father had raised the possibility that M had a pre-existing mild learning difficulty. At a further interim hearing in September 2015, District Judge Marin ordered a supplemental report from Dr O’Halloran involving a review of M’s GP records. In her supplemental report dated 21^st September, Dr O’Halloran reported that the review of the GP records for 2013/2014 had not altered her opinion. She noted that a GP entry of 2^nd August 2013, “albeit using a lay description, suggests a presentation similar to that which has been recorded in the subsequent mental health notes and to that noted by me in subsequent reviews. It fits with the essentially enduring nature of her hebephrenic schizophrenia and the sequelae of her traumatic brain injury.” In October 2015, Dr O’Halloran filed a third report responding to questions raised by some of the parties.

Meanwhile, M’s mental health deteriorated and in November 2015 she was readmitted to hospital following further episodes when she had been found wandering.

The contested hearing as to capacity was listed before District Judge Marin in December 2015, but in the event he concluded that it should be adjourned to be heard by a High Court judge. Thus the matter first came before me in April 2016. On that occasion, I gave further directions including (a) for the filing of a schedule of findings of fact sought by HT and the local authority and responses from the father and MS; (b) the joint instruction of an expert in Islamic law to advise as to whether the ceremony of 15^th August 2013 was a valid marriage under Islamic law and for the implications for M of a finding that it was either a non-marriage under English law and/or invalid under Islamic law, and other matters relating to the ceremony, together with the steps required under Islamic law to bring the marriage to an end in the event that it is invalid; (c) an updating report as to capacity from Dr O’Halloran; (d) a report from an independent psychiatrist, Dr Grace, as to capacity and (e) a final hearing to be listed in November 2016.

A further hearing took place before me on 29^th June 2016 to consider the question of interim contact and the proposal by the local authority to expand the scope of Dr Grace’s instruction. After hearing argument, I decided that it was in M’s best interests to have indirect contact with her father by way of cards, letter and pre-recorded video message, and that direct contact may take place between M and her father should all parties (except MS) agree that it was in her best interests, having regard to her wishes and feelings. I ordered that it was not in M’s best interests to have any interim contact with MS. As
Dr O’Halloran was unable to complete the capacity assessment previously ordered, I expanded the scope of Dr Grace’s instruction as requested. I further ordered MS to disclose documents relating to his immigration status. Subsequently, MS objected to such disclosure but by order of 27^th September 2016, Peter Jackson J ordered the Home Office to supply the local authority with copies of documents relating to MS’s immigration status.

A pre-hearing review took place before me on 6^th October 2016. By this point, M was being detained in hospital under s.3 of the 1983 Act. Further directions were given in respect of MS’s immigration documents and as to the expansion of the allegations sought by the local authority against the father and as to witnesses to be called at the hearing.

By the time of Dr Grace’s examination, M had been detained under s.3 for several weeks and had been the subject of assessment and report by her new treating psychiatrist, Dr Andrews. Dr Grace noted that M’s current psychotic symptoms were of sufficient severity to interfere with her concentration, comprehension and planning and therefore affected the assessment of both her current and historical capacity.

In the event, the hearing in November 2016 had to be adjourned because counsel was taken ill. The matter was relisted for a final hearing in April 2017. Further directions were given subsequently for updating assessments as to capacity. Shortly before the hearing, the father withdrew his instructions from his solicitors and sought an adjournment. At a hearing on 6 April, I adjourned the hearing on AB’s assurance that he intended to instruct lawyers and to be fully represented at the contested hearing which was relisted for seven days at the end of June. I made a further declaration that it was in M’s best interests to have indirect contact with her father. No application for interim contact was made on behalf of MS at that stage. I also made further case management directions, including that MS should file a further schedule of allegations of financial misconduct in the event that he wished to pursue an argument that HT had misappropriated funds belonging to M. Further case management directions were made by consent on 6 June.

The hearing eventually started on 26 June 2017. Sixteen witnesses gave oral evidence, including Dr Andrews, Dr Grace, Dr O’Halloran, Professor Rehman, an expert in Islamic law, the Imam who had conducted the ceremony on 15 August 2013, six witnesses who had also attended the ceremony, one social worker, one community psychiatric nurse, AB, HT and MS. Six days had been allocated for the taking of oral evidence, in the hope that submissions could be delivered on day seven. In the event, for various reasons, that timetable was dislodged and the hearing had to be adjourned part-heard until the end of July. Following completion of the oral evidence on 28 July, I gave directions for submissions factored to take account of the long vacation, directing the parties should simultaneously file and serve written submissions by 18 August 2017, and giving them permission to file and serve a response to any written submissions filed by any other party to the proceedings by 7 September 2017. I also made provision for the parties to request an oral hearing. Written submissions were duly filed, but due to a misunderstanding I was under the impression that a request for an oral hearing had been made when in fact this was not the case. That, together with the pressure of other cases, has delayed the production of this judgment, for which I apologise to the parties.

I am very grateful to counsel, and to their instructing solicitors, for their hard work on behalf of their clients, and their assistance, in particular in preparing comprehensive submissions on the issues arising in this difficult case.

The issues arising for determination can be summarised in broad terms as follows:

The issues relating to M’s capacity at the start of the hearing were (1) her current diagnosis and condition; (2) her prognosis; (3) her current capacity; (4) the prospects of recovering capacity in future, and (5) her historic capacity, in particular whether she had capacity to marry and have sexual relations at the time of the ceremony in August 2013. In the light of developments during the course of the hearing, the last issue can be dealt with relatively shortly.

I summarised the law relating to capacity under the Mental Capacity Act 2005 in my judgment in CC v KK [2012] EWHC 2136 (COP) [2012] COPLR 627 at paragraphs 17 to 25. Although the circumstances of that case were very different from those of the present case, the applicable principles are as summarised in those paragraphs.

Medical evidence was provided from the following witnesses: reports and answers to supplementary questions from M’s former treating psychiatrist, Dr O’Halloran, dated August, September and October 2015 and November 2016; letters and reports from her current treating psychiatrist, Dr Andrews, dated October 2016, March 2017 and June 2017; and a report and letter from Dr Janet Grace, consultant neuropsychiatrist jointly instructed as an expert witness, dated November 2016 and March 2017. All three doctors gave oral evidence at the hearing. Also included in the court papers were several capacity assessments carried out by a social worker, Althea Rowe, in March 2014.

Current diagnosis and condition

In his first report dated 20 March 2017, Dr Andrews confirmed from the study of the medical records that M had been first formally diagnosed with schizophrenia in 2005 and that it was likely that there had been a lengthy period of prodromal and untreated illness, with emergent features of disorganised and disintegrated behaviour accompanied by evidence of auditory hallucinations, fragmentary delusional beliefs, negative syndrome and a progressive deterioration in psychosocial functioning. He described this profile as characteristic of the received diagnosis of hebephrenic schizophrenia. He described her illness thereafter as having pursued a chronically disabling and treatment refractory course. It had been difficult for her to maintain adherence to treatment and multiple interruptions had resulted in a series of relapses. The subsequent physical assault in 2005, resulting in a subarachnoid haemorrhage requiring neurosurgery followed by lengthy rehabilitation, had exacerbated her problems. She has therefore experienced significant deficits in cognitive functioning to which both the chronic psychosis and traumatic brain injury have contributed.

As at March 2017, M continued to present with significant residual manifestations of her psychotic illness. Serial assessments had demonstrated her mental state to vacillate markedly. On occasion she presented as relaxed, spontaneous and able to offer moments of social reciprocity and dialogue. For the most part, however, such positive findings were subsumed by significant degrees of perplexity and fretful occupation when she presents as highly distracted by hallucinations. Dr Andrews advised that her affect remained blunted and sometimes incongruous, and her thinking significantly impoverished and profoundly disorganised. Such fragmentary accounts as she is able to articulate of her residual persecutory delusions and auditory hallucinations appear highly distressing to her. It is not unusual, however, for M to assert that she feels well and there is “nothing wrong”. As a result, over the years, her commitment to maintaining treatment programmes has been erratic.

In oral evidence, cross-examined by Mr Bagchi on behalf of M, Dr Andrews confirmed that M still met the requirements for detention under the 1983 Act. Although there had been some improvement in her condition, the manifestations of mental disorder were still very much present and she continued to require a great deal of support. Her insight into her condition was limited – given the choice, she would leave hospital and cease treatment.

Prognosis

As stated above, M has now been started on clozapine. Dr Andrews described this as a critical point in her psychiatric treatment, representing the best available strategy for dealing with treatment-resistant psychosis in terms of centre control, cognition, daily functioning and global well-being. He advised that it would take some time to establish an adequate and therapeutic dose. Once achieved, a minimum period of at least six months, probably longer, would be required to determine her optimal response. When her psychosis is more controlled, a more detailed neuropsychological assessment is proposed to determine the extent of her cognitive deficits, and preserved functioning and strengths, to inform future management strategy and goals.

Dr Andrews concluded his first report in March 2017 by giving a “guarded prognosis” reflecting the combined impact of the likely period of untreated illness in the past, the limited response and interruptions to previous treatment strategies, and the additional impact of M’s acquired brain injury. He thought it likely that she would continue to suffer enduring psychotic symptoms, and deficits in cognition and psychosocial functioning. In March 2017, he anticipated a further period of between eighteen and thirty-six months in-patient care. It was too early to determine what sort of care environment would be appropriate following discharge, although Dr Andrew thought it very likely that she would continue to require a highly supported specialist placement providing twenty-four hour care and a high level of psychiatric after-care.

In a supplemental report shortly prior to the hearing (8 June 2017), Dr Andrews reported some early indication of subtle improvements in M’s mental state and daily functioning. Whilst still liable to show marked social isolation, there had been some improvement in her participation in and tolerance of structured therapies. The focus at that stage was on plans to address problems with her titanium cranioplasty plate which was causing her pain and at some points protruding through the skin. As a result, further surgery was under consideration.

In oral evidence, Dr Andrews confirmed that it would be one to two years before he and his colleagues would be in a position to plan for M’s discharge from hospital. He expressed concern that, if contact with her father were to be ordered at that stage, there might be an aggravation of symptoms. He was also concerned about the need to keep M engaged with the current treatment programme and the proposed further surgical intervention. It was his view that there was only so much she could cope with at that point. Although there may be some improvement as a result of the treatment, his conclusion was that “in any event, this is a poor prognosis patient … We may not get rid of all the symptoms [of the psychosis] and certainly won’t get rid of the injury, but may improve her well-being and improve those elements of her cognitive impairment that are affected by psychosis”. He thought she would continue to require access to 24-hour support, perhaps in the community. Decisions about her long-term placement would have to be taken “much further down the line when we have a clearer picture of her response to treatment”.

Capacity assessment in 2017

Dr Andrews carried out a capacity assessment in March 2017, based on M’s clinical presentation in the period whilst under his care since November 2016. At examination on 28 March 2017, the mental state findings of schizophrenia, plus the likely additional impact of cognitive deficits secondary to an acquired brain injury, satisfied the requirement of s.2 of the 2005 Act for “an impairment of, or disturbance in, the functioning of the mind or brain”. The diagnostic test for lack of capacity was therefore satisfied.

Dr Andrews expressed the opinion that, as a result of the continuing impairment and disturbance, M currently lacked the capacity to make or communicate decisions in six areas – residence, care arrangements, contact with others, whether to marry, consent to sexual relations and giving evidence. Dr Andrews provided evidence from his conversations with M during his examination on 28 March to support his conclusions that she lacked capacity in these six areas.

In her report in November 2016, Dr Grace reported that carrying out a capacity assessment at that stage had been complicated by M’s disorders of thought and hallucinations so that her psychosis interfered with her ability to concentrate on the questions being posed. Thus her current mental health affected assessment of both her current and historical capacity. Dr Grace advised that, in order to enhance capacity, she needed ongoing treatment for her schizophrenia and emotional trauma which would give her the best chance of making her own capacitous decisions in future.

Future capacity

Dr Andrews put forward the following prognosis as to the possibility of a recovery of capacity:

“Whilst hopeful of progress based on what has been achieved in a relatively short period of time since M’s transfer to my care, I would not wish to raise an expectation that she may regain capacity. The Court should be assured that M’s further rehabilitation and treatment reflect measures to support her capacity and, if not achieved, her ability to become more participant and able to express her views and feelings so that they may inform determinations of best interests. I anticipate being in a position to advise the Court by mid-December 2017, at the earliest, on the outcome of M’s further rehabilitation and treatment under my care.”

In her report in November 2016, Dr Grace advised that a further reassessment of M’s capacity would be appropriate once she had completed specialist psychiatric rehabilitation and had enjoyed a period of stability in her mental health. Asked for further comment in March 2017 following receipt of Dr Andrews’ report, Dr Grace remained of the view that assessment of capacity at that stage will be affected by her schizophrenia and would not reflect her at her best in terms of making long-term decisions. She also expressed concern that repeated assessments would cause M distress and impinge negatively on her engagement with the treatment programme. She therefore advised leaving complex capacity assessments until the treatment had stabilised. She thought it likely that this would take at least a year but possibly significantly longer. In oral evidence at the end of June 2017, Dr Grace stated that she thought it would be twelve months before the schizophrenia had abated to a level at which it would be appropriate to consider whether a further capacity assessment should be carried out. She added that the proposed further surgery could add to the delay before a further assessment was appropriate.

Capacity to marry and consent to sexual relations in 2013

At the outset of the hearing, it was the local authority’s case, supported by those representing HT, that M had lacked capacity to marry and to consent to sexual relations at the time of the ceremony of marriage in August 2013. The evidence on which the local authority relied was that of Dr O’Halloran. Neither Dr Andrews not Dr Grace was willing to express an opinion as to whether historically M had lacked capacity, principally because of the reports of fluctuating psychotic symptoms. In oral evidence, Dr Grace said that she would be uncomfortable about assessing M’s capacity in the past because it would have been dependent on the level of her schizophrenia at the time.

