Royal Courts of Justice
Strand, London, WC2A 2LL
Before:
Mr Justice Trowell
Between:
Stockport Metropolitan Borough Council | Applicant |
- and - | |
EKK | Respondent |
(by her litigation friend, the Official Solicitor) |
Richard Borrett and Adam Weisz (instructed by Stockport Metropolitan Borough Legal Department ) for the Applicant
Sophia Roper KC and Jake Rylatt (instructed by Simpson Millar) for the Respondent
Hearing date: 18 November 2025
Approved Judgment
This judgment was delivered in public but there is a transparency order in force. The judge has given leave for this version of the judgment to be published on condition that (irrespective of that is contained in the judgment) in any published version of the judgment the anonymity of the Respondent must be strictly preserved. Failure to comply with that may be a contempt of court.
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This hearing is the determination of a preliminary issue as to the appropriate test in the circumstances of this case for deciding whether the respondent has the capacity to make her own decision as to whether or not to marry (‘capacity to marry’). It arises in the context of an application under the Mental Capacity Act 2005 (MCA 2005) by Stockport Metropolitan Borough Council (the local authority) in relation to EKK (the respondent).
The local authority has been represented before me by Richard Borrett and Adam Weisz. EKK is represented by her litigation friend, the Official Solicitor, who appears before me by Sophia Roper KC and Jake Rylatt.
It had been anticipated that there might be further parties before me: a daughter of EKK, and ID, the person whom she wants to marry. As it has turned out neither have sought to join these proceedings.
EKK is in her eighties. She suffers from vascular dementia, depression, hoarding disorder and mild cognitive impairment.
The matter first came before me in June 2025 after being transferred from HHJ Case. It was said that the case raised complex and novel issues. In June 2025 in the light of the evidence before me (primarily a report from Dr Catriona McIntosh, a consultant clinical neuropsychologist, and in the context of these proceedings a single joint expert) and with agreement of the parties I made declarations that EKK lacks capacity to conduct these proceedings, to make decisions as to where she lives, to make decisions as to her care and the support she received and to make decisions about the clearing and storage of her belongings. At the same time I made a declaration that she had capacity to engage in sexual relations.
The parties urged on me, and I accepted, that before I could consider the issue as to capacity to marry (which Dr McIntosh had concluded EKK had, in contrast to a decision made the year before by social workers from the local authority) I should determine the appropriate test. I was told that there was conflicting precedent at Tier 3 level and there was no appellate authority. As will be seen below, having had the opportunity to consider the authorities, I no longer accept that is a fair summary of the state of the authorities. It was put to me that the issue was whether the test should focus on the ‘issue of the marriage per se or should include consideration of wider matters.’
Further flagged up as notable in this case was the interrelationship between capacity to make decisions about contact with others (which Dr McIntosh had concluded EKK lacked, again differing from the local authority’s social worker who had concluded she did have such capacity) and the capacity to marry. That has not been on the agenda for this hearing but some of the issues before me did abut that point.
I do need to be clear that I am not at this hearing determining EKK’s capacity to make a decision about marriage.
Summary Background
EKK is now in her early eighties. She is of Scandinavian heritage but has been living in England for very many years. She has been previously married and has two children.
Since late 2016 or early 2017 she has had a relationship with ID, a man, who is some 20 years younger than her. He has had disagreements with one of her children and the staff working for the local authority. He is suspected by the local authority of mis-managing her finances. There have been no findings of fact in relation to that. EKK enjoys a great deal a sexual relationship she has with ID. She has expressed a view that she wants to marry him for some time. Indeed in May 2025 there was a booking at the Stockport Registry Office for EKK and ID to get married. That did not proceed as a consequence of the involvement of the local authority. Currently ID visits EKK daily. He hardly visited her when she was in hospital or residential care. I have been told that EKK has expressed the view that she intends to marry ID whether or not I agree she has capacity to do so.
In July 2021 EKK was evicted from her then home as a consequence of her tendency to hoard. The local authority helped her to find a new home. In April 2024 she had a fall in her new home and had to go to hospital and then residential care.
In November 2024, while EKK was in residential care, the local authority issued this application. The Official Solicitor was appointed as EKK’s litigation friend in December 2024, and a few days later the local authority were appointed her property and financial affairs deputy.
In December 2024, after some clearing of the property by the local authority, EKK was returned to her home. She receives 4 care visits a day from an agency employed by the local authority.
