M v B & Ors

I am concerned for S who was born on 17 June 1981 and is therefore now 23 years of age. She came to the UK when she was one. She is the second of 7 children. Her parents are A now 62 years of age, the father, and G now 39 years of age, the mother. I direct that no reporting of this case shall give any information which might lead to the identification of the parties.

The matter came before me on 6 and 7 April 2005 as a result of proceedings started by M the local authority, by way of an originating application under the courts inherent jurisdiction of 13 November 2003. The local authority at that time sought the following relief –

“1.

No steps be taken in respect of any marriage to S without leave of this court.

2.

S not be removed from the jurisdiction of England and Wales without leave of this court.

3.

All passports and travel documents relating to S be lodged with the High Court.

4.

Such other declaratory or other relief as the court may deem appropriate.”

On 1 July 2004 as a result of an order of Bracewell J. of 8 June 2004, the local authority issued a Part 8 claim under the Civil Procedure Rules (“CPR”). That claim was in these terms-

“1.

The council now seeks declarations that:-

a.

S lacks capacity to make a decision about whether or not she should marry.

b.

it is not in the existing circumstances in the best interests of S that she should marry, or that she should leave the jurisdiction of the court in view of the risk that her parents may arrange for her to be married in Pakistan.

2.

The council also seeks the continuation of the existing injunctions:-

a.

forbidding A and G, or either of them, taking any steps in respect of any marriage of S, without the leave of the court.

b.

forbidding A and G, or either of them by themselves or any one on their behalf, from removing or taking any steps to remove S from the jurisdiction of the court, without the leave of the court.

3.

The council also seeks such other declaratory or other relief as the court considers appropriate in this case.”

The injunctions referred to had been granted by Kirkwood J. on 13 November 2003. Those applications cover the issues which I am asked to decide.

Mr O’Brien appeared on behalf of the local authority. Mr Ford represented the parents, and Miss Ball QC appeared for the Official Solicitor.

At the start of the hearing Mr O’Brien adopted proposals put forward by Miss Ball that further injunctive relief should be sought. This was that the court should continue to hold all S’s passport and travel documents. Also the parents should be prohibited from obtaining any further passport or travel documents for S without the permission the court.

At the conclusion of the hearing there was a short discussion about whether it was better that I should hear this matter under the originating summons as amended, under Part 8, or under a combination of them. Counsel agreed to consider these matters in the light of the evidence and submissions. Mr O’Brien produced further written submissions. Subsequently Miss Ball produced more detailed written submissions for which I am grateful.

The first question is whether S has the capacity to marry. Neither the parents nor the Official Solicitor on behalf of S oppose the grant of a declaration stating that she lacks such capacity.

The second question relates to the parents’ wish to take S to Pakistan for the purpose of a holiday. It is for S to meet her wider family. The local authority, supported by the Official Solicitor oppose that move. Despite the parents’ clearly expressed views that they have no intention of arranging a marriage for S, the local authority argues that such an event is a real possibility. If that is proved, then the risks to S of her entering into a marriage whether formal or informal are such that the court should continue the injunctive relief in the full form now sought by the local authority.

Mr Ford accepts that, if the necessary findings are made and the court concludes that there is a real possibility set out above, then the court has jurisdiction to make the injunctive orders sought. However he argues that there is no sufficient basis upon which such findings could properly be made. Alternatively the court should not exercise its discretion to grant such relief.

Accordingly the questions which I have to determine are as follows:

I propose to set out the main arguments put forward on behalf of the local authority, the parents and the Official Solicitor. This is in relation to both capacity to marry and the injunctive relief sought. I shall then shortly set out the conclusions that I have reached so that the parents do not have to wait to the conclusion of the judgment. It requires to be translated in full for the mother and in part for the father.

Once I have set out my decision and the essential grounds upon which I rely, I will review the evidence. I shall authorise a transcript at public expense so that the parents have a copy available to be read to them.

With the agreement of the parties the oral evidence was limited. I heard from Miss Bartlett, a social worker. She produced, again with consent, a detailed but unsigned statement from an earlier social worker Miss Anita Puri who is sadly seriously ill and away from work. I also heard from Dr Kon a consultant psychiatrist mainly about a conversation in June 2003 between her and the father. I then heard from the father and mother.