In her report of August 2015, Dr O’Halloran reported that she found it difficult to determine whether M had had the capacity to marry in 2013. She thought, however, that M’s cognitive deficits had not altered significantly since 2006 because her schizophrenia, and the sequelae of her traumatic brain injury, were enduring. She thought it likely that the cognitive deficits in 2013 had therefore been the same as they were at the time of her examination in 2015. As to the capacity to consent to sexual relations, Dr O’Halloran added that, as with the capacity to marry, it was difficult to comment on her capacity in July 2013, but her mental capacity was enduring, and in Dr O’Halloran’s opinion would not have been significantly different at the time of the marriage ceremony.

In assessing M’s capacity to marry in 2015, however, Dr O’Halloran had stated that:

“in my view M lacks capacity to make a decision to marry as I could not establish that she was able to retain the information or weigh it in the balance.”

Furthermore, when assessing M’s capacity to consent to sexual relations in 2015, Dr O’Halloran had stated:

“This was the most difficult capacity issue to assess due to her distress. From M’s brief and contradictory responses, I could not be satisfied that she was demonstrating that she had an understanding of what is involved physically or emotionally in having sex.”

In her oral evidence, Dr O’Halloran conceded that this had been “clumsy wording” because it suggested that she had not started her assessment from a presumption of capacity. After further questioning, she revised her assessment, stating that she would now say she could not reach a conclusion as to whether at the time of her earlier assessment she had capacity to marry, adding later that she could not possibly say if M had the capacity to marry in 2013. It also emerged in the course of oral evidence that Dr O’Halloran had not had the assistance of an interpreter when carrying out her first assessment in 2015.

Following the concessions made by Dr O’Halloran in oral evidence, the local authority conceded that the statutory presumption that M had capacity to marry MS in August 2013, and thereafter to consent to sexual relations with him, was not displaced. I endorse the local authority’s position not to pursue this aspect. As Mr Bagchi observed in closing submissions, there is very little contemporaneous evidence as to M’s mental state in 2013 and, given the reported fluctuations in her symptoms, it is not appropriate to speculate as to the effect of her underlying difficulties on her cognitive functioning at that time. The Official Solicitor invites the court to conclude that the totality of evidence as to her functioning in 2013 does not displace the statutory presumption that she probably had the capacity to marry on 15 August 2013, and the capacity to have sexual relations, when she went through the ceremony of marriage to MS. On behalf of AB, Mr O’Brien voiced concerns that Dr O’Halloran’s erroneous approach to the assessment of these capacities may have had an adverse influence on best interests decisions, including as to M’s contact with her father.

As to M’s current capacity, there was no substantive challenge to Dr Andrews’ assessment on which the local authority and the Official Solicitor rely and which HT accepts. Through Mr O’Brien’s closing submissions, AB conceded the cogency of the evidence of the clinicians and accepted that, as he has not seen M for several years, he is unable to assert whether the presumption of capacity in relation to the relevant decisions has been rebutted. He recognised the cogency of the current evidence but ultimately left the decision to the court. In Mr Simblet’s supplementary final submissions, MS also accepted that he does not have direct information to challenge what is said about M’s current condition and capacity following the deterioration in her health in the last three years.

As to future capacity, however, the parties are in disagreement.

The local authority submits that the evidence is clear that M lacks capacity in respect of the six areas identified in the evidence and the court should now make final declarations to that effect. The local authority’s position is supported by those representing M and HT. On behalf of the Official Solicitor for M, Mr Bagchi submits that nobody can seriously challenge the clinicians’ conclusion that M is at present unable to take her own personal welfare decisions, or the opinion of Dr Andrews and Dr Grace that M is unlikely to recover that capacity in the foreseeable future.

On behalf of AB, Mr O’Brien submits that the court should not make final declarations as to capacity in the light of the evidence of Dr Andrews that there are signs that M’s psychotic symptoms are improving under the present clozapine treatment, and that a further assessment of capacity would be appropriate once the outcome of that treatment programme is known. Mr O’Brien submits that the course for which he contends is consistent with s.1(3) of the Act – “a person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success”. His position is supported by Mr Simblet on behalf of MS who draws attention to the obligation imposed on the court by s.4(3), when determining what is in M’s best interests, to consider whether it is likely that she will at some time have capacity in relation to the matter in question and, if so, when that is likely to be. In response, Mr Bhose for the local authority submits that those representing AB and MS may have misunderstood Dr Andrews’ evidence. Dr. Andrews did not say that a reassessment of M’s capacity might be made in December 2017 but, rather, that at that point a re-evaluation of M’s rehabilitation and treatment might be possible so as to indicate when in the future a reassessment of capacity might be undertaken. In addition, Mr Bhose drew attention to Dr Andrews’ overall pessimism as to M’s prognosis and the likelihood of her regaining capacity. On behalf of the Official Solicitor for M, Mr Bagchi submitted that, taken as a whole, the oral evidence of Dr Andrews and Dr Grace suggested a much longer timescale for recovery than the period of six months suggested on behalf of other parties. For those reasons, the local authority and Official Solicitor submitted that there is no justification in delaying a final declaration as to capacity or the ending of these proceedings.

Having considered the evidence and submissions on the issues arising concerning M’s capacity, I reached the following conclusions.

First, so far as historic capacity is concerned, I accept and endorse the consensus now reached by the parties’ representatives. I specifically agree with Mr Bagchi’s observation that there is very little contemporaneous evidence as to M’s mental state in 2013 and, given the reported fluctuations in her symptoms, it is not appropriate to speculate as to the effect of her underlying difficulties on her cognitive functioning at that time. I reached this conclusion having regard, in particular, to (1) the fundamental principles underpinning the MCA 2005, especially the presumption of capacity in s.1(2); (2) the complexities involved in any assessment of capacity, both as a matter of law under s.2 and 3 of the MCA and the associated provisions of the Code of Practice, and, as a matter of general clinical and professional practice, and (3) the specific complexities of M’s own condition, comprising as it does a mingling of two elements – a fluctuating psychotic condition and permanent brain damage resulting from the infected head injury – and the difficulties at any specific point of carrying out an assessment of her capacity, both in terms of process and analysis.

Secondly, so far as current capacity is concerned, I accept the medical evidence, in particular that of Dr Andrews, that M lacks capacity in the six areas identified – residence, care arrangements, contact with others, whether to marry, consent to sexual relations and giving evidence. In reaching that conclusion, I have applied the principles identified above to the evidence carefully provided by Dr Andrews and supported by others. Accordingly, this court now has the power to make decisions concerning disputed issues as to what is in M’s best interests.

Thirdly, so far as future capacity is concerned, I conclude that it is neither appropriate nor possible for this court to reach a conclusion about whether, and, if so, when, M might regain capacity. In making decisions as to her best interests, I must, as Mr Simblet reminds me, consider inter alia whether it is likely that she will at some time have capacity in relation to the matter in question and, if so, when that is likely to be. Having considered the evidence concerning those matters, I conclude that I cannot say whether, and, if so, when, it is likely that M will recover capacity in all or any of the six areas identified above. What is clear, however, is that, unlike many persons lacking capacity whose cases come before this Court, it is possible that M may recover capacity in respect of at least some of those areas. Dr Andrews is pessimistic concerning her overall prognosis but, on the other hand, is hopeful that the clozapine treatment will lead to an improvement in her condition to a stage where a reassessment of capacity will be possible at some point. It is impossible to predict when that point will arise, but, on the basis of the evidence of Dr Andrews and Dr Grace, I conclude that it is unlikely that it will occur until the second half of 2018 at the earliest. The importance of this is that the Court of Protection’s power to make decisions concerning M’s best interests in any particular area only continues for as long as M lacks capacity in that area. If and when she recovers capacity in any one of the six areas identified above, decisions concerning that area will be a matter for her and her alone. The fact that there is at least a possibility that M may recover capacity in one or more area in the future is plainly relevant to the best interests decisions to be made in the light of my findings below and to the question whether these proceedings should continue. I shall return to that issue at the end of the judgment.

As M currently lacks capacity, this Court has jurisdiction to make decisions concerning her best interests. The next step is therefore to consider the issues of fact arising between the parties.

The allegations and cross-allegations, and the parties’ respective responses, were set out in a series of lengthy schedules running to over one hundred pages. The schedules comprise: (a) findings sought by local authority and/or HT against AB and MS; (b) financial allegations against AB; (c) cross-allegations by AB against HT, and (d) cross-allegations by MS against HT. It would add disproportionately to the length of what is already going to be a regrettably long judgment to set out the schedules in full. In summary the findings sought are as follows.

Findings sought by local authority and/or HT against AB and MS

The local authority and HT allege that M did not want to marry MS and does not want to be married to MS. AB does not accept this allegation and asserts that, if M has said anything to that effect, it has been under HT’s influence. In the schedule, AB sets out a detailed response to this allegation which I shall consider below. MS responds that, so far as he is aware, M wanted to marry him, expressed her consent to marry him, and continued to want to be married to him whenever he has had any contact with her.

The local authority and HT further allege that AB coerced M into marrying MS. In particular, it is asserted that HT told AB on the day of the wedding ceremony that M did not want to marry MS and that AB responded “I’ll make her”. This allegation is denied by AB. MS’s response is that he does not believe that AB coerced M into marrying him but rather believes that M married him of her own free will.

Linked to these first two allegations are findings sought by HT alone. HT alleges that AB and MS failed to take any or any reasonable or proper steps to ascertain whether M had capacity to marry and/or concealed her mental health and/or her marriage from those who may have been concerned to ascertain her capacity. She further alleges that AB failed to take any or any proper steps to assist M to make a capacitous decision whether to marry. AB’s response, in summary, is that it is not possible to either accept or deny that steps were not taken to ascertain whether M had capacity to marry, as AB considered at the time that she did have capacity. He asserts that, as he is neither a mental health professional nor a lawyer, he would have consulted professionals had he had any concerns about her welfare, but he did not. He denies that he ever concealed either her mental health or her marriage. MS’s response is that he had no reason to believe, before or at the time of the marriage to M, that she lacked capacity. He believed, and continues to believe, that she had capacity to enter into an Islamic marriage. He was aware of her diagnosis of schizophrenia in 2005/6 from which it was said she had recovered and, having consulted his friend Dr Sheikh, concluded that she had no symptoms of any mental health conditions and “therefore… strongly believed that [she] had capacity to marry”. In the schedule, HT’s and AB’s respective legal representatives set out in some detail specific matters on which they rely in respect of these allegations. In so far as is relevant for my decision, I shall consider those matters further below.

The local authority and HT allege that MS paid AB £1000 for the marriage and that M did not receive the money. AB responds that the money was paid to M by MS. For his part, MS denies that he paid M £1000 for the marriage. The sum of £1000 was agreed as the dowry. On the day the marriage, he gave her the money in cash “which she told him to return but to which she had access as required by her”.

It is further alleged by the local authority and HT that MS married M to obtain immigration status and that AB knew that this was MS’s intention. MS denies that he married M for this reason. AB denies knowing that this was MS’s intention. In the schedule, it was asserted on his behalf that that AB has not asked MS about his immigration status.

The next allegation set out in the schedule by the local authority and HT was that, after the ceremony on 15 August 2013, MS and M engaged in sexual activity against M’s wishes. HT further asserted that AB took no steps to ascertain whether M had capacity to have sexual intercourse. In the light of the evidence given by Dr O’Halloran, however, these allegations were withdrawn during the hearing.

It is then alleged by the local authority and HT that, on 8 November 2013, HT went to AB’s home and found M had been locked in the house alone for twelve hours, and was in a poor condition, and distressed state, and that the property was dirty and unclean. During dinner that evening, MS shouted at M. MS denies these allegations. AB’s response is that he can neither accept or deny the allegation as he was not present but asserts in general terms that M often chose to spend time alone in the house, and that, when he left the property, her self-care was not poor and the property was neither dirty nor unclean.

It is alleged that, on 11 November 2013, M said to HT she did not want to stay at AB’s house and begged HT to take her back to London. MS’s response is that he does not believe this to be true. AB’s response is that he can neither accept nor deny the allegation as he was not present but he notes that an entry in a police officer’s notebook a few days later recorded that HT asserted that she had brought M back to London “solely due to the state of the property”.

It is alleged that MS did not take any steps to be reunited with M from November 2013 until after AB’s return from abroad after September 2014. MS agrees that he did not take any such steps. It is his case that he had informed AB by telephone of what had happened and that AB told him that he would handle the matter.

It is alleged by the local authority and HT that AB did not return to the UK until September 2014 and when he did return he falsely alleged that M had been kidnapped by HT. AB accepts that he did not return until September 2014. It is his case that M had been stable for many years and his priority during these months was caring for his wife and mother. He accepts that he did tell the police that M had been abducted because that is what he felt had happened.

Financial allegations against AB

In a separate schedule, the local authority and HT make a series of allegations of financial misconduct by AB.

The local authority asserts that, as at 15 November 2013, M’s Santander account, comprising her benefits, had a credit balance of £5469.21. Two further benefit payments were credited to the account at a later stage. By 21 October 2014, the balance was reduced to £1. In the intervening period, there had been approximately twenty-eight cash withdrawals by AB in various locations in Sweden and Switzerland. None of that money had been spent on M. The local authority makes a similar allegation in respect of M’s other account, with HSBC, comprising her compensatory monies from the Criminal Injuries Compensation Board in respect of her assault and rape in 2005. Between October 2013 and June 2015, over £6000 of that money was removed by AB in a series of cash withdrawals. The local authority asserts that AB dishonestly deprived M of the money with the intention of permanently depriving her of it or, alternatively that, in breach of his duties as her deputy, he spent the money on himself and third parties and not in M’s best interests.