In February 2025 pursuant to a court order of December 2024 a letter of instruction was sent to Dr McIntosh to report to the court as a single joint expert on EKK’s capacity to make decisions on:
The care she received;
Her residence;
Cleaning and rendering her house habitable;
Engaging in sexual relationships;
Entering into marriage or civil partnership;
Contact with others;
Managing her property and affairs; and
Conduct of these proceedings.
She reported on the 24 March 2025 that because of an impairment of, or a disturbance in, the functioning of her mind EKK did not have capacity to make decisions on any of these matters, save for engaging in sexual relationships and entering into a marriage or civil partnership.
There is on a simple (and maybe simplistic) view something odd about a situation in which it could be reported that EKK did not have capacity to make decisions as to what contact she should have with others, but at the same time a conclusion that she had capacity as to whether or not to marry.
That is not the issue for this hearing: it has been put to me by Ms Roper that, odd though it may seem, it might be the situation that someone, P, has the capacity to marry without having the capacity to judge with whom to have contact. Mr Borett accepts that there is not (and should not be) a binding rule that there cannot be a difference between these two assessments but the different conclusions as to capacity in these two different areas he says supports his submissions.
The issue for this hearing
The issue for this hearing had been defined neatly by Ms Roper as whether the matter in relation to which EKK may or may not have capacity to make a decision is:
Whether to marry, or
Whether to marry X.
Mr Borrett amended that by altering it so as (b) reads, ‘Whether to marry ID’. His point is to root the decision in the facts of this case. He says that he is not contending that in every case it is necessary to know whom P wants to marry. One may in some cases need to determine the capacity to marry as a general one, but here the decision which the court needs to consider is whether or not EKK has the capacity to decide to marry ID.
He says that in these circumstances, where there is a known person, it is a nonsense to not consider the concrete question of marrying that particular person and instead consider an abstract capacity to decide to marry, per se.
I note that should I be with Mr Borrett there will then be an issue as to what the relevant information will be that EKK should, in accordance with s. 3 MCA 2005 understand, retain and use or weigh in making the decision. He has provided in his skeleton argument 5 pieces of information, all tending to a negative view of ID. He has said he would need to add to them other, some positive, pieces of information.
Ms Roper, should I be with Mr Borrett, wants to consider what the relevant information should be, but it is a strong part of her case that the impossibility (and in general terms impracticality) of compiling this list is part of the reason why I should reject Mr Borrett’s arguments.
Further I also note that Mr Borrett has asked that Dr McIntosh should reassess her conclusions in relation to EKK’s capacity to make decisions as to contact because of the weight that Dr McIntosh puts on historic concerns in relation to ID’s involvement in EKK’s finances.
The Law
My decision is governed by the MCA 2005. I have been supplied by Ms Roper with a document in which she sets out the relevant parts of the 4 sections which bear on my decision.
1 The Principles
The following principles apply for the purposes of this Act.
A person must be assumed to have capacity unless it is established that he lacks capacity.
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.
A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action.
2 People who lack capacity
For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.
It does not matter whether the impairment or disturbance is permanent or temporary.
A lack of capacity cannot be established merely by reference to—
a person's age or appearance, or
a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.
(5, 6) ...
3 Inability to make decisions
For the purposes of section 2, a person is unable to make a decision for himself if he is unable—
to understand the information relevant to the decision,
to retain that information,
to use or weigh that information as part of the process of making the decision, or
to communicate his decision (whether by talking, using sign language or any other means).
A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).
The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.
The information relevant to a decision includes information about the reasonably foreseeable consequences of—
deciding one way or another, or
failing to make the decision.
27 Family relationships etc.
Nothing in this Act permits a decision on any of the following matters to be made on behalf of a person—
consenting to marriage or a civil partnership,
consenting to have sexual relations,
consenting to a decree of divorce being granted on the basis of two years' separation,
consenting to a dissolution order being made in relation to a civil partnership on the basis of two years' separation,
– (h) …
This framework is not in dispute between the parties, but the following points need highlighting from what has been set out above:
Section 1(4) is important to the decision I need to make. Simply because someone might make an unwise decision it does not mean that they lack capacity. I am told, and it is agreed, that misguided paternalism has no place in the Court of Protection.
Section 2(1) is important generally and I must hold it in mind in relation to the decision I need to make because it is only if the inability to make a decision is caused by ‘an impairment of, or a disturbance in the functioning of, the mind or brain’ that a person lacks capacity.