On this issue there is no dispute. The basis is clear. It is to be found in early reports and in particular that of a psychologist Dr Stokoe in July 2003 followed by 2 reports from Dr McEvedy, a consultant psychiatrist in March and November 2004.

The position in law is to be found in the decision of Munby J. in Sheffield City Council v E, [2005] 2 WLR 953. The court is invited to follow the test he accepted in that case.

Mr Ford for the parents accepts that that is the proper approach to this question. He also accepts that though the conclusions of Dr McEvedy are not in the precise wording approved by Munby J., they are in terms which allow for no other alternative. Furthermore it has been the parents’ own conclusion for some years that S does not have the necessary capacity to marry. The medical evidence of 2003 and 2004 is therefore not challenged.

The local authority has been involved with the parents and their 7 children since 1985. The history is relevant because of the parents’ attitude. There were concerns about the care and control of the children, neglect, physical and sexual abuse, poor standards of hygiene, a failure of proper diet for S and her sister who have a kidney complaint, and a lack of proper administration of medication. Four of the sisters were registered on the Child Protection Register in 1992 under the category of neglect though the registration was removed in 1993.

In 1999 staff at S’s Special School raised concerns over her personal hygiene which had deteriorated. She frequently smelt and looked unkempt. Her academic progress had ceased. She was admitted to a paediatric ward in February 2000. She was away from home for 18 months.

Dr Alcorn, a child and adolescent psychiatrist, was concerned at the time that the father and mother had not recognised how seriously ill S was. They might not recognise symptoms of a relapse and they did not clearly understand the importance of administering her medication regularly.

The father did not accept there was any good reason for S to be kept away from home. He secured her return in July 2001 by threatening to disown her if she did not come back. He was aware that this was not her wish and he overruled her.

The local authority say that there have been instances when both S and her parents have indicated that they want to go to Pakistan with S for the purposes of an arranged marriage. The parents deny this. They agree to all appropriate undertakings or orders short of stopping them taking S to Pakistan. This, says the local authority, does not offer sufficient protection to S. Were she to enter into an arranged marriage whether formal or informal, the consequences to her would be so great that the risk should not be taken. Injunctive relief is the only appropriate safeguard in the circumstances.

The history shows that there have been good reasons for the local authority to have had reservations about the parents’ care of the children including S. The parents, and in particular the father who is the dominant party, have not understood those concerns. Each of them lack insight into the deficits in their care.

They claim to be aware that S lacks the capacity to marry. But both what they have said and S has echoed shows a clear lack of understanding of her condition. This coupled with their lack of insight and the history poses a real risk for S. It is that on any visit to Pakistan the parents would arrange a marriage for her. Such is that risk that only an injunctive order would sufficiently protect S’s best interests.

There is no need or justification for injunctive relief. There has never been any good reason why the local authority should have had concern about their care of all the children. S should not have left home in 1999 because she was being well looked after there. She was only returned when the father insisted upon it and she has done well since.

In so far as S has said that there are plans for her to be married in Pakistan, these are inevitably unreliable because of her lack of understanding. On the topic of going to Pakistan she has expressed conflicting views which is to be expected.

They have not raised the question of an arranged marriage in Pakistan; it is the local authority who has pursued this matter. If it is found that they have mentioned the subject, it is as consistent with their long held wish to take S to Pakistan for a holiday as it is to take her there for any purpose of an arranged marriage. The grounds upon which this relief is sought is not made out.

They are law abiding citizens who respect undertakings and court orders. They have freely accepted that they will abide by any orders or give such undertakings as permit them to take S to Pakistan on holiday. They are well aware of the consequences should they breach court orders or their undertakings. The risks would be too great. In the exercise of the courts’ discretion, even if there are grounds for injunctive relief, it is not right that it should be imposed on them.

My essential findings as a result of a review of all the evidence are as follows. The father is the dominant person within the household. The wife and S are likely to follow any instruction that he gives especially S. This is because she is highly suggestible, unable to determine where her best interests lie, and has already shown a too ready compliance with her father’s wishes.

The earlier history is relevant. It shows that the father is unable to understand the legitimate causes for concern raised by the local authority and other agencies over a substantial period of time. He lacks insight into his and the mother’s failings in relation to the care of the children. He does not understand them nor the effect of them on the children.