AB’s various responses to these allegations in the schedule begin with the statement: “this, with deep regret, is accepted”. AB continues: “with the benefit of hindsight, AB realises that his doing so would not appear objectively to be in the best interests of his daughter. However, he considered at the time that M would support the decisions he made in this situation, given in particular the close bond that she had with her grandmother. In spending this money, his intention was never to permanently deprive M. He had the genuine held belief that the situation he found himself in was an emergency … In addition he always intended to repay any funds that were spent in full. He did not know that he would not see his daughter for almost 3 years, and so had no opportunity to do so. In addition, when spending these funds, he did so in the knowledge that he had previously spent a number of years (between 2004 and 2006) before M was in receipt of her welfare benefits… supporting his daughter single-handed. It is not accepted that AB acted dishonestly or with an intention to permanently deprive M of these funds.” It is his case that, “were she capacitous, M would have agreed to his using the money in fulfilling his duties to the rest of his (and her) family as a matter of last resort.” He adds that he always intended to seek further employment so that he could continue to support M.

The local authority further asserts that, at an earlier stage, between June 2011 and September 2013, AB spent over £2600 of M’s money on flights and other travel expenses for himself and third parties, on some occasions when accompanied by M but on other occasions when not. The local authority again asserts that, in doing so, AB dishonestly deprived M of the money with the intention of permanently depriving her of it or, alternatively that, in breach of his duties as her deputy, he spent the money on himself and third parties and not in M’s best interests. AB accepts (“with deep regret”) that he used the money as alleged, but states that he spent the money “with no dishonest agenda but rather as a matter of last resort” and reiterates that he acted in the knowledge that he has supported M throughout her adult life, that he believed she would support his reasons for spending the money, that he never intended to deprive her permanently of the money, but always intended to find employment so he could continue to support her.

The local authority further alleges that, earlier, in September 2013, AB transferred the sum of £2000 from M’s Santander account to a third party and that, in doing so, he again dishonestly deprived M of the money with the intention of permanently depriving her of it or, alternatively that, in breach of his duties as her deputy, he spent the money on himself and / or a third party and not in M’s best interests. AB again accepts (“with deep regret”) that he transferred the money to his daughter-in-law for urgent repairs to her home. He asserts that his daughter-in-law subsequently repaid £1700 to AB and paid the balance of £300 to a charity at AB’s direction on M’s behalf to fulfil religious obligations to give a proportion of annual income to charity. The sum of £1700 was retained by AB to cover household expenses up to March 2015 “as he had no other funds coming in at this time, and from his point of view he and M were at risk of losing their home”. AB does not accept that in doing so he was acting dishonestly.

HT further alleges that AB breached assurance to the Office of the Public Guardian that he would keep all of M’s damages in an Aman account and only use the money in an emergency, and continued to spend her money after she left his care and continued to claim carers allowance for her during the time he was out of the UK and after HT had removed M to London. AB denies breaking his assurance to the OPG but accepts that he spent M’s money as described above. He accepts that he continued to claim her carer’s allowance for some months after she left his home, believing and intending that she would return to live with him.

Cross-allegations by AB against HT

AB seeks a finding that, until the filing of her witness statement in July 2015, HT never alleged that M had told her that she did not want to get married or that she had told AB, who had responded “I’ll make her”, or that, in her view, AB coerced M into marrying MS, despite having had ample opportunity to do so. In response, HT states that these allegations are factually inaccurate and are denied. In the schedule, HT’s representatives draw attention to documents in which, it is asserted, HT did raise these matters at an earlier stage. AB seeks a further finding that, until she removed M from AB’s home, HT had not expressed to AB or anyone that she did not consider that AB had acted in M’s best interests while she resided with him. In response, HT again states that these allegations are factually inaccurate and are denied. AB further seeks a finding that HT did not tell M that returning to live with him was an option open to her. HT agrees that she did not advise her of this, adding that it would have been distressing to M to make such a suggestion. AB also seeks a finding that, after removing M from AB’s home and until the position was regularised by the court, HT prevented contact between M and AB and other family members and discouraged M from seeing her father. In response, HT asserts that she neither discouraged nor prevented such contact, but adds that, since living in London, M has said that she does not want to see her father, that HT had been advised by the police not to have any contact with AB, and that, until October 2014, AB was out of the country and did not seek contact. AB also seeks a finding that, as long ago as 2011, HT had told AB’s mother and siblings that she wanted to care for M in future. This is denied by HT. AB seeks a finding that HT has influenced M to say that she did not want to be married to a man of Indian origin. This is again denied by HT. She agrees that she was not happy about the marriage, but denies that this was because of MS’s background, pointing out that she has numerous close relatives married to persons of different cultures. AB seeks a finding that HT did not visit M in hospital in 2005. HT accepts that she did not visit her immediately because she was unaware of the assault or M’s hospitalisation for some time. Finally, AB asserts that HT has made false allegations against him, in particular that, when she told him that M had said she did not want to be married, he had replied “I’ll make her”. HT denies that any of the allegations made against AB were false.

Cross-allegations by MS against HT

MS alleges that HT was an uninvited guest when she visited AB’s home on 8 November 2013. HT’s case is that she went to Northampton for another purpose and whilst there called in to see M. When she saw the state of the property and M’s health, she decided to stay over the weekend to help tidy up the house.

MS further alleges that HT is motivated by a desire to benefit financially from M and to control her financial affairs. This allegation is denied by HT, who points out that she was M’s appointee until June 2016, when the local authority took over that role. HT asserts that from November 2013 to June 2016 she managed M’s finances in accordance with her best interests and that the local authority has expressed no concern about her actions.

MS further alleges that HT has not cared adequately for M since November 2013 and that, as a result, M’s mental health has deteriorated. HT denies this allegation, asserting that she has cared for M to the best of her abilities and that at no time has any professional expressed any concern about HT’s care of M.

MS alleges that HT has made a number of false allegations to various organisations to the effect that MS abused M – specifically that M was subject to a forced marriage; that MS only married M for immigration purposes; that he physically and sexually abused her; that the marriage was a “sham marriage; and that, when she visited the property in November 2013, she found M in a poor condition. HT says in response that all reports made by her were on the basis of information she had or as provided by M.

MS makes a number of other allegations which in effect repeat those made by AB, for example that she has influenced M against her husband and father, and that HT had a racist view that it was wrong for M as a Somalian woman to marry an Indian man. HT’s responses are in similar terms to her responses to the allegations made by AB on those issues.

Although the fact-finding hearing is shaped by the preparatory steps taken ahead of the hearing, including the various schedules of findings drafted on behalf the parties, the court is not bound to follow that structure slavishly. In this case, where there is considerable repetition and cross-over between the various allegations and schedules, I shall consider the issues of fact under the following headings: (1) financial allegations against M’s father, AB; (2) the circumstances of the marriage ceremony on 15 August 2013; (3) the removal of M from AB’s address and its aftermath (4) the allegations against HT. Before doing so, I shall summarise the relevant law and my assessment of the principal witnesses on whose evidence the factual issues largely turns – AB, MS and HT.

The legal principles to be applied when the Court of Protection is asked to make findings of fact are analogous to those governing fact-finding hearings in care proceedings concerning allegations of child abuse. Those principles are summarised in my earlier judgments in Re JS [2012] EWHC 1370 Fam, Re AA (Fact Finding Hearing) [2012] EWHC 2647 Fam and Re IB and EB (Children) [2014] EWHC 369. The following points are of particular relevance in this case.

The burden of proof lies on the party making the allegations and the standard of proof is the balance of probabilities.

Findings of fact must be based on evidence. As Munby LJ (as he then was) observed in Re A (A child: fact finding hearing: speculation) [2011] EWCA Civ 12:

The court must take into account all the evidence, and furthermore, consider each piece of evidence in the context of all the other evidence. As Dame Elizabeth Butler-Sloss, P, observed in Re U, Re B (Serious Injury' standard of proof) [2004] EWCA Civ 567, the court "invariably surveys a wide canvas". In Re T[2004] EWCA Civ 558, she added:

Whilst appropriate attention must be paid to the opinion of medical experts, those opinions need to be considered in the context of all the other evidence. In A County Council v K, D & L [2005] EWHC 144 Fam, at paragraph 39, Charles J observed:

The evidence of the members of M’s family and others involved in her care is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability. They must have the fullest opportunity to take part in the hearing and the court is likely to place considerable weight on the evidence and the impression it forms of them: see Re W & Anr (Non-accidental injury) [2003] FCR 346.

It is not uncommon for witnesses in these cases to tell lies in the course of the investigation and the hearing. The court must be careful to bear in mind that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear and distress, and the fact that a witness has lied about some matters does not mean that he or she has lied about everything: see R v Lucas [1981] QB 720.

It must also be born in mind that witnesses may be fallible for other reasons. As Peter Jackson J (as he then was) observed in Lancashire County Council v The Children [2014] EWHC 3 Fam at paragraph 9:

The three principal witnesses in the case on the matters arising in the schedules of findings sought by the various parties were AB, HT, and MS. Plainly their credibility as witnesses is an important element of my analysis. Unfortunately, none of them was a wholly reliable witness.

Mr O’Brien submits that his client was a straightforward witness. I disagree. In my judgment, AB was a poor witness whose evidence must be treated with the utmost caution. In reaching that conclusion, I take into account the fact he was answering questions through an interpreter. I also take into account, as Mr O’Brien rightly submits I must, that in assessing his evidence I must not lose sight of the significant cultural factors. But, having taken those matters carefully into account, I formed the firm conclusion that his evidence was unsatisfactory and in many respects unreliable. He failed to answer a number of questions posed by Mr Bhose behalf of the local authority in a simple or straightforward way – for example, in relation to the circumstances of the Islamic marriage in 2013, M’s financial affairs, and his own travelling in the period 2013 to 2014. His explanations for previous inconsistent statements were unconvincing. As Mr Bhose observes in closing submissions, AB displayed a marked greater ability or willingness to answer questions subsequently put by Mr Simblet on behalf of MS. For those reasons, it is submitted that AB was not a truthful witness and that is evidence cannot be relied upon in the absence of corroboration.

In closing submissions, Mr Bagchi on behalf of the Official Solicitor submitted that AB came across as a man rigid in his views with little, if any, insight into his daughter’s condition and needs or what is in her best interests. One example highlighted by Mr Bagchi was his comment in oral evidence that there was no reason why M could not now come home to live with him, or alternatively that, were MS to go to live anywhere else in the world, M could go with him.

Mr Bhose describes MS as “by some distance … the worst witness”. It is submitted that he deliberately sought to deceive the court about: (1) the circumstances in which his marriage to M had been agreed; (2) the role played in his decision to marry by his immigration status; and (3) his lack of employment since 2012. Mr Bhose points out that, in contrast to AB and HT, MS has benefited from a high level of education, who on his own evidence has spent a number of years studying for a Masters degree in law, and was plainly more at ease with the court process than the other two witnesses. He demonstrated an ability to recall details of the case but only, it is submitted, when those details supported his argument. On other occasions, he avoided answering the question. One example, relied on by the local authority, is when he was asked by Mr Bhose to explain how other witnesses could have known for some time before Eid that the wedding was taking place a few days later on 15 August when, on his case, he had not been introduced to M until 8 August. MS did not answer this question, choosing instead to give a long and irrelevant speech to the effect that nothing was certain until it happened. This was not the only occasion when MS conducted his evidence in that fashion. As Mr Bhose submits, he lost no opportunity to make long and grandiose speeches in answer to the simplest of questions.

Mr Bhose further relies on the difficulties in obtaining evidence about MS’s immigration status. On 29 June 2016, I ordered MS to disclose his immigration documents unless he provided written reasons objecting to such disclosure by 13 July. MS failed to comply with this order but instead made an application for permission to withhold his immigration documents on grounds that: (1) the documents contain sensitive personal data coming under the Data Protection Act; (2) because to disclose the documents would tend to expose him to criminal proceedings and as a result he claimed privilege against self-incrimination under section 14(a) of the Civil Evidence Act 1968; (3) because to disclose the documents would further tend to expose M to criminal proceedings, and (4) such disclosure was an infringement of his right under article 8 of ECHR. His application was refused by Peter Jackson J (as he then was). Mr Bhose submits that this was a deliberate ploy by MS to conceal the truth about his immigration status and its relevance to his wish to marry M. Mr Bhose also draws attention to gaps in MS’s evidence about how he has been supporting himself financially during his years in this country.

Mr Bhose describes MS as a calculating and deceitful witness whose sole motivation when giving evidence was to say what was needed to advance his case, which is, the local authority says, to secure the right remain in this country relying on his marriage to M. In the circumstances, as with AB, it is submitted that MS was not a truthful witness and that is evidence cannot be relied upon in the absence of corroboration.

Unsurprisingly, Miss Bretherton on behalf of HT was equally critical of MS’s evidence, describing him as untruthful, inconsistent, evasive, argumentative and self-serving. On behalf of the Official Solicitor, Mr Bagchi expresses equally strong criticism of MS’s evidence. He described it as one-eyed evidence which focused on his own rights and the injustice which he perceives has befallen him as the victim of an elaborate conspiracy between the social care and medical professionals involved with M. The Official Solicitor submits that MS’s refusal to accept M’s current lack of capacity, and his lack of any insight into her needs, excludes him from having any caring role in her future.

On behalf of the local authority, Mr Bhose submits that HT was not a wholly satisfactory witness. He describes her as defensive and sometimes unable or unwilling to answer questions in a straightforward manner. He submits, however, that, in contrast to AB, these features were apparent at all points during HT’s evidence. As a result, it is contended that HT was not an untruthful witness. On the contrary, Mr Bhose submits that, where her evidence conflicts with that of AB and/or MS, it should be preferred.