Section 3(1) is important to the decision I need to make because once I have determined what decision needs to be made it will be necessary to determine the information relevant to that decision so it can be considered whether EKK can understand, retain and use that information to make the decision.
Section 27 is important because if I decide EKK does not have capacity to consent to a marriage I cannot then decide that a marriage is in her best interests. In this regard it should be noted that marriage is in the same category as consenting to sexual relationships.
The case law that I have been taken to starts with the case of Sheffield City Council v E [2004] EWHC 2808. That is a judgment from a hearing, which, like this one, was a preliminary issue as to what the question was which should be asked of an expert (in that case a psychiatrist) in determining whether or not an adult had the capacity to marry. It is a judgment with significant historical reach. It is notable that it situates the issue of capacity to marry as a point of general common law, recognising its implications beyond the parens patriae jurisdiction, drawing heavily on a probate case, Park v Park [1954] P112. It gave a clear answer in relation to the particular question facing me. Mr Borrett tells me the answer it gives is as follows:
The leading authority on capacity to enter a marriage remains Sheffield which held (in accordance with previous case law) that capacity to marry should be ‘act’, rather than ‘person’-specific. Munby J stated at [85]:
“There is, so far as I can see, no hint in any of the cases on the point…that the question of capacity to marry has ever been considered by reference to a person's ability to understand or evaluate the characteristics of some particular spouse or intended spouse….The test is capacity to understand the nature of the contract of marriage. The test is not capacity to understand the implications of a particular marriage.
It is of course necessary to hold in mind that Sheffield was decided under the common law and before the introduction of the MCA 2005, but it is accepted by Mr Borrett that Sheffield has been followed after the introduction of the MCA 2005, and indeed there has been some development over time as to the relevant information which needs to be understood, retained and used when considering whether or not to marry. That development is entirely to be expected as society’s view of marriage changes in the 20 years since Sheffield and as different circumstances present themselves to the court requiring the court to develop the common law but with the same essential purpose.
The last iteration of the relevant information that I was shown was by Mostyn J in NB v MI [2021] EWHC 224 (Fam) in which he concludes:
i) The contract of marriage is a very simple one, which does not take a high degree of intelligence to comprehend.
Marriage is status-specific not spouse-specific. (Footnote: 1)
While capacity to choose to engage in sexual relations and capacity to marry normally function at an equivalent level, they do not stand and fall together; the one is not conditional on the other.
A sexual relationship is not necessary for a valid marriage.
The procreation of children is not an end of the institution of marriage.
Marriage bestows on the spouses a particular status. It creates a union of mutual and reciprocal expectations of which the foremost is the enjoyment of each other’s society, comfort and assistance. The general end of the institution of marriage is the solace and satisfaction of man and woman.
There may be financial consequences to a marriage and following its dissolution. But it is not of the essence of the marriage contract for the spouses to know of, let alone understand, those consequences.
Although most married couples live together and love one another this is not of the essence of the marriage contract.
The wisdom of a marriage is irrelevant.
It is also worth noting the following two paragraphs of that decision:
Therefore, the irreducible mental requirement is that a putative spouse must have the capacity to understand, in broad terms, that marriage confers on the couple the status of a recognised union which gives rise to an expectation to share each other's society, comfort and assistance.
It is not necessary for a person getting married to have an awareness of the detail of the financial consequences of the union, let alone of the law of financial remedies. Nor is there imposed on a person getting married a duty to cohabit, or to engage in sexual relations, or to procreate with his or her spouse.
These three paragraphs together with paragraphs from Sheffield and a similar paragraph (save for different view on the capacity to enter into sexual relation) from Parker J in LB Southwark v KA (Capacity to Marry) [2016] EWCOP 20 were sent to Dr McIntosh when instructing her to prepare her report to guide her as to the test to be applied.
What causes Mr Borrett to say that everything has changed such that the decision that needs to considered is now spouse specific is the judgment of the Supreme Court in A Local Authority v JB [2021] UKSC 52. That is a decision on an individual’s capacity to decide to engage in sexual relations. The particular issue in that case was whether JB in order to have capacity to engage in sexual relation had to understand whether the person with whom he wished to have sex must consent to having sex with him. Mr Borrett relies on the following passage:
[68] As the assessment of capacity is decision-specific, the court is required to identify the correct formulation of “the matter” in respect of which it must evaluate whether P is unable to make a decision for himself: see York City Council v C at paras 19, 35 and 40…
[70] I consider, and the Court of Appeal in this case held at para 48, that the court must identify the information relevant to the decision “within the specific factual context of the case”: see also York City Council v C at para 39….