He is suspicious of the local authority and views their involvement with his family as unjustified and interfering. He resents advice that may be given. Unless it coincides with his own view it is unlikely to be accepted. He and his wife have over a number of years accepted that S is not capable of marriage. However there is a strong cultural and religious imperative for her to marry which influences him.

He is motivated to arrange a marriage for S by arrangement in Pakistan. This is not necessarily from any wish to contravene what doctors have said but because of his concept of what is in S’s best interest. He and the mother lack the insight or understanding to appreciate S’s present condition or the potential harm that an arranged marriage would cause her.

He may well be influenced by a genuine belief that if married she might be better off than she is at present. There would be someone to look after her when her parents can no longer do so. The idea that anyone other than the family should provide such care for her would be strongly opposed by him.

The parents have made clear their wish to marry S in Pakistan. This has been shown in a number of unguarded moments. Though they would wish to obey court orders, they are resentful of any interference into their relationship with S whose condition they do not understand, though wanting the best for her.

A combination of that with strong cultural motivation to see S married establishes a substantial risk. It is that if S were taken to Pakistan for a holiday she would agree to enter into an arranged marriage which would be her parents’ wish. Such a marriage would be a potential disaster for S and plainly against her best interests. A clear case for injunctive relief is made out.

There has been no dispute about the appropriate test to be applied when considering whether someone has the capacity as an adult to enter into a contract of marriage. The law was set out by Munby J. in Sheffield City Council v E to which I have referred. It arose on a preliminary issue. It was the appropriate questions to ask an expert in relation to the capacity to marry of a 21 year old who suffered from disabilities.

The local authority in that case argued that the proper approach on the question of capacity to marry had to be assessed by reference to the particular marriage proposal in question and not by any general or abstract considerations. On behalf of the woman E and the man to whom she proposed to marry SJ, it was submitted that the law remained as it had been decided by the Court of Appeal in the case of In the Estate of Park deceased, Park v Park (1954) F p.112.

Munby J. held that 50 years on the test remained as it had been formulated then –

“Was the deceased ….. capable of understanding the nature of the contract into which he was entering, or was his mental condition such that he was incapable of understanding it? To ascertain the nature of the contract of marriage a man must be mentally capable of appreciating that it involves the responsibility normally attaching to marriage. Without that degree of mentality, it cannot be said that he understands the nature of the contract.”

After a detailed and thorough review of the authorities, Munby J. concluded that the questions proposed by the young woman’s solicitors to be put to the experts were correct. Those questions were –

“1.

Has (E) the capacity to understand the nature of the contract of marriage generally (as opposed to the implications of marriage to (SJ) )?

2.

Has (E) the capacity to understand the responsibilities created by the contract of marriage generally?

3.

Has (E) the capacity to give valid consent to marriage generally?”

The decision of Munby J. is of persuasive authority. I have no hesitation in adopting with gratitude his analysis and conclusions. I consider the issues before me in accordance with the questions which he approved.

There are medical reports before me dating back 5 years. I note that in October 2000 Dr Witts, a consultant clinical psychologist, administered a brief intellectual assessment. It placed S’s functioning in the severe learning disability range. Her verbal comprehension was very concrete. He considered that her intellectual performance was below what would appear from her social skills.

There are reports from Dr Kon, a consultant psychiatrist with a particular interest in learning disabilities. I shall return to this in due course.

There is a more detailed report from Dr Stokoe, a clinical psychologist of 21 July 2003. She carried out a full intellectual assessment. She concluded that S demonstrated a very rudimentary understanding of the concept of marriage. S seemed uncertain about her prospects.

Initially she was unsure. Later she asked if her parents had found a boy in Pakistan who she might marry, would the psychologist would be able to help her bring the boy here. She had a poor understanding of sexual relationships and conception.

Her intellectual functioning placed her on the border between the mild and moderate range. In relation to her suggestibility, her score indicated that her degree is extremely high when compared to the comparison group of people with learning difficulties. Given her level of functioning, marriage could prove psychologically harmful in that she was not currently aware of the nature of the contract which she would be entering into.

In September 2003 S’s father had a conversation with Dr Kirsty Passmore, a specialist psychiatric registrar when the result of Dr Stokoe’s report was discussed. The father said that he knew the outcome of the assessment before it was done but was happy with the outcome. It was not considered that at the time her parents would be pushing the issue of marriage.