On behalf of AB, Mr O’Brien submits that HT’s approach in giving evidence was to refuse to answer straightforward questions, showing little or no willingness to assist the court in establishing the truth in relation to many allegations. He further submits that there were significant inconsistencies in her evidence, and relies on the fact that she raised various allegations at different stages which have not been pursued. The most striking example of this on which Mr O’Brien relies is an allegation made by HT in June 2015 that M had made statements to her a few weeks after moving to London indicating that she had been sexually abused by her father. Mr O’Brien draws attention to the fact that HT did not tell any professional about this for 18 months after the allegation was allegedly made, that she never mentioned it to the police, and that the allegation has not been pursued in these proceedings. There is no record of M having made the allegation to anyone else. Mr O’Brien therefore submits that this matter undermines HT’s overall credibility.

On behalf of HT, Miss Bretherton acknowledges in her closing submissions that her client’s evidence was not wholly satisfactory. Through her counsel, HT states that her evidence was entirely honest and correct, but acknowledges that some of her answers may have been confused. The submission made on her behalf is that this confusion was “as a result of the pressure she believed she was under while giving evidence”. Like AB, HT gave evidence through an interpreter. In the initial stages of her oral evidence, it was difficult for her counsel to establish exactly what documents had been translated for her. Miss Bretherton further conceded that her client speaks in what Miss Bretherton described as “sweeping terms”, by which, as I understand it, she meant that her client tended to exaggerate and make statements that are not literally correct. Miss Bretherton submitted that, although this may undermine the reliability of her evidence to some extent, it should not be interpreted as indicative of dishonesty. She also conceded that her client held a sincere belief that M never wish to be married to MS and that it would be open to the court to take the view that HT’s recollection of events has been coloured by her firm beliefs in support of what she believed to be a just cause. In this respect, Miss Bretherton invited the court to apply the principle in R v Lucas quoted above.

On behalf of MS, Mr Simblet informs me that this is the first case in his experience when an advocate in civil proceedings has been driven to make a submission that a High Court judge sitting in the Court of Protection might wish, in Mr Simblet’s phrase, “to treat himself to a Lucas direction” in respect of the advocate’s client. I hasten to reassure Mr Simblet that the court has experience of many such cases in the family jurisdiction. Indeed, it is a submission which is made in nearly every substantial child abuse case. But I agree with the underlying point which Mr Simblet is seeking to make, that the fact that such a submission is made is indicative of a recognition on the part of the party concerned and/or her legal representatives that her evidence is not wholly reliable. As Mr Simblet also points out, the difficulty in this case is that there is little, if any, independent corroboration for any of the principal allegations made by HT.

Mr Simblet goes much further in criticising HT’s evidence than the concessions made on her behalf. He describes her as a terrible witness whose manner was not consistent with an interpretation that the difficulties in her evidence were due to innocent mistakes. He describes her as generally unhelpful and evasive, and asserts that she refused to give straight answers to many of the questions she was asked. Amongst the assertions made in her evidence, Mr Simblet identifies her claim that Mr Abdirahman was not in fact the Imam who conducted the ceremony as particularly implausible.

Having carefully considered HT’s evidence, I conclude that Miss Bretherton’s concession in closing submissions is well made. I find that HT is someone with strong views and fixed ideas who has occasion allowed her beliefs to colour both her actions and her evidence. I did not find her to be deliberately dishonest, but I do agree that at times she was an unsatisfactory witness whose evidence was in a number of respects unreliable and must therefore be treated with caution.

On behalf of the Official Solicitor, Mr Bagchi submitted in his closing presentation that both AB and HT were in their own way unsatisfactory witnesses who gave inconsistent, rigid and self-justifying accounts of their respective roles in events. As a result, he urged the court to be slow to accept the evidence unless independently supported by other evidence. Mr Bagchi is even more critical of the evidence given by MS whose evidence he describes as “extraordinarily one-eyed” and unsatisfactory. I agree with Mr Bagchi’s overall submissions as to the three witnesses.

As stated above, a number of other witnesses gave oral evidence and, in so far as necessary, I shall consider matters about their credibility below. At this point, I should just mention that an unusual issue arose concerning one witness in respect of whom a statement was served by the local authority but who subsequently indicated that it was not an accurate account of her evidence. This issue took up a considerable amount of time during the preparation for the hearing but ultimately is not a matter which has any bearing on my decisions in this case. No party now seeks to rely on the statement concerned and the account given by a senior social worker as to the circumstances in which the statement came to be made (as summarised in a witness statement from the local authority solicitor) has been accepted by the other parties. On behalf of MS, Mr Simblet made some criticism about the way in which the statement had been prepared by the local authority, asserting that it had pitched the evidence provided by the witness in much higher terms than she would herself have chosen to do. As a result, he submits that the court should be somewhat sceptical of the local authority’s approach, founded as it has been on unreliable evidence from HT and from Dr O’Halloran and in a context where other evidence adverse to its case has been, in Mr Simblet’s phrase, “gingered up”. Looking at the local authority’s evidence as a whole, however, I do not see any grounds for believing there has been a systemic failure to present the case fairly.

The local authority asserts that AB has appropriated money belonging to M, and acted in flagrant breach of his obligations as her property and affairs deputy. The evidence upon which the local authority relies can be summarised as follows. At 15 November 2013, M’s Santander account, comprising her benefits, had a credit balance of £5469.21. Two further credits, comprising further benefit payments, were made to the account of the sum of £636.30. By 21 October 2014, all the funds in the account had been withdrawn. In the period between those two dates, there were twenty-eight cash withdrawals in various locations in Sweden and Switzerland, made, it is asserted, by AB. It is the local authority’s case that none of this money was spent on M who was at all material times during this period living in London with HT. In addition, at 27 October 2013, M’s HSBC account, comprising her CICB compensation following her criminal assault, had a credit balance of £6071.33. By 27 June 2015, the balance had been reduced to £18.69. In the intervening period, there had been a large number of cash withdrawals made by AB at various locations. Again, it is the local authority’s case that none of this money was spent on M in London with HT. The local authority further asserts that, at earlier stages, from 2011 onwards, AB drew on the money in M’s accounts to pay for his own expenses, including travelling expenses to and from Switzerland, which did not benefit M at all. A sum of £2000 was withdrawn from the Santander account in September 2013. It is the local authority’s case that no satisfactory expression for this withdrawal has been given at all.

It is the local authority’s case that AB has spent money belonging to M during periods when he was supposedly acting as her property and affairs deputy. It is submitted that he manifestly failed to comply with his duties in that office. The local authority submits that he has acted dishonestly – in effect, that he has stolen the money belonging to M. Mr Bhose cites dictum of Lord Hoffmann in the Privy Counsel in Barlow Clowes International Ltd v Eurotrust International Ltd [2005] UKPC 37:

“Although a dishonest state of mind is a subjective mental state, the standard by which the law determines whether it is dishonest is objective. If by ordinary standards a defendant’s mental state would be characterised as dishonest, it is irrelevant that the defendant judges by different standards.”

Mr Bhose submits that, by the ordinary standards, AB’s behaviour and mental state as to the use of his daughter’s money would be characterised as dishonest. In supplemental submissions he adds that, in colloquial terms, AB simply cleaned his daughter out, using her money as his own, knowing it was not his to use, but frankly not caring. In the alternative, he submits that on any view the expenditure of M’s money in the way described by AB was not in her best interests and was in breach of his duty as her deputy. As a result, the local authority asked the court to discharge him from that role.

In his closing submissions, however, Mr Bhose informed the court that the local authority does not seek the repayment of the money taken by AB, for two reasons. First, the local authority accepts that it is unlikely that AB would be able to repay the money and therefore such an order would have no benefit for M. Secondly, the local authority recognises that it will need to work with AB in future and does not believe it would be in M’s interests for a financial order to be made which might set him against his daughter.

In his response to the findings sought, and his evidence, AB has provided various explanations for his use of M’s money. He asserted that M would have supported the use of her money to fund his flights to Sweden to see his mother on the grounds that she had a close bond with her grandmother. He further asserted that the travel was in a number of respects necessary because of medical emergencies involving his wife and mother. He has also stated that he has always intended to repay the money, although to date he has not done so.

AB also asserted that he was justified in spending M’s money in this way because he had previously supported M entirely from his own resources at an earlier stage before she was in receipt of any benefits. In his oral evidence, he stated that, when M first came to the UK, she did not have any money and he was responsible for her needs. She had not received a penny for two years and thereafter there were difficulties when she started receiving benefits. For a period of several years, therefore, he was taking care of her and was financially supporting her while trying to appeal against the decisions about her benefits. His oral evidence was that subsequently, the government paid backdated benefits which he left in the account to use in the event that anything happened to his daughter or himself. Asked about his assurance that he would repay the money he had taken, he said that he would pay it back when the local authority paid him back for the money he had spent on M in the past. He said that M was aware that, if anyone needed help in the family, the money could be used for that purpose. When Mr Bhose suggested to him in cross-examination that he had taken the money dishonestly, AB responded that he was not a dishonest person but a father who has cared for his daughter since birth. If the local authority was accusing him of dishonesty, he wanted them to give back the money they owed him. He asserted that the local authority should give him the same treatment as they had given to HT. They had paid money to her and should therefore pay money back to him.

On AB’s behalf, Mr O’Brien submits in his closing presentation that the court should consider the use of M’s money by AB within the cultural and religious context of this family. AB had provided for his daughter for many years, at a time when she was not receiving benefits and he was exclusively responsible for her care. He further invites the court to accept AB’s contention that, if M had had capacity, she would have approved of his use of the money to support other members of the family. Mr O’Brien submits that, in taking the decision to use M’s money to support other family members, AB was acting consistently with s.4(6)(b) of the MCA 2005 which provides that a person making a best interests decision for an incapacitated adult must “consider, so far as reasonably ascertainable …. the beliefs and values that would be likely to influence his decision if he had capacity.”The strong cultural value would be that M should assist her father to provide for his mother and wife, reinforced by the care and assistance that he had provided for his daughter. For these reasons, Mr O’Brien submits that AB did not act dishonestly in using M’s money in this way and that his credibility and his honesty should not be diminished by the appropriation of the money.

Mr Bhose’s response is that none of the various explanations provided by AB is in the slightest degree credible. In respect of the assertion that M would have supported the expenditure, given her close bond with her grandmother, he points out that in fact AB was only in Sweden (where the grandmother lives) for four months from February 2014. Furthermore, the amount he spent there amounted to under £4000 – less than one third of the total sum taken from M’s accounts during this period. In respect of the assertion that AB believed that taking the money was justified because the situation amounted to an emergency, Mr Bhose points out that the period in question spanned almost a year and covered three countries. He submits that the circumstances manifestly could not be characterised as an emergency. AB’s suggestion that he only resorted to using M’s funds when those in his own account were exhausted, saying that he only acted in this way “as a matter of last resort”, is contradicted by the evidence of his bank statements which demonstrate an ongoing balance of several hundred pounds between October 2013 and June 2014. Mr Bhose further suggests that AB’s promise to repay the money is hollow, bearing in mind his failure to date to pay back a penny of it. The fact that he has not seen M for three years is no reason for his failure to repay the money. Mr Bhose submits that there is no merit in AB’s excuse that he was, in effect, setting off the money he was taking against the expenditure he had himself incurred some seven years previously when M first came to live with him. He was M’s property and affairs deputy and in that office he was not permitted to use her money in that way.

I shall consider the evidence about the marriage that took place on 15 August 2013 under three headings; (a) MS’s immigration status, which forms an important aspect of the background; (b) the introduction, proposal and arrangements for the marriage, and (c) the events of 15 August 2013.

The history of MS’s immigration applications can be summarised as follows. He first entered this country in 2010 under a visa endorsed as “Tier 4 (General) Student” having been offered a place at Northampton University. The visa permitted him to work for a maximum of twenty hours per week during term time. The documents eventually produced by MS, after a series of court orders, included the visa which was described as starting on 13 September 2010 and ending on 27 May 2012. On the day after the visa expired, 28 May 2012, MS applied for further leave to remain in this country in order to complete his studies. In the application, he stated that he was working and that his net income was £552.50. In a covering letter, he told the UK Border Agency that the university had terminated studies, but subsequently agreed that he could restart the course on payment of an additional fee. He further complained that the university had failed to provide him with a Confirmation of Acceptance of Studies letter to verify his status as a student. He asserted that the university had victimised him and that its action amounted to discrimination. On 18 July 2013, his application for further leave to remain was refused. The letter of refusal informed him that the Secretary of State had decided that he should be removed from the country and that the deadline for an appeal was 5 August 2013. It was, of course, in July/August 2013 that the possibility of a marriage between MS and M was first raised.

MS’s letter appealing against the refusal of his application for further leave to remain was received by the First Tier Tribunal on 8 August 2013, although the letter was dated 5 August. On 29 November 2013, his appeal was rejected on the grounds that it was out of time. It seems that no immediate steps were taken to deport MS. He made no further application for a period of some eighteen months. On 1 July 2015, he applied for a residence card as “the extended family member of a European Economic Area (EEA) or Swiss national”. The application names both M and AB as sponsors. In answer to questions about M, he stated that he had first met her in June 2013 at “Eid festival at racecourse Northampton” and that the relationship had begun on 15 August 2013 when “we religiously got married”. He ticked the box indicating (wrongly) that he and his sponsor had children together. On 21 December 2015, his application for a residence card was refused on the grounds that the UK authorities do not recognise Islamic marriage ceremonies and that, as a result, the Home Office was unable to accept his relationship with M, or with AB as his “father-in-law”. On 29 December 2015, MS appealed against the refusal of the residence card. In his notice of appeal, he asserted that the decision was “contrary to law, and against the evidence and human rights of the appellant”. He further stated that “the Court of Protection has acknowledged Islamic marriage of the appellant and the matter has been referred to the High Court for the observation”. In the event, MS withdrew the appeal on 19 September 2016, but then made a fresh application for a residence card seven days later, naming AB as his father-in-law and sponsor. That application was again refused and MS has appealed that decision.