[71] …However, I respectfully disagree with the statement (in para 77 [of the judgment of Sir Brain Leveson P In re M (An Adult) (Capacity: consent to sexual relations [2015] Fam 61]) that “capacity to consent to future sexual relations can only be assessed on a general and non-specific basis” (emphasis added). Pragmatism does not require that consent to future sexual relations can only be assessed on a general and non-specific basis. Furthermore, such a restriction on the formulation of the matter is contrary to the open-textured nature of section 2(1) MCA. A general and non-specific basis is not the only appropriate formulation in respect of sexual relations as even in that context, “the matter” can be person-specific where it involves, for instance, sexual relations between a couple who have been in a long-standing relationship where one of them develops dementia or sustains a significant traumatic brain injury. It could also be person-specific in the case of sexual relations between two individuals who are mutually attracted to one another but who both have impairments of the functioning of their minds.
The Arguments
Mr Borrett argues that the same logic which the Supreme Court applies to capacity to engage in sexual relations applies to capacity to marry. There is the same ‘open texture’ to section 2(1) in relation to both. So he says the decision in relation to marriage can now be person specific. In this case he says it should be person specific because the decision that faces EKK is marriage to a particular individual, ID.
It would be wrong in this case, he says, to consider capacity to determine an abstract decision about marriage as a matter of status when there is a concrete decision to be made about marriage to ID.
His point is that marriage is not simply a contract between legal entities, it is a relationship with another person. In his oral submissions he told me that it was a union, in an echo of the words of Mostyn J, which I repeat here although they are already quoted above:
Marriage bestows on the spouses a particular status. It creates a union of mutual and reciprocal expectations of which the foremost is the enjoyment of each other’s society, comfort and assistance. The general end of the institution of marriage is the solace and satisfaction of man and woman.
How, he poses, can it be right that EKK’s capacity to create a relationship between her and ID should be considered without assessing what she understands of ID’s nature?
Ms Roper in her written document presented me with a number of reasons whyI should not depart from the conclusion in Sheffield, namely that the decision is a status specific decision not a person specific decision. I set them out summarily as follows, folding some into others as I consider appropriate:
Sheffield is a long-standing authority which remains good law. She refers me in particular to the consideration of Sheffield by the Court of Appeal in York City Council v C and another [2013] EWCA Civ 478. I set out here the particular passages on which she relies, with her emphasis.
[23] The Sheffield decision has subsequently been followed at first instance in M v B, A and S (by the Official Solicitor) [2005] EWHC 1681 (Fam); [2006] 1 FLR 117 and A, B and C v X and Z [2012] EWHC 2400 (COP). Insofar as the Sheffield decision relates to capacity to marriage it has not been challenged in the present appeal and I see no reason not to accept Munby J’s conclusion, based as it is upon established authority, that capacity to marry is to be assessed in general and as a matter of principle, and not by reference to any particular prospective marriage. It is, as Mostyn J neatly put it in D Borough Council v B [2012] Fam 36; [2011] EWHC 101 (Fam), status-specific and not spouse-specific. The subsequent implementation of the MCA 2005 does not establish any basis for questioning the continued applicability of a general and non-specific approach to capacity to marry in proceedings under the Act.
[35] The determination of capacity under MCA 2005, Part 1 is decision specific. Some decisions, for example agreeing to marry or consenting to divorce, are status or act specific. Some other decisions, for example whether P should have contact with a particular individual, may be person specific. But all decisions, whatever their nature, fall to be evaluated within the straightforward and clear structure of MCA 2005, ss 1 to 3 which requires the court to have regard to ‘a matter’ requiring ‘a decision’. There is neither need nor justification for the plain words of the statute to be embellished. I do not agree with the Official Solicitor's submission that absurd consequences flow from a failure to adopt either an act-specific or a person-specific approach to each category of decision that may fall for consideration. To the contrary, I endorse Mr Hallin's argument to the effect that removing the specific factual context from some decisions leaves nothing for the evaluation of capacity to bite upon. The MCA 2005 itself makes a distinction between some decisions (set out in s 27) which as a category are exempt from the court’s welfare jurisdiction once the relevant incapacity is established (for example consent to marriage, sexual relations or divorce) and other decisions (set out in s 17) which are intended, for example, to relate to a ‘specified person’ or specific medical treatments.