Dr McEvedy a consultant psychiatrist reported in March and November 2004. He was aware of Dr Stokoe’s assessments. He also knew that S’s social worker, Ms Puri, considered that S presented as socially as relatively intact and articulate but that this was superficial. Her level of comprehension was in fact quite limited.

He considered her verbal intelligence was extremely poor, as was her recall of information. She was most unlikely to be able to use information in any systematic way so as to come to a decision even if she could retain the information in the first place. He confirmed that her ideas concerning marriage and what might be involved were rudimentary in the extreme. In relation to the question of marriage he did not believe that she had the capacity to make a decision of that sort.

Dr McEvedy did not re-interview S for his second report because her learning disability is a static problem. He had been referred to the test of capacity to consent to or refuse medical treatment in the Court of Appeal decision in Re: M B (1997) 2 FLR 541 where it was said –

“Inability to make a decision will occur when:

a)

the patient is unable to comprehend and retain the information which is material to the decision especially as to the likely consequences of having or not having the treatment in question,

b)

the patient is unable to use the information and weigh it in the balance as part of the process of arriving at the decision.”

In relation to this Dr McEvedy concluded that S was unable to comprehend and retain the relevant information material to the decision about whether or not she should marry including the likely consequences of marrying or not marrying. Apart from that her level of learning disability is such that, even if she could retain such information, he did not consider that she would be able to use it and weigh it in the balance as part of the process of arriving at a decision.

He also concluded that her understanding of the nature of a sexual relationship and procreation appeared almost non-existent. He considered that she could not understand the emotional advantages and disadvantages of marriage, she had little comprehension of the legal status of marriage, and her ideas about marriage were very rudimentary indeed.

He had considered information she would need about the implications of marriage, the concept of marriage, sex, relationships, legal relations between husband and wife and implications of marriage on finance and property rights and any religious implications of marriage. It was based on that request that he reached his conclusions.

He also repeated the sad conclusion that she had a static lifelong learning disability. There was not any prospect of altering her level of intellectual function such that she would acquire capacity in respect of these decisions.

Dr Kon in her oral evidence also mentioned briefly S’s capacity to marry. It was her opinion that S could not cope with it.

On that evidence, as all the parties have accepted, it is clear that S does not understand the nature of the marriage contract. Furthermore she does not understand the duties and responsibilities that normally attach to marriage.

Those duties and responsibilities were helpfully summarised by Munby J. in the Sheffield City Council case as follows –

“Marriage, whether civil or religious, is a contract, formally entered into. It confers on the parties the status of husband and wife, the essence of the contract being an agreement between a man and a woman to live together, and to love one another as husband and wife, to the exclusion of all others. It creates a relationship of mutual and reciprocal obligations, typically involving the sharing of a common home and a common domestic life and the right to enjoy each others comfort and assistance.”

Dr McEvedy, mirroring conclusions to which other medical specialists had referred to in the past, has reached a clear conclusion. It is that S does not have the capacity to give valid consent to marriage. I am in no doubt that this is correct.

There is also a helpful report from independent social workers Mr Crompton and Miss Walshe in November 2004. They concluded after a careful balancing consideration that S lacked the capacity to marry which was also not in her best interests. Furthermore it was also against her best interests to leave the country.

They were not asked to give evidence. Their first conclusion is otherwise supported. Their second one is one which I have independently reached. I adopt their arguments in support of that in so far as they are not otherwise covered by me.

I have already summarised the local authority’s case as well as the parents’ response. In support of their case the local authority rely on what both S and her parents have said.

They accept in relation to S that she may not be reliable. They point however to the nature and occasions on which S has expressed her views. They rely in particular upon the high degree of susceptibility that she has to other people’s views as shown by Dr McEvedy. There is also the parents’ argument that they have always accepted that S lacks the capacity to marry.

The first occasion on which there was any mention of marriage was 4 May 2000. Contemporaneous notes show that S said that her mother had talked to her about it.

Again from contemporaneous records on 8 April 2002 S told her then key worker, Miss Pooja Kumar, that she loved someone and wanted to marry him. She also said that her parents wanted her to marry somebody from Pakistan. They were going to call somebody in Pakistan.

The same notes refer to an occasion on 17 June 2002 when there were said to be rumours about the parents taking S to Pakistan to get her married. S said this in confidence. The parents, when asked about their plans for S, said they had no plans.