It is submitted on behalf the local authority, and supported by those representing HT, that MS has now been in this country for over four years without a visa and his only prospect of being permitted to remain here is if he persuades the immigration authorities that he is genuinely married to M. On behalf of HT, Miss Bretherton submits that it is manifestly clear that MS has repeatedly used his Islamic marriage to M to support his immigration application. It is therefore submitted that MS’s wish to secure a right of residence in this country was the motivation for his marriage to M in August 2013. After the expiry of his visa in May 2012, and the refusal of his application for further leave to remain as a student on 18 July 2013, his only chance of remaining in this country was to find an EEA national to marry. Four weeks later, he married M in the religious marriage at the Northampton Mosque. A few days later, he went to the registration office to give notice of the marriage, although the marriage was, of course, not recognisable as a matter of English law.

In his statement, MS denied that he had married M in order to obtain a permanent immigration status in this country. He denies having used his marriage to M to remain in this country. On his behalf, Mr Simblet submits that, whatever might be thought to have been the potential motivation, or part of the actual motivation, the indisputable facts are that MS wanted to be involved in M’s life and family in a positive way and showed that he was. Mr Simblet contends that, even if his primary motivation for going through the religious ceremony of marriage with M was a mistaken belief that this would improve his immigration status, that is not the point because his deeds have shown that he wishes to care for M and support her. If the immigration uncertainties account for the marriage being arranged at short notice, then so what? In any event, Mr Simblet submits that there is no conclusive evidence that MS does indeed have any immigration difficulties, save that his application has been refused by the Home Office.

Somewhat unusually, some weeks after the conclusion of the evidence, Mr Simblet attached to his closing written submissions some further documents produced by his client concerning his academic status at the university which he invited the court to consider (“de bene esse”) when considering the issue of MS’s immigration status. Unsurprisingly, other parties objected to this unconventional step, and it would in my judgment have been wrong to admit them at such a late stage, but in any event, the documents did not seem to me to be of any relevance to the issues I have to determine.

It was HT’s evidence that AB told her about MS’s immigration position prior to the wedding, and she in turn mentioned it to the police on 12 November 2013. AB’s evidence, however, was that there was no discussion with MS about his immigration status prior to the ceremony. On his behalf, Mr O’Brien submits that there is no credible or cogent evidence that AB’s agenda for marriage was guided or influenced by MS’s immigration application. Mr O’Brien points out that the religious marriage, by itself, could not have assisted in easing MS’s immigration problems. He submits that the fact that, after the religious marriage, AB supported MS’s immigration application does not support the allegation that the marriage was a sham designed to improve the prospects of MS’s immigration application.

In his first statement in these proceedings dated 1 July 2015, AB described the meeting between MS and M as follows:

“In 2013 M and I went to racecourse to attend the Eid celebrations where I introduced M to MS …. M and MS spent some time together at the celebrations and M informed me afterwards of her feelings for MS. M had been in a relationship before her attack and I was pleased that she had felt safe with another person. I spoke to MS on M’s behalf and he expressed an equal fondness for M and they met further three times before it was agreed they would marry.”

AB has reiterated his evidence that the meeting between M and MS took place at the Eid celebrations in 2013. In his third statement, he gave more detail about the meeting, stating:

“They sat down and spoke to each other for a while, and it seemed clear immediately that they enjoyed each other’s company. I could see her laughing and smiling, and she seemed happy and at ease. They met on three further occasions after that, twice in our home and once at the mosque. It was important to me that my daughter was happy, and I asked on three separate occasions whether she likes MS and enjoyed seeing him. Every time, she answered by telling me that she did, and I could see that she was happy.”

In his second statement in the proceedings, MS described the meeting as follows:

“I used to see M and I knew her for about 5 to 6 months by the time of our marriage. We had first met when she came with her father to [the] Islamic Centre to study the Qur’an and Arabic classes. I was present there for charity work. I found M to be a religiously committed Muslim …. On some occasions before and during the Ramadhan I discussed M with AB and on Eid celebrations I went to [the] Racecourse where we hold the celebrations, [and] was formally introduced to M by her father. We spent a good time together at the celebrations and when AB spoke to me I expressed my fondness for M and we met further three times on different occasions before we decided to get married.”

In his third statement, MS said:

“Prior to our formal introduction I had already met with M due to our both attending the Islamic centre… and we got along well. I therefore was familiar with M prior to our formal introduction at the Eid celebration …. We had in fact met on five or six occasions at the Islamic centre during which we had engaged in conversation. It was as a result of our conversations and our getting along that I expressed my interest to AB in marrying M. It was on 17 July 2013 that AB formally introduced me to M with a view to considering marriage.”

In their oral evidence, however, both AB and MS gave a different account. AB said that it had been M who first suggested the possibility of marrying MS; that he, AB, had then approached MS to discuss the possibility; and that there then followed a series of further conversations about the matter between the two men during Ramadan 2013 before the meeting at the racecourse during the Eid celebrations. In his oral evidence, MS gave a similar account – that AB had proposed the marriage to MS; that MS then spoke to his family about it; that the formal introduction took place at the Eid celebrations; and that there then followed three conversations about the wedding before 15 August.

Some further evidence on this matter was provided by witnesses called on behalf of MS. One, Dr Shaikh, who had provided a written statement about the wedding ceremony, referred in his oral evidence (although not in his statement) to a light-hearted conversation involving himself, AB, MS and others which took place about a week before Ramadan during which he had asked AB whether he knew of anyone who any of the men present could marry, to which AB had replied “yes, my daughter”. A further witness, Abdul Nakeeb, who was apparently one of the organisers of the Eid celebrations, described in his statement that “this was not a hidden marriage, it was a well talked marriage weeks before the ceremony itself.” In oral evidence, he described how he had known for weeks before the wedding that it was going to take place because both MS and AB told him so on a number of occasions during Ramadan. A third witness, Muhammed Miah, who provided a statement in which he provided a very positive assessment of MS’s qualities, described a telephone call he received from MS informing him “the joyous news of his marriage being confirmed”. In oral evidence, Mr Miah confirmed that this phone call occurred at approximately midday on 8 August.

On behalf of the local authority, Mr Bhose stresses the fact that, prior to the hearing, both AB and MS have been consistent in saying that there were three further meetings between MS and M after the Eid festival before they decided to marry. He submits, however, this cannot be true if it is correct that the formal introduction took place at the Eid celebration because, in 2013, Eid occurred on 8 August. Mr Bhose submits that AB and MS, when preparing their statements, overlooked the fact that Eid occurred on that date in that year, and draws attention to the fact that, in his application for a residence card, MS had stated that the Eid celebrations took place in June 2013. Mr Bhose submits that, whilst a relatively short period of time between formal introduction and marriage is unexceptional within the Muslim community, the period of seven days in this case, which is said to encompass the introduction, three further meetings and the wedding, is exceptional, particularly given M’s disabilities. He therefore submits that the reason why AB and MS have been at pains to suggest a longer time between the first meeting and the wedding is to give the impression, which the local authority says is false, that M had a proper opportunity to get to know MS and gave her agreement to the marriage. It is submitted on behalf of the local authority and HT that, as a result of the discovery that Eid took place on 8 August in 2013, both men then changed their story in the witness box in an effort to reinforce their case that M had a proper opportunity to get to know her future husband.

Mr Bhose submits that there are further inconsistencies between the various accounts given by AB and MS and those given by the witnesses called on behalf of MS. Neither AB nor MS referred in their written evidence to the “light-hearted conversation” a week before Ramadan described by Dr Shaikh, nor to the conversations with Mr Nakeeb. Mr Miah’s account of receiving a telephone call from MS on 8 August informing him of the pending marriage is inconsistent with the assertion in the written statements of both AB and MS that no decision to marry was taken until after three further meetings following the introduction at the Eid celebrations on that date.

Ultimately, the local authority’s case is that the decision that M would marry MS was taken at some point before Eid 2013 by AB and MS alone without reference to M. MS’s motive was, as stated above, to buttress his immigration status. So far as AB was concerned, he considered that it was both his duty and his right to marry M to MS, and the fact of the marriage would enable him to spend more time abroad with his wife. Little, if any, consideration was given to M’s wishes and feelings. It is the local authority’s case that the meeting of M and MS at the Eid festival – if it took place at all – was of no relevance to the decision-making process.

The local authority’s interpretation is substantially supported by the Official Solicitor. Mr Bagchi submitted that, by the end of the hearing, a clear picture emerged indicating that AB wanted to arrange a marriage for M because he considered it to be culturally and religiously imperative. Her wishes as to the choice of a marital partner did not feature prominently in his thinking. M herself was not in any position to make much of an informed choice because she was only introduced to MS a few days before the wedding. Although AB may have been satisfied that MS was an appropriate husband for his daughter in terms of culture and religion, Mr Bagchi submits that he gave little thought as to how his vulnerable daughter would be supported by her new husband.

On behalf of AB, Mr O’Brien submits that it was culturally appropriate for the arrangements for M’s wedding to be made by her father. The mere fact that AB made arrangements is not enough to support a finding that AB acted contrary to M’s best interests. How MS’s evidence is evaluated is a matter for the court, but Mr O’Brien submits that his evidence that he had not mentioned to AB his immigration problems prior to the marriage is clearly consistent with the majority of witnesses who attend the Northampton Mosque, who confirmed that they were not aware before the marriage that MS had been refused leave to remain.

Through her legal representatives, HT has sought further findings concerning the preparation and arrangements for the wedding, specifically that; (a) AB and MS failed to take any or any reasonable or proper steps to ascertain whether M had the capacity to marry; (b) concealed her mental health and her marriage from those who may have been concerned to ascertain her capacity, and (c) failed to take any or any proper steps to assist M to make a capacitous decision whether to marry. A number of potential steps that could have been taken to regard are particularised in the schedule. It is pointed out that AB must have realised that there was reason to doubt M’s capacity to marry because he was himself her property and affairs deputy, appointed because she lacked capacity to manage her financial affairs. There is ample evidence that AB was aware that his daughter was vulnerable and in need of assistance. It is submitted that these omissions are relevant, first because they demonstrate that AB and MS cannot be trusted to recognise whether a capacity assessment is required were M to reside with either of them in future, or in the event that they were to be involved in decisions about her welfare and care, and, secondly, because they are consistent with the principal case advanced by the local authority and HT that M was coerced into the marriage.

In response, Mr Simblet submits that these findings sought by HT are unsupported by the evidence and legally flawed. For the law to impose a duty on a parent to enquire as to whether the child had capacity to marry would be a violation of the principles of personal autonomy afforded to persons with capacity and therefore their rights under articles 8 and 12 of ECHR.

On behalf of the Official Solicitor, Mr Bagchi makes a slightly different submission from that advanced on behalf of HT, namely that the failure of AB and MS to seek advice as to M’s capacity to marry in the light of her mental disorder demonstrates clearly that their motivation was the urgent imperative for the marriage to go ahead. The Official Solicitor does not support the contention advanced on behalf of HT that it was unreasonable for AB and MS not to have arranged a capacity assessment of M before the marriage.

The wedding took place at the mosque in Northampton and was solemnised by the Imam, Mr Jalfar Suleiman Abdirahman. Many guests attended the wedding, including HT. In her statement, HT alleged that M told her on the day of the ceremony that she did not want to marry this man, and that, when HT repeated this to AB, he replied “I’ll make her”. HT stated that, at the ceremony, M was very subdued and quiet. When the Imam asked her whether she was happy with the marriage, M had replied “it’s my father’s wish”.

In his statement, AB gave a somewhat different description of his daughter’s demeanour on the day. He described how HT was with M during the whole marriage ceremony, and they laughed, sang songs, and played jokes with other relatives and members of the community without any word of complaint.

The Imam provided a statement for the proceedings and also gave oral evidence. In his statement, he said that, to the best of his knowledge, the marriage was performed in accordance with all requirements of Islamic law. He said that he made sure to the best of his ability that there was no coercion, undue influence, fraud, misrepresentation or mistake. It is his practice personally to approach the bride along with witnesses and take her free consent for solemnising the marriage. In oral evidence, the Imam stated that he officiates at about 7 to 10 weddings every year and recalled this wedding clearly because it was one of the first weddings that had taken place at the mosque. He recalled asking M if she gave her consent and that she replied yes. It was put to him, as alleged by HT, that, when he asked the question, M had replied “it’s my father’s wish”. The Imam could not recall this being said and said that, if she had said it, he would have been concerned. He added that he had known for roughly a week that the wedding was going to take place.

Further evidence about the ceremony was provided by several other persons who were present. They included the two witnesses who had accompanied the Imam to meet the bride during the ceremony. Their evidence was that, when the Imam asked if she consented to the marriage, she replied yes. This was also corroborated by another witness, a Mrs Mahmed, who was present in the room. Mrs. Mahmed added that she spoke to HT who, she said, was very happy about the marriage and enjoying the ceremony. In cross-examination, Mrs. Mahmed said that she had studied the Qur’an with M and knew her very well.

On behalf of the Official Solicitor, Mr Bagchi submits that these witnesses were well-intentioned, impressive and manifestly trying to do their best to assist the court and gave a coherent picture of events on that day. As Mr Bagchi observed in closing submissions, none of the witnesses to the wedding considered it their place to investigate M’s willingness to marry MS, a factor attributable, Mr Bagchi suggests, to the cultural primacy given to the role of the bride’s father, and their lack of information about M’s psychiatric history.