[38] I do not therefore accept Mr Bowen’s submission that there is no basis for the court to adopt an act specific approach to the question of capacity to marry but to personalise the question of whether there is capacity to decide whether or not to have contact with, or reside with, a particular spouse. One, capacity to marry, involves understanding matters of status, obligation and rights, the other, contact and residence, may well be grounded in a specific factual context. The process of evaluation of the capacity to make the decision must be the same, but the factors to be taken into account will differ. As I have already observed, this distinction is expressly reflected in MCA 2005, s 17 and s 27 and, indeed, it is common place for the Court of Protection to be asked, for example in a case of dementia, to regulate the contact that one spouse may have with another.
Of course York City Council preceded the decision of JB in the Supreme Court but it is a decision heavily relied on by Lord Stephens in the Supreme Court in JB. He refers in particular to paragraph 35 which is cited above and other paragraphs in the very same part of the judgment in York as referred to by Ms Roper, such as paragraph 37 (which is set out below with my emphasis):
The central provisions of the 2005 Act have been widely welcomed as an example of plain and clear statutory language. I would therefore deprecate any attempt to add any embellishment or gloss to the statutory wording unless to do so is plainly necessary. In this context the reference within the Official Solicitor’s argument to “domains” of decision-making is unwelcome and unnecessary. The court is charged in section 2(1), in relation to “a matter”, with evaluating an individual’s capacity “to make a decision for himself in relation to the matter”; no need has been identified for grouping categories of “matter” or “decision” into domains, save where to do so has been established by common law or by the express terms of the 2005 Act (for example, capacity to marry). It follows that the Official Solicitor’s ground (1), which relies on evaluation with respect to relevant “domains”, and which was not pursued during oral argument, cannot succeed.
It is not put by Ms Roper as highly as to say I am bound by the doctrine of precedent to follow York. She accepts that case was a decision on capacity to make decisions in relation to cohabitation. Nonetheless she says to me that these are powerful obiter comments, which cannot be brushed aside in the light of JB because the central argument which Mr Borrett says JB advances (i.e. that describing the decision to marriage as act specific and not person specific is contrary to the plain language of the statute) is expressly considered in York, and it is expressly spelt out in York that capacity to marry whether by virtue of the common law (which will be a reference to Sheffield and the cases referred to in that decision) or the express terms of the 2005 Act (which is a reference to sections 17 and 27 of the Act) is act not person specific.
Sheffield is right as a matter of principle. She draws my attention to the reasons expressed by Munby J in that case:
the nature of the contract of marriage is shared in common by all marriages;
marriage is not something on which the average person needs to obtain expert advice;
the contract of marriage is very simple;
there is an important public policy consideration, namely,
There are many people in our society who may be of limited or borderline capacity but whose lives are immensely enriched by marriage. We must be careful not to set the test of capacity to marry too high, lest it operate as an unfair, unnecessary and indeed discriminatory bar against the mentally disabled.
The Sheffield test is straightforward, well understood and easy to apply. Any other test I am told would likely require a hearing in each case to determine what information should be considered to be the relevant information and might well involve a fact-finding hearing as a preliminary to that.
The Sheffield test is coherent. In oral submissions it was put to me that a test which might be person specific would be likely to throw up different results as to capacity to marry in different circumstances: say an issue arose where there was no particular spouse, and then a spouse was located, would capacity need to be considered again? Or, might someone be considered to have capacity to marry one person, but not have capacity to marry another?
A person specific test is in effect spouse vetting and that is wrong in principle.
The decision in JB was as to capacity to engage in sexual relations. It was not a decision as to capacity to marry. Different considerations apply. Moreover, the actual decision in JB was act specific, not person specific.
In her oral submissions the nub of her case appeared to me to be that the question to be considered in relation to marriage is one of status. The capacity to consider a change in status can be considered without reference to the person one might intend to marry. I would paraphrase her case in this way: it is for the court to determine the principle as to whether someone can decide to marry or not; it is for the person to use that capacity, if a positive decision is made, and choose who to marry.
Discussion and conclusion
There is necessarily involved in this case a sense of mental gymnastics. I am here making something of an abstract decision, as to the nature of the question which I am to consider, and in the first instance an expert is to consider when advising me whether EKK has capacity to make a decision in relation to marriage.
The abstraction comes in different layers but underlying it is an abstraction that goes to the very nature of the MCA 2005: it is not for me, in this situation, to consider what is in EKK’s best interests, ultimately (and not today) it is only for me to consider whether she has the capacity to consent to marriage.