On 7 October 2002 Miss Kumar went to the parents’ home to drop off S. She reported an incident about S saying that her parents knew somebody she liked and wanted her to marry him. Her mother thought that S had made it up. The father then came out of the house and shouted –

“This is all social services fault. This would not have happened if they had allowed us to marry her in Pakistan. We want to marry her in Pakistan but they won’t let us do that.”

The next occasion was a Care Plan Review, a ‘CPA’, on 5 June 2003. Dr Kon had been present at a similar one a year before. She gave evidence to me about the subsequent one in June 2003, the one in December 2002 having been missed.

Also present were Ms Puri, the parents and S. At this CPA it is important to note that both Miss Puri and Dr Kon took contemporaneous notes.

Miss Puri’s notes read in relation to the end of the review –

“[A] asked for information, if S to be married in Pakistan. He asked if MDT would support S’s application for her husband to come into this country. Parents agreed for S to have ‘capacity to consent test’.”

Dr Kon’s notes at G147 ended with her concluding that the next CPA meeting would be on 4.12.03 and then signing them. She then added –

“Parents asked if I could write a letter to immigration consenting for S to marry a Pakistani so that her future husband can enter UK. S says she wants to marry. Parents have a man in Pakistan identified. I explained it was (not) in my remit to consent or refuse S to get married. Psychologists can assess S’s capacity to marriage. Even then immigration will need to ascertain that it was not a sham marriage. It is up to immigration whether they allow the man into this country.

Plan – Anita Puri will refer S to psychology for assessment of capacity to consent to marriage – vulnerable adults strategy meeting to be organised.”

Dr Kon explained in evidence that the question of capacity to marry had never come up before, none of them had considered it. Her notes were taken at the meeting. She thought the CPA had concluded which was why she signed her notes. She was shocked when the father asked her to write to immigration. Somebody asked what they should do now and it was suggested obtaining a psychiatric report on S’s capacity to marriage which was the first time she had heard of this.

She told me that the father spoke to her in English, they spoke simply. “There was no room for doubt about his intentions”.

She had written on the following day to the GP, her letter read –

“When we thought the meeting had finished the parents brought up the thorny issue of marriage. They wanted to take S to Pakistan to marry a man there. They have a man in mind. They requested that I write a letter to enable S’s future husband to enter the UK.

I explained that this was not within my remit. Furthermore immigration law does not take account of my views. The professionals were unclear as to S’s capacity to consent to marriage. Therefore we will refer S to my psychology colleague Jo Stokoe to assess this capacity …..”

Dr Kon thought that the parents probably would not know of her reservations about the capacity to marry. She explained that at the meetings Miss Puri spoke to the father in Punjabi or English and, if the father did not understand her English, Miss Puri spoke to him.

The father in his evidence to me said that he did not know if Dr Kon had misunderstood him. There was nothing from him about immigration. He did not say S wanted to marry or that there was somebody who could marry her in Pakistan.

It was they who asked him why not let S get married and he said that she did not have the capacity. They did not understand him.

I reject the parents’ evidence on this topic. The evidence against them is overwhelming. Dr Kon rightly said that she is quite meticulous about her notes. She had not raised the question of capacity because of client confidentiality. It was the father who raised the question after the meeting had finished. She was there at the time writing her notes of what the father asked. They are accurate. They coincide with those of Miss Puri. There was no room for error or misunderstanding.

The father raised the question of Dr Kon writing to immigration. It was because he wanted her support for immigration purposes consenting to S marrying and for her future husband to enter the UK. The account is accurately recorded in the notes of Dr Kon writing at the time it was spoken. It is corroborated by Miss Puri. I am sure she has accurately recorded what was said which was, as she said, a shock to her.

It is significant that a month later on 7 July 2003 S spoke to Miss Kumar again on this topic. The contemporaneous note reads –

“After some time in the centre, she (S) told me that she ….. choose the boy now. He is in Pakistan now. ‘I like him and going to marry him soon’. I asked her how you know him, she said I saw his photograph and will show me as well. Then she said she would tell (Miss Puri) as well.”

On 29 July 2003 Miss Kumar told Miss Puri that S was not at home and that she had been told by S’s sister that they had gone to Leeds. There were concerns that she would have gone to the Pakistan Consulate in Bradford.