In her closing submissions on behalf of HT, Miss Bretherton informed the court that her client appreciated that a number of witnesses had given evidence to the effect that M had said “yes” but insisted that a clear recollection was that her response had been limited to “if it is my father’s wish”. HT’s case is that the witnesses have given evidence with a view to supporting MS.

On behalf of AB, Mr O’Brien submits that HT’s allegations about the events of 15 August 2013 are implausible. He argues that, if HT is correct, M entered into a religious marriage which she did not want and under coercion; that, on HT’s own evidence, she was uniquely placed to prevent the marriage, having spoken to M and apparently knew of M’s concerns; that she has given no cogent explanation for not taking steps to stop the marriage, by contacting social services or the police, or mentioning any of these concerns to the Imam. Mr O’Brien submits that the reason HT did nothing was because there was nothing to do. In response, Miss Bretherton submits that few individuals, in particular women, would be prepared to risk being ostracised by their family and community by objecting to a marriage in the ways suggested by Mr O’Brien.

Expert evidence as to the Islamic law of marriage was provided by Professor Rehman, formerly Head of the School of Law at Brunel University. In his two reports, Professor Rehman addressed a number of issues including the requirements of a valid marriage under Islamic law and the treatment of the issue of mental capacity under Islamic law, and he went on to comment on the likely reaction of the Somali Islamic community to a finding that the marriage was invalid or that M lacked the capacity to consent to the Islamic marriage, or, if the marriage is found invalid, of M not residing or having contact with MS. In the event, there is little challenge to his expert opinion as to the law, and, whilst I note the comments about community reaction in his report, I do not think that those comments are ultimately of great relevance to the issues I have to decide.

Prof Rehman advised that a Muslim marriage (nikkah) is essentially a contract of civil law between a man and a woman, between two consenting persons of sound mind who have attained puberty. The nikkah is effected simply by an offer and acceptance. There are no other requirements for the marriage to be valid. In oral evidence, cross-examined by Mr Simblet on behalf of MS, he agreed that a nikkah can be celebrated in a private home, and that someone who chooses a marriage in a mosque is extending an invitation to other members of the community to join and take part in the festivities.

Prof Rehman also advised that, under Islamic law, the guardian (wali)of a child, or mentally disabled adult, can provide a valid consent for marriage.

In his report, Prof Rehman considered a substantial proportion of the evidence, including some of the expert opinion as to M’s mental state and the evidence of the witnesses who attended the wedding, and concluded that M did have capacity to consent to an Islamic marriage in August 2013 and, furthermore, that the marriage was valid. In my judgment, in making those observations, Prof Rehman was arguably exceeding the ambit of his instructions and expressing views on matters that, if disputed, would be for the court to determine. In the event, however, there is no such dispute.

Mr Simblet on behalf of MS points to a considerable amount of circumstantial evidence that the nikkah that took place on 15 August 2013 was genuine. It was held openly, in the mosque in Northampton, with both invited family guests (including HT) and members of the community in attendance. The Imam considers that to be a genuine nikkah and none of the witnesses had any concerns. Relatively short notice was given of the ceremony, which is not unusual in this community. MS showed an interest and concern in M prior to the ceremony – for example, travelling with her and her father to medical appointments in Oxford. After the ceremony, he remained living with her at her father’s home, and still lives there to this day. Mr Simblet suggest that this conduct is inconsistent with the marriage having been merely, to use his words, an immigration scam. There are, he submits, many different reasons for getting married, both within the Muslim community, in other religions or in secular society. It would be wrong to judge MS’s motivation as being improper merely because certain consequences might result from the nikkah. It is his case that he loves M and wants to help look after her, which, Mr Simblet submits, is the essence of any marriage.

In the light of the evidence, the local authority through Mr Bhose, and the Official Solicitor through Mr. Bagchi, ultimately accept that the formal requirements of an Islamic marriage were met at the ceremony on 15 August 2013 and that it is likely that M did reply “yes” when asked when she consented to marrying MS.

The central issue between the parties is whether M was coerced into marrying MS. Both Mr Simblet on behalf of MS and Mr O’Brien on behalf of AB submit that there is no evidence at all that coercion took place. Even if it is correct, as HT maintains, that she told AB that M did not want to get married and that he replied “I’ll make her”, there is no evidence that he forced her to go through with the marriage. There is no evidence of threats of force having been used against M to ensure that, when asked whether she wished to marry MS, she replied yes. Mr Simblet submits that, even if it is correct that M said “it is my father’s wish”, that would not be suggestive of pressure in a culture with the tradition of arranged marriages. All the subsequent statements allegedly made by M relied on as evidence of coercion were made many months after she was removed from AB’s home and have been living with HT.

In Hirani v Hirani [1983] FLR 232, Ormrod LJ held that, when seeking to identify whether coercion has occurred, “the crucial question … is whether the threats, pressure, or whatever it is, is such as to destroy the reality of consent and over bears the will of the individual”. Mr O’Brien submits that this test is not satisfied in this case.

Mr. Bagchi concedes that there is insufficient evidence for this court to conclude that M’s consent was vitiated by coercion or undue influence. He further acknowledges that, even if M did not validly give her consent, the proxy consent of AB, as wali, was sufficient to validate the marriage under Islamic law.

The question remains, however, as to how this court, applying English law, should treat this valid Islamic marriage. I shall return to that issue later in this judgment.

HT’s evidence about the circumstances in which M was removed from AB’s house is set out in her statement dated 6 July 2015. She describes travelling to Northampton to stay with M for a day as she was looking for work in order to complete her nursing diploma. She had gone to Northampton for three days to work with a care agency and planned to stay with M at AB’s house. When she arrived, she found M in the house alone. She described the house as being in a squalid state, with mould in the fridge and on the walls in the bedroom and the leftover food all around the kitchen. All the windows and doors were locked. She describes M as being in a distressed state as she was panting, rocking back and forth in her chair and walking round the room. M said that, since her father had left, she had only been outside with her husband shopping on a few occasions. The only food she was eating was fish fingers and roast potatoes. HT described M as having put on a lot of weight, and that her self-care was very poor and she was wearing old clothes. She had been locked in the house from 9 am to 9 pm while her husband was working. When they ate a meal, M choked on her food and vomited. She had a bad cough and would bring up a lot of sputum. HT was very concerned about her general overall health as well as the squalid state of the house. For that reason, she decided to stay for a few days to tidy and clean the house. When MS arrived home in the evening, he was surprised to see her and did not welcome her at all. During the meal, he shouted at M to get up and sit opposite him, whereupon she shouted at him saying she wanted to sit next to HT.

Having stayed for the weekend, HT was planning to leave on the following Monday but M told her she did not want to stay at the house and begged her to take her back to London. Having delivered her documents to the agency, HT returned to the property in the afternoon. MS was in the house and became angry and shouted when he found out that M wanted to go to London. According to her witness statement, MS telephone AB who spoke HT and agreed that M could go to London. Later, AB telephoned her again and told to take M back to her husband. HT concluded, however, that M was frightened to go back to the house. After arriving in London, HT received abusive and threatening text messages from AB. On the following morning, she went with M to the local police station and gave a full statement.

MS agrees that M was alone in the property when HT arrived on 8 November 2013 because he was attending Friday prayers. When he left, and when he returned, she was happy and healthy and not in a distressed state. He further denies that M was dirty; he asserts that she was clean and looked after herself properly and that her clothes were clean and appropriate. Furthermore, he denies that the home was in a dirty and poor condition. MS said that he had not been present when HT arrived at the house and he did not overhear any discussions in which M told HT that she did not want to stay. He added, however that he did not believe this was true because, during their cohabitation, they resided happily together without any problems.

The local authority and HT allege that neither AB nor MS took any or any significant steps to bring about the return of M to AB’s home in Northampton. AB remained abroad for ten months and it was not until his return to this country in September 2014 that he took any action, reporting the alleged “abduction” of his daughter to the police. MS accepted that he did not take steps to be reunited with M after her removal. His evidence was that, on the day that HT removed M, he made contact with AB to let him know what was occurring, whereupon AB informed him that he would handle the matter. It was MS’s evidence that, as AB was his father-in law-and someone for whom he had great respect, he left the matter to him because he would have better standing with HT to persuade her to return M home. He felt this was a matter that could and should be managed within the family.

In his oral evidence, MS stated that, on a number of occasions during the period after HT had taken M to London, AB had told him that M might be returning imminently. AB did not give evidence to that effect himself. AB’s case is that, following M’s marriage to MS and in the light of the fact that she had been stable for some time, he decided that his priority was caring for his ailing wife and mother, who were in Switzerland and Sweden respectively. While he was away, he spoke to M every day after learning that HT had taken M to London. On 11 November 2013, he tried to contact her by telephone and text but she refused to speak to him. In his response to the allegations set out in the schedule, AB asserts that, knowing that HT had taken M’s passport, he was concerned that, were he to return home, HT might have taken M abroad.

On behalf of the local authority, it is submitted that it is a matter for the court to determine whether evidence of HT is to be preferred to that of MS as to the events of November 2013. It is submitted, however, that any suggestion that HT went to AB’s home in November 2013 with the express intention of removing M is unsustainable. It is submitted that the court should accept her evidence that she only made the decision to take M back to London when she saw the circumstances in which she was living in AB’s home.

The local authority invites the court to reject MS’s evidence that, after HT took M back to London, he decided to leave it to her father to sort the problem out. It was MS’s role, culturally, to protect his wife. Even if it is correct that he decided in the first instance to leave the matter to AB, Mr Bhose submits that this explanation is not credible to account for MS’s failure to do anything about the matter thereafter. He further submits that the additional explanation given by MS in his oral evidence - that AB told him at various points that M was about to return from London – is implausible and uncorroborated by any other evidence, including anything said by AB. Mr Bhose submits that the reality is that MS kept his head down, for immigration reasons. He also submits that the fact that MS has failed to take any active steps to restore relations with his wife is an indication that the marriage of 15 August 2013 was not genuine.

As summarised above, both AB and MS seek findings against HT. In summary, they allege (either together or separately) that:

The financial motive features prominently in the allegations against HT. In her statement, HT described how in January 2014 she was appointed as M’s appointee. Until that point, M’s money had been going into her bank account to which only AB had access. Thereafter, M’s benefits, amounting to about £950 per month, were paid into HT’s Barclays Bank account. HT said in a further statement that she had been told by the Department for Work and Pensions that it was not possible to pay M’s benefits directly into an account in her name. At a later date, a separate account was opened for M at Barclays Bank, and thereafter the benefits were paid into HT’s account and immediately transferred over to M’s account. She added, however, that is, since she had been managing M’s benefits, she had transferred approximately £300 per month back from M’s account into HT’s account as her contribution towards the household expenditure, shopping and utility bills. The amount varied from month to month but averaged out at £300 per month. It is HT’s evidence that she has ensured that M had £100 per week from her money so that she could buy things for herself. HT added that she had also used M’s funds to pay for certain one-off items for her use. Over time, M accumulated savings amounting to over £2400 which HT subsequently placed in a new separate Barclays account in M’s name.

HT asserts that she has managed the money at all times in accordance with M’s best interests. She says that she has never spent M’s money on anything from which M did not benefit. She denied ever misusing M’s money. She rejected the allegation that she had encouraged M to move to London so she could take advantage of her welfare benefits. It is HT’s case that, if M had not moved to London to live with her, HT would have returned to her studies to complete her nursing diploma.

HT was closely questioned about her management of M’s money by Mr Simblet in cross-examination. In closing submissions, Mr Simblet contended that, on any view, HT had been quite quick off the mark in getting control of M’s money after she moved to London, being made her appointee in early January 2014. Thereafter, M’s income went directly to HT, with no efforts at that stage to separate the bank account or provide proper documentary evidence of how the money was being spent. It was only after social workers raised concerns that a separate bank account was set up, but even then difficulties continue to arise. Mr Simblet points to a number of disparities and inconsistencies in the accounts and submits that it is exceedingly rare to see any objective records of expenditure. He submits that it is significant that the account is being heavily used with cash withdrawals which are difficult to track. He notes that HT continues to take £300 a month from M’s money in respect of living expenses, even though M is in hospital. He submits that this goes beyond merely failing to keep M’s money separate. Rather, she has used much of it for own purposes so that it is no longer available to M.

All these matters are known to the local authority which has not raised any concerns. Mr Simblet comments that the fact that the local authority has allowed this to continue does not reflect very well on it. In response, it was submitted on behalf of HT that the local authority had carried out a review of M’s financial position in August 2016 and concluded that, in fact, HT had been owed money for payments she had made for M herself.

On behalf of HT, Miss Bretherton submits that there is no evidence that HT’s conduct has been based on anything other than her dedication to her niece. She accepts that difficulties have arisen over some aspects of M’s finances. HT’s mathematical skills are limited. But the local authority has fully investigated the matter and concluded that all of HT’s expenditure was reasonable. In addition, Miss Bretherton relies on the fact that HT voluntary gave up control of M’s finances, accepting that her record-keeping was inadequate, and suggesting that the money is paid direct to M in hospital. She submits that this is inconsistent with the characterisation of HT put forward on behalf of AB and MS of a woman who is keen to retain control. Miss Bretherton contrasts HT’s attitude with that of AB who still maintains that he should continue as M’s deputy.

The local authority through Mr Bhose supports HT in defending the allegations of a financial motive. In closing submissions, he argued that the suggestion that HT went to Northampton in November 2013 with the plan of bringing M back to London to get her hands on M’s benefits is unsustainable, in the light of the fact that AB was the court-appointed deputy with access to all of M’s money and it was uncertain at that date how long he would be away. The local authority invites the court to look at HT’s dedication and caring conduct towards her niece, both before she was admitted to hospital and subsequently, when she has continued to visit her most days.