Faced with the prospect of abstraction and a session of mental gymnastics there is something extremely tempting by what is held out as a common sense and practical point, namely, define the question as the practical one, the marriage to ID, rather than the abstract one, marriage in general.
There is force in Mr Borrett’s observation that the actual decision that EKK has to make is whether or not to marry ID, so why not consider that question? That can be developed in various ways. If marriage is considered a contract it is necessary to consider not only whether the contract, per se, can be understood but also whether P, entering into that contract can assess whoever it is who will be at the other end of the contract. Or, more concretely, given cohabitation is a normal part of marriage should a person be considered to have capacity to marry if they do not have capacity to decide with whom they should have contact?
There are two reasons, I have concluded, why I should not take Mr Borrett’s offer of a simple practical answer. First, I consider that York must guide my decision. That spells out in terms that it has been established that capacity to marry is status or act specific, not person or spouse specific. The decision in JB does not wipe away that authority. JB urges a return to words of the Act; that same urging permeates York.
Second, there are good principled reasons why Sheffield is the right approach. The MCA 2005 is premised on an assessment of P’s capacity. It is inevitably therefore focussed on the operation of P’s mind. Extending the question which needs to be considered to include an assessment of the intended spouse, or even, to put it in terms more compatible with the Act, P’s ability to assess the intended spouse, will necessarily divert the court into an assessment of the intended spouse, rather than P’s capacity. If nothing else, there will need to be a determination as to the relevant information about the intended spouse which P will need to be able to understand, use, retain and weigh. That will put P in a substantially different position to someone not considered vulnerable. It will involve the apparatus of the court evaluating what is and is not relevant information about an intended spouse.
In response to the requirement that I have postulated above that in order to have capacity to marry one needs to have an ability to assess the character of the intended spouse I am helped by Munby J in Sheffield. He says:
… The test is capacity to understand the nature of the contract of marriage. The test is not capacity to understand the implications of a particular marriage. Putting the same point somewhat differently, and this is really Mr Whitfield’s core submission, the nature of the contract of marriage is necessarily something shared in common by all marriages. It is not something that differs as between different marriages or depending upon whether A marries B or C. The implications for A of choosing to marry B rather than C may be immense. B may be a loving pauper and C a wife-beating millionaire. But this has nothing to do with the nature of the contract of marriage into which A has chosen to enter. Whether A marries B or marries C, the contract is the same, its nature is the same, and its legal consequences are the same. The emotional, social, financial and other implications for A may be very different but the nature of the contract is precisely the same in both cases.
What is being assessed in considering capacity to enter into marriage is a capacity to understand the nature of marriage. It is not an assessment as to whether P can understand the implications of a particular marriage. It struck me at first that this argument was more rhetorical than logical because when entering into a marriage it is usual to assess, albeit with all the risks that come with the imperfections of being human, the implications of that marriage. Munby J is however saying that such an assessment of the implications is not part of the court’s job in assessing capacity to marry. It might in fact be that the consequences of a marriage are such that someone who does not have capacity to determine with whom they should live cannot live with their spouse, but that is a different issue to the issue being here considered, whether or not they have capacity to marry. It would be fundamentally inconsistent with the approach to the capacity to marry in the common law to require an ability to consider the implications of the marriage to be part of marriage capacity.
I pause to reflect on section 3 (4) of the Act. I repeat it here:
The information relevant to a decision includes information about the reasonably foreseeable consequences of—
deciding one way or another, or
failing to make the decision.
Does this alter what is set out above? I do not consider it does; reasonably foreseeable consequences are not the same as the implications of a marriage which are being considered by Munby J. The reasonably foreseeable consequences will be such things as arranging a ceremony and considering living arrangements. They are the sorts of matters raised as relevant information in the paragraph cited above from Mostyn J’s decision of NB v MI and are dealt with in this case in the already existing report of Dr McIntosh carried out under the status rather than person specific analysis.
The approach set out in Sheffield and developed thereafter enables the right balance between the protection of the incapacitous and a restriction on paternalistic involvement of the court. P needs to have capacity to understand what marriage is. If P does have that capacity it is not for the court to evaluate the person whom they wish to marry. To do so would be an overreach of the court’s role.
So I conclude that the question to be considered here is: does EKK have capacity to make a decision to marry, not does she have capacity to make a decision to marry ID.
I anticipate that further directions will now be needed in this matter and invite the parties to consult with each other before approaching me as to the next stage.
Mr Justice Trowell
27 November 2025