The other principal allegation levelled at HT is that she has been motivated by hostility towards AB and MS and has alienated M from them. It is also said that she has fabricated allegations, including an allegation (not subsequently pursued) that M had been sexually abused while living at AB’s home. In oral evidence, HT strongly denied behaving in the way alleged. It was her evidence that M’s strongly-expressed aversion to seeing AB and MS arose from her own wishes and feelings. She accepted, however, that it was right that she had said that she did not think it was a good idea for M to see them again. She explained that the reason for this was that, whenever their names were mentioned, M would become frightened. In closing submissions, Miss Bretherton invites the court to dismiss the allegation that HT has fabricated allegations of abusive conduct on the part of AB and MS. She points out that M lived with HT for a sufficiently long time that it would have been very easy for a whole raft of false allegations to be made, but this has not happened.

In his closing submissions, Mr Bagchi included a schedule of evidence relating to M’s statements about her wishes and feelings following her move to London. He identified nineteen occasions when M has told professionals words to indicate that she does not want to be married to MS; that she does not want to have contact with AB or MS, and that she is happy living with HT. Mr Bagchi submits that there is scant evidence of brainwashing or coaching by HT. He accepts that it is undoubtedly the case that HT holds very strong views about AB and MS but contends that there is simply no evidential basis beyond suspicion that, when M has made comments about her experiences with AB and MS, she is not relating own feelings rather than those instilled in her by her aunt.

On the other hand, it is undoubtedly the case that HT harbours strong feelings about the conduct of both AB and MS, and is a strong character who is not slow to express her views and feelings. It is to my mind significant that all save one of the nineteen occasions identified in Mr Bagchi’s schedule occurred at least a year after M moved to live with HT, and in the majority of cases over two years later.

I shall set out my conclusions as to findings of fact in the same order as above, starting with the financial allegations against AB.

AB accepts that, on a number of occasions regularly over a period of three years between June 2011 and October 2014, he withdrew money from M’s bank accounts and/or spent money belonging to M on his own travel expenses. In his response to the allegations set out in the schedule, he accepted that he had acted in this way and expressed regret for his actions, explaining how he had used the money as a last resort, and for purposes which M would have supported had she been consulted and able to express a view – for example, to support his mother, her grandmother. AB relies also on the fact that, at an earlier stage, he supported M out of his own resources. In the circumstances, he denies that he acted dishonestly.

I reject AB’s explanation. I find that he spent M’s money for his own purposes without any consideration as to her wishes or needs. I find that he had no intention of repaying her. This was money to which she and she alone was entitled, either state benefits or compensation for the vicious assault perpetrated upon her several years earlier. I find that AB acted dishonestly and in breach of his obligations as her property and affairs deputy. I therefore make the findings sought by the local authority in the supplementary schedule concerning financial allegations (numbers 10 to 17). In the light of those findings, I do not consider it necessary or proportionate to consider the supplemental findings about financial misconduct proposed on behalf of HT.

These serious findings I have made concerning AB’s financial misconduct are relevant in a number of respects. First, they shed light on AB’s attitude towards M in the period prior to the ceremony in August 2013. Secondly, they shed light on his conduct towards her in the period after November 2013 when HT took her back to London. Thirdly, they plainly have an impact upon future decisions as to M’s best interests and the extent to which AB should be involved in her life hereafter.

I turn next to consider the issue of MS’s motivation for marrying M, and, in particular, the allegation made by the local authority and HT that he married her to obtain an improved immigration status, and further that AB knew that this was MS’s intention.

I have already indicated that I accept Mr Bagchi’s characterisation of MS’s evidence as extraordinarily one-eyed. MS has a high opinion of himself and is focused almost exclusively on his own rights and the injustices which he considers have been perpetrated upon him. To my mind, the coincidence of the refusal of his immigration appeal in July 2013 and the very hurried arrangement of the marriage ceremony is glaring. I conclude that MS’s primary motive for marrying M was to improve his prospects of being allowed to remain in this country. I do not consider that this was his only motive. It is notable that, after the wedding, he moved into AB’s house. It seems likely that the plan agreed between the two men was that MS would look after M at AB’s house while AB travelled abroad visiting his wife. I do not accept, however, that there is much reliable evidence that MS harboured warm feelings of affection for M. Had he done so, he would surely have made at least some effort to try to secure her return to Northampton after she left in November 2013. In fact, I find that it suited him far more to live alone in AB’s house without the responsibility of looking after her.

My conclusion, therefore, is that MS’s primary motive for marrying M was to achieve an improved immigration status. I further find that AB knew that this was his primary motive. AB’s own motives are more difficult to discern, but overall I conclude that he acted partly to assist MS in his immigration application but also because he thought it would be right for M, and the family as a whole, for her to be married. In closing submissions, Mr Bagchi submitted that M’s welfare in the widest sense was not at the centre of the thinking of either man. I agree with his submission and also with his conclusion that this is relevant to the consequential issues of residence, contact and the role that each may play in M’s life in future, whenever those considerations might arise.

Thirdly, I deal with the issues surrounding the ceremony on 15 August 2013. This topic covers several of the findings sought by the local authority and HT, in particular, that M did not, and does not, want to be married to MS; that AB coerced M into marrying MS; and that AB and MS failed to take any reasonable steps to ascertain whether M had the capacity to marry, and/or concealed her mental health and/or her marriage from those who may have been concerned to ascertain capacity.

A significant proportion of the evidence put before me concerned the arrangements for the wedding and the ceremony itself. The principal issue to which that evidence was directed was whether M married MS voluntarily or rather was coerced into doing so. On this issue, my principal findings are as follows:

It follows, therefore, that, on the principal allegations made by the local authority and HT (that is to say, the proposed findings numbered 1 and 2 in the composite schedule), I conclude:

With regard to the linked findings sought on behalf of HT, to the effect that AB and MS failed to take any or any reasonable steps or proper steps to ascertain whether M had capacity to marry, and/or concealed her mental health and/or her marriage from those who may have been concerned ascertain her capacity, I conclude that the question of whether or not M had capacity to marry simply never occurred to either AB or MS. In the light of the evidence of Prof Rehman, I do not consider it necessary, appropriate or proportionate for this court to analyse further the lengthy allegations made on HT’s behalf concerning AB’s failure to address this issue or seek the advice of any professional about it. It is undoubtedly correct that AB did not tell the Imam about M’s mental health difficulties, or consult anyone about whether M had the capacity to enter an Islamic marriage. In view of the evidence of Prof Rehman, it seems that this matter simply did not arise as a matter of Islamic social practice. It is inappropriate for this court to pass judgment on this practice unless necessary for the purposes of making decisions about M’s best interests. In my judgment, that necessity does not arise, at least at this stage.

I turn next to findings about the events from November 2013 onwards. On these matters, I prefer the evidence of HT to that given by MS. I accept HT’s allegations that, when she visited AB’s house at the beginning of November 2013, she found M in a distressed state and in a poor physical condition, and the property also dirty and in a poor condition. I also accept that M asked HT to take her back to London, although, given my overall findings concerning M’s vulnerability and impressionable nature, I am cautious about drawing any conclusions as to her true wishes and feelings. Mr Simblet described HT’s account of the circumstances in which M was removed to London as making no sense and a “cock and bull story”. I disagree. I find her account detailed and plausible. Mr Simblet submits that it is significant that she took no photographs, or contacted anyone about the condition of the property. The fact that she failed to take those steps does not seem to me to undermine the credibility of her account. Mr Simblet further submits that, if M had really been living in conditions as described by HT, it is very surprising that HT was planning to go back to London alone until M begged her to take her with her. To my mind, however, the fact that HT did not decide to take M with her until she begged to do so is unsurprising, given that M was married to MS and living in AB’s house. It is true, as Mr Simblet submits, that there is no other evidence – for example, from anyone who saw M after she arrived in London – to corroborate HT’s allegation about M’s condition. I have thought carefully about the absence of corroboration but, having done so, I have reached the conclusion that this does not undermine the credibility of HT’s allegations about the events of November 2013. In considering this important aspect of the case, I have thought carefully about my concerns about HT’s reliability as a witness as particularised above. Having done so, however, I am satisfied, on a balance of probabilities, that her account of the events of November 2013 is true.

It is to my mind very significant that neither MS nor AB took any or any material action in response to HT’s removal of M to London. Their explanations for failing to take any such steps are in my judgment revealing. MS’s explanation that he left the matter to AB who said he would handle it, and his failure to take any steps himself when it became clear that AB was in fact doing nothing about it, are a clear indication in my judgment that he did not see the need to take any steps to secure the return of his wife. Mr Simblet submitted in closing there is no evidence that MS does not genuinely care about M and that his conduct towards her has been entirely consistent with a genuine relationship. I disagree. If MS genuinely cared about M, he would surely have taken active steps to secure her return to the family home. In my judgment, MS’s conduct after November 2013 reinforces the view that his principal motive in marrying M was to achieve an improved immigration status. In closing submissions, Mr Bhose for the local authority submitted that the marriage of convenience MS had entered into had ended up being extremely inconvenient and had not brought in the resolution of his immigration problems. I agree with Mr Bhose’s analysis.

Equally striking is AB’s failure to return to this country at all until September 2014. AB’s explanation – that his priorities lay with the needs of his own wife and mother – does not in my judgment provide an adequate explanation for his failure to anything at all about what was happening to his vulnerable daughter. I conclude that he no longer regarded M as his responsibility, although he continued to spend her money for his own purposes.

Finally, I deal with the cross allegations made by AB and MS against HT. To a substantial extent, these allegations are a riposte to the allegations made against her. I make the following findings which, in my judgment deal sufficiently with these cross-allegations.

On the basis that the court made findings in line with its submissions, the local authority through Mr Bhose invited the court to take a number of steps now in the light of those findings. It invited the court make a declaration of non-marriage in relation to the Islamic marriage of 15 August 2013 and to consider whether it is necessary to make a Forced Marriage Protection Order. The local authority also seeks the discharge AB’s property and affairs deputyship. The local authority further invites declarations and orders that it would not be in M’s best interests to live with either AB or MS, and further that the local authority should be under no obligation to consult them about future best interests decisions. As to future contact, the local authority seeks findings that it is in M’s best interests (1) for contact with HT to continue in accordance with M’s wishes and feelings; (2) if M expresses a clear wish to see AB, such contact should be arranged in line with her wishes and feelings, unless to do so would put her health and safety at risk; (3) there should be no contact between M and MS unless M expresses a clear wish for such contact. Finally, the local authority urges the court to bring the proceedings to an end by making final declarations as to capacity. It is the local authority’s case that, with clear findings, it will be possible for the local authority to manage M’s affairs and personal welfare without the necessity of ongoing proceedings.

I shall address these matters by considering, first, whether to make a declaration of non-marriage, secondly, whether these proceedings should now come to an end, and finally, what orders to make at this stage.

Declaration of non-marriage

In a preliminary document, Mr Bagchi helpfully set out the law relevant to the legal status of the marriage ceremony which M and MS celebrated on 15 August 2013.

In the circumstances of this case, Mr Bagchi submitted that the court is entitled to declare under the inherent jurisdiction that the ceremony which took place on 15 August 2013 between M and MS did not create the legal status of marriage in English law. Mr Bagchi further submitted that no other declaration would be appropriate. Although Prof Rehman’s evidence was that the marriage was probably valid under Islamic doctrine, there would be no utility in a declaration in such terms and public policy leans heavily against giving recognition to an entity which is to be not regarded as having effect in English law. His position is supported by Mr Bhose on behalf of the local authority and by Miss Bretherton on behalf of HT.

On behalf of AB, Mr O’Brien acknowledged that there was no dispute between the parties that the religious marriage which took place on 15 August 2013 is not a marriage recognised in English law but, in the event that the court accepted that M was not coerced into the religious marriage and that there was no reason to challenge the validity of the nikkah, the court should follow the advice of Prof Rehman and conclude that a declaration would serve no real purpose. The court should not make a declaration which would serve no useful purpose, and in any event before doing so should refrain from taking such a step in circumstances where M’s capacity as to whether she would want such a declaration has not been assessed and where she may in due course regain capacity in relation to one or more of the areas identified above, including the capacity to marry. The question of whether or not to make a declaration is a decision concerning her best interests and the court is thus obliged by s.4(3) of the MCA 2005 to consider the likelihood of her recovering capacity in relation to the matter in question.

Mr Simblet stresses that the evidence clearly demonstrates that the nikkah ceremony was valid, that it created a relationship between M and MS, and that it cannot be ignored or set aside by order of this court. This court has no jurisdiction over Islamic marriages and a declaration as the validity of the nikkah in this case would have no effect either within Islamic law or on the opinion of the Muslim community. He acknowledges that a declaration in such terms was made in the earlier case of A Local Authority v SY [2013] EWCOP 3485, but submits that the circumstances of that case were manifestly different. He submits that it would not be right for this court to intervene and make orders about the nikkah. Such a step would infringe the parties’ rights under article 8 of ECHR to respect for private and family life and under article 9 to respect for their religious beliefs. Mr Simblet expands the submission by reference to EU law which is relevant, he submits, because both M and her father are Dutch nationals and are here as a result of AB exercising his EU rights of freedom of movement to this country.

In his supplemental submissions in response, Mr Bagchi stresses the distinction between the status of the marriage under English law and under Islamic law. Where there has been a failure to comply with the legal formalities of the Marriage Acts, the court has the power under the inherent jurisdiction to make a declaration that the ceremony did not create the status of marriage under English law. In contrast, this court has no power to affect the religious status of the marriage. Mr Bagchi confirms that it is no part of the Official Solicitor’s case that there should be any declaration in respect of the Islamic marriage. The declaration proposed as to the status of the marriage as a matter of English law does not affect the religious status of the marriage and as a result does not violate the parties’ human rights under article 9. Just as the legal status of the marriage was irrelevant to the religious significance at the date of the marriage, the mere formal indication of its legal status now should be of no material effect to how it is perceived in religious terms. He submits that the declaration sought should follow on as a matter of course, given the failure to comply with the essential legal formalities. Not to make a declaration runs the risk that the court is seen to sanction a wholly defective process and risks undermining the integrity of the statutory requirements of England and Wales.

In A Local Authority v SY, Keehan J was invited to make a declaration in respect of an Islamic marriage ceremony involving a vulnerable young woman with learning difficulties. He found that her “husband” had exploited and taken advantage of her for the purposes of bolstering his immigration appeal and his prospects of being permitted to remain in this country. Before the ceremony, social workers had attempted to undertake a capacity assessment but the woman, SY, had refused to cooperate. Nonetheless, both the local authority and the police told the husband that the wife had a learning disability and was unlikely to have capacity to consent. The husband ignored their advice and the ceremony (described in the judgment as a “purported” ceremony) went ahead at his home. Following his subsequent deportation, the husband showed no interest in SY. In his judgment, Keehan J stated

“I can reach no other conclusion than [the husband] deliberately targeted SY because of her learning difficulties and her vulnerability. The courts will not tolerate such gross exploitation … In my judgment it is important for SY that a declaration of non-marriage is made in respect of the … ceremony. There are also, in my judgment, compelling reasons of public policy why sham ‘marriages’ are declared non-marriages. It is vital that the message is clearly sent out to those who seek to exploit young and vulnerable adults that the court will not tolerate such exploitation.”

In those circumstances, Keehan J made a declaration, under the court’s inherent jurisdiction, that the ceremony in which SY had been involved was a non-marriage.

As Mr Simblet points out, the facts of the present case can be distinguished from those in the SY case in a number of respects. No party challenges the validity of the marriage as a matter of Islamic law. In contrast to the ceremony in the SY case, which appears to have taken place privately at the husband’s home, the nikkah in the present case took place in public, at a mosque, to which members of the family and the local community were invited. After the ceremony, MS and M lived together at her father’s home and would have continued to do so if HT had not intervened. Mr Simblet also relies on the fact that MS remains living at AB’s home, and continues to wish to be involved in M’s life.

I accept Mr Bagchi’s submission that, as all parties are agreed that the ceremony of marriage which took place on 15 August 2013 did not comply with the statutory requirements of a marriage under English law, it is appropriate for this court to make a declaration to that effect. It seems to me that there are clear benefits for the legal status of the parties to be declared as a matter of record. I reject any suggestion that such a declaration is or may be an infringement of the parties’ human rights. On the contrary, I consider that it reinforces their rights since clarity of status is plainly an aspect of personal autonomy and thus assures respect for their private and family life.

In the circumstances of this case, however, it seems to me that the court must be careful when making its declaration to ensure that its terms are confined to the status of the marriage and English law and do not extend to its status under Islamic law. For this reason, I do not consider that a simple declaration that the ceremony was a non-marriage will suffice in this case. I therefore propose to make a declaration that the Islamic ceremony of marriage between M and MS on 15 August 2013 did not conform with the requirements of the Marriage Acts and that M and MS are not married under English law.

Should the proceedings now come to an end?

On behalf of the Official Solicitor, Mr Bagchi urged the court to make a final order in these proceedings. He contends that the only matters which need to be recorded in a final order are declarations as to capacity and the marriage and a recital of the proposals for contact. He submits that there is no point in keeping these proceedings alive in circumstances where the evidence indicates that M will not recover capacity in the short or medium term. When the time arises to consider M’s future placement and the arrangements for her care, the local authority and health authority should be left to undertake a best interests analysis informed by the findings of this court. It is only if a further dispute arises at that stage that a further application to the Court of Protection should be made. Although the issues listed for determination at this hearing did not include final orders, there are in fact no welfare issues which call for a decision at this stage. With an eye to the overriding objective of the Court of Protection Rules, Mr Bagchi makes the forceful submission that these proceedings have spanned over 2 ½ years and have cost a very considerable amount of public money over a number of hearings.

The Official Solicitor’s argument is supported by the local authority and HT. The local authority seeks final orders at this stage that it would not be in M’s best interests to live with or be cared for by AB or MS, and further that it is not appropriate for the local authority either to consult with MS, or take into account his views, about future best interests decision in relation to M. The local authority also invites the court to consider making a forced marriage protection order and also to discharge AB as M’s property and affairs deputy.

The making of final orders and the determination of these proceedings is strongly opposed by those representing AB and MS. Mr Simblet on behalf of MS submits that such a course would be inappropriate in circumstances where it may well be that M regains capacity in the near future at which point she will be better able to express her true wishes and feelings. For that reason, it was inappropriate for indefinite best interests decisions to be made at this stage. The case was listed only for a fact-finding hearing and it would be wrong for final orders to be made as proposed by the local authority. Mr O’Brien on behalf of AB adopts a similar position. He states that he had understood from the advocates’ meeting that this hearing was essentially to determine issues of past and current capacity and disputes of fact, and that it had therefore come as a surprise to him that the court was being invited to make a final order and declarations as to best interests. Instead, AB invited the court make only interim best interests orders at this stage. In particular, it was submitted on behalf of AB that it was not appropriate to leave the issue of contact to be determined solely by professionals, in circumstances where there had been no critical analysis of the extent of HT’s influence on M. In response, Mr Bagchi pointed out that the original order identifying the issues to be determined at this hearing included “any future directions in respect of M’s best interests in terms of residence, should there be a dispute”. He submitted that there can be no dispute about M’s residence at this stage or in the foreseeable future.

I have considered carefully whether to bring proceedings to an end at this stage. I acknowledge the arguments advanced cogently by Mr Bagchi, in particular his concerns about the proportionality of these proceedings. Ultimately, however, I have concluded that it would not be right to end the proceedings at this point, for the following reasons.

First, although Dr Andrews was pessimistic overall about M’s long-term prognosis, it was clear from his evidence, and endorsed by Dr Grace, that it would be appropriate to undertake a further assessment of M’s capacity when the effects of the clozapine treatment have been established. It is unclear how long it will be before it is known whether the treatment has led to an improvement in her psychotic condition so that a further capacity assessment can be undertaken, but it is at least possible in my judgment, having regard to all the evidence, that the picture may be clearer by the middle of 2018.

Secondly, the issues concerning M’s long-term placement and contact with members of her family are not straightforward. I recognise, of course, that the Court of Protection should only be used as a last resort to make best interests decisions, but given the history of this case and the complexities of the issues, I think it almost inevitable that the court will be required to determine such issues, possibly in the second half of this year.

Thirdly, there is the question of the involvement of AB and MS in the decision-making process. The local authority asked the court to make an order excluding MS from the process altogether. I do not agree that such an order would be appropriate, at least at this stage. S.4(7) requires any person or body making decisions as to the best interests of an incapacitated adult to take into account, if it is practicable and appropriate to consult them, the views of anyone interested in her welfare. Both AB and MS state they are interested in M’s welfare. Despite the criticism of their conduct, and the findings I have made, I do not think it can be said that they are not interested in her welfare. They are not, in my judgment, interested in her welfare to the extent they now profess, but they are undoubtedly interested to some extent. As her father, and the man to whom she is married under Islamic law, they have an interest in her welfare. The question therefore is whether it is appropriate to consult them. On that issue, the local authority, supported as I understand it by HT, contends that it is, or may be, appropriate to consult AB but not MS. On behalf of the Official Solicitor, Mr Bagchi submits that AB’s evidence that, on discharge from hospital, M could simply return to live with him and MS, or even perhaps return to live with MS in India, demonstrates a total lack of insight into M’s needs. Similarly, it is submitted on behalf the Official Solicitor that MS’s focus on his “rights” in relation to M bears no relation to reality and that he would manifestly not be motivated to work with professionals constructively when planning for M’s future.

It seems to me, however, that this engages difficult and sensitive issues. MS is not married to M as a matter of English law but is married to her according to Islamic law. It would normally be appropriate to consult the spouse or partner of the adult concerned, although not necessarily where the spouse or partner is estranged or has been abusive towards adult. In my judgment, the question whether to seek the views of MS when making future best interests decisions concerning M and, if he is consulted, the weight to be attached to his (and AB’s) views are sensitive and difficult issues and, furthermore are issues about which the parties will almost inevitably disagree, leading to further proceedings before this court.

For those reasons, and notwithstanding the very considerable length and expense of these proceedings to date, I conclude that it would be premature to bring them to an end at this stage. I propose, therefore, to direct the local authority to file a further report from Dr Andrews in July 2018 and give the parties liberty to apply upon receipt of that report. It may be that, at that stage, final orders may be appropriate, depending on the evidence as to M’s condition.

I therefore propose, in addition to the declarations as to capacity and the marriage as set out above, to make consequential orders confined to those matters which can properly be dealt with at this juncture.

Consequential orders

M has had very regular contact with HT throughout her lengthy stay in hospital and it is not proposed that this contact should be reduced. There is in my judgment no reason for this court to make any order about it.

M has not seen either her father or MS for several years. Recently she has had some limited indirect contact with AB, by card and video message. There has been no contact between M and MS.

Mr Bagchi submits that M’s wishes and feelings about contact with her father and MS have been fairly consistent over a long period of time. She has expressed antipathy towards MS and appears to want nothing to do with him, although, for reasons set out above, it is not possible for this court to make findings about her true wishes and feelings in this regard. Indeed, there is some evidence that she does not now recall who he is. She is equally clear in saying that she does not want to live with or see AB but is content to continue to receive written material from him, although she no longer wishes to receive any video messages. It is the Official Solicitor’s position that, unless and until M expresses a clear wish to have any form of contact with MS, the court should order that there should be no such contact in her best interests. As for contact with her father, the Official Solicitor submits that, if M expresses a desire to see him, such contact should be arranged in line with her wishes and feelings, unless to do so would put her health and safety at risk. Unless and until she expresses such a wish, no direct contact should be arranged. Indirect contact should continue in the form of cards or letters with the assistance of hospital staff and the social worker, provided M expresses no distress on receiving such communications.

On behalf of HT, Miss Bretherton invites the court to take a different course. She submits that the limited indirect contact, by card and video message that has taken place to date between M and her father has been unsuccessful and there are no grounds for thinking that it should continue. M has expressed a wish that she does not want such contact to continue and HT believes it should come to an end.

On behalf of AB, Mr O’Brien submits that a fresh approach to the issues of contact must now be pursued within the proceedings. He submits that hitherto the approach of the professional parties to M’s contact with her father has been coloured partly by the belief that M had been coerced into the marriage at a time when she could not consent to sexual relations and partly by the strong views held by HT. Mr O’Brien points out that the relationship between M and her father was close for many years and relies on an observation made by the social worker that such contact may have a positive impact on M in view of her limited contact with other family members apart from HT and her cousins.

MS’s position is that he wishes to resume a relationship with M and to that end seeks a resumption of contact, including direct contact.

As set out above, M indicated during the course of her capacity assessment in March 2017 that she was pleased to maintain direct contact with her aunt, HT, and acknowledged receiving letters from AB. Dr Andrews added, however, that M became significantly distressed, thought-disordered and preoccupied when invited to consider whether she might wish to respond to the letters that she had received from her father. In oral evidence, Dr Andrews expressed the view that, were contact to be ordered now, he would be very concerned about the risk of aggravation of M’s psychosis, and also about the difficulties of keeping her engaged with the treatment programme and any future surgery. There was, he said, only so much M could cope with at this point in time.

I accept Dr Andrews’ assessment. My firm conclusion is that at this stage there should be no change in the contact arrangements. M’s contact with her aunt HT can continue unrestricted. It is plainly something which she enjoys and is of benefit to her. Her limited indirect contact with her father AB in the form of cards and letters (but not videos) should continue, provided it is something that does not cause her distress. For the time being, there should be no direct contact with her father, although this is a matter which should be kept under review. There should at this stage be no contact with MS.

I conclude that the arrangements set out above are in M’s best interests, having regard to all the circumstances and the provisions of s.4 of the MCA. All these interim contact arrangements must be reconsidered where the outcome of the clozapine treatment program is known and the time arrives to make long-term decisions about her residence and care.

On behalf of the local authority, Mr Bhose submits that, in the light of AB’s dishonest appropriation of M’s funds, there cannot be any question of his remaining as her deputy. He has demonstrated that he is unfit to hold that office. I agree. I will therefore make an order terminating AB’s appointment as M’s property and affairs deputy.

Finally, the local authority invites the court to consider making a forced marriage protection order under the Family Law Act 1996. The purpose of such an order, it is submitted, would be to guard against any risk of an attempt being made to force M to go through a civil ceremony of marriage with MS. Having regard to the declarations and orders which I have already indicated will be made at the conclusion of that hearing, however, I do not consider a forced marriage protection order to be necessary at this stage. M is at present in hospital and unlikely to be discharged for some time. She is unlikely to have any direct contact with either AB or MS for the foreseeable future. If the local authority wishes to pursue its application for a forced marriage protection order in due course, this can be considered at a further hearing.

In a late supplemental note, Mr Simblet invites the court to direct an immediate interim hearing following the handing down of this judgment to facilitate the consideration of interim orders. My view is that no immediate hearing is necessary. The orders I have proposed in the concluding passages of this judgment are in my judgment the orders currently needed on M’s best interests. I would not, however, prevent any party at least seeking a further hearing upon receipt of the judgment.