On 25 September 2003 S told Miss Kumar and recorded by her at the time that she had been to an Asian man in the town to sign in on a form for her passport. She showed her her thumb as well.

On 6 October 2003 the mother asked Miss Kumar whether she would help to tell Miss Puri to sign papers “so we can marry her to Pakistani”. She was told they would pass the message on.

In evidence the mother denied asking for any assistance to get S married. “We do not think of getting her married”. Earlier she had told me that it would be very cruel to marry her in Pakistan and that they would not do anything wrong.

Three days later Miss Puri saw S. She was told that her mother thought she should get married and that her parents had found a boy for her to marry in Pakistan and she would not marry as nice a boy in the UK. She had seen his photograph but did not know his name. She was asked if she had a passport and she said that she thought so.

It was as a result of the conversations to which I have referred that the local authority issued these proceedings. The father would not hand over her passport. He refused again. It resulted in the local authority contacting the police who enforced the order of Kirkwood J. of 13 November 2003.

I have summarised much of his case. In his evidence to me he repeated that S was not capable of getting married. In his view the only cause for concern in the past about their care of the children was that the house needed repairs. His view was that there had been a conspiracy. The concerns about S were mostly fabricated. They had made false allegations about her hygiene to get S away from them.

He accepted that he had threatened to disown S if she did not come home. He said that she wanted to return. He would have seen her again if she did not.

He accepted also that there had been a dispute about the amount of money S should receive from the DHSS. The father’s view of that as he said in evidence was that they were keeping the money so that they could take S from him.

S did know what she wanted. They followed what she wanted. He would let S be questioned in the future but not about matters which should be referred to him.

He would let LA know if the time came when S would be fit to marry. He would talk to solicitors and doctors before making up his mind. S still had evil spirits.

She agreed that S was not capable of marrying. She said no one in Pakistan would want to marry her because of her medication. It was the money that they would have to spend on her as a result. It would be very cruel to marry her in Pakistan.

In the past it was a social worker who asked why S had not been married. The inference was that it was not her parents who instigated it. She added that S knew that she is not fit to marry.

I have set these out earlier in my judgment. I add to the parents’ lack of understanding, insight and their suspicion of authority a further element. It is the unrealistic and illogical reaction to the local authorities legitimate concerns. This includes both their conspiracy theories and a belief in relation to evil spirits.

The question of whether injunctive relief can be granted in relation to an application seeking declaratory relief was considered by Hale J as she then was, in Re: S (Hospital Patients: Jurisdiction) (1995) 1 FLR 302. The case concerned an elderly Norwegian who had been living in this country with a lady friend. His wife and son wished him to return to Norway. There was no dispute about the fact that he was a patient. Proceedings were brought seeking a declaration as to his best interests.

At p.311 Hale J said:

“There is a certain logical difficulty about granted a coercive order in proceedings where the relief sought is merely a declaration of the legal position. No authority has been cited to me in support of the power to do so. On the other hand, though merely a declaration, it is a binding statement of the legal position. And, although this was said in the Guarantee Trust case to be rarely done, it could be in negative terms. Thus if the outcome were to be that it would be an unlawful interference with the patient’s rights, either to remove him from this country or, conversely, to prevent his removal to Norway, then an injunction might well be granted to prevent such an unlawful act. …… I hold, therefore, that there is power to grant an interlocutory injunction to prevent the patients removal and thus to preserve the present position pending the hearing of the plaintiff’s originating summons.”

As Munby J pointed out in A (A Patient) v A Health Authority 2002 1 FLR 845, the declaratory jurisdiction in relation to incompetent adults is the same as that of a court exercising the parens patriae jurisdiction. He also held that the power to make declaratory jurisdiction in relation to adult patients could not go beyond that same parens patriae jurisdiction.

He considered the question of an injunction to restrain marriage in the case of Sheffield City Council v E to which I have already referred. At para. 108 he said this:

“One question which I have not been asked to consider is whether the court can, and if it can whether it should, grant an injunction to restrain the marriage of someone who lacks capacity to marry. There is no doubt, generally speaking, this branch of the court’s inherent jurisdiction extends not merely to declaratory relief but also to the grant of injunctive relief: see A v A Health Authority (2002) EWHC 18 at para. 44. And notwithstanding the qualification which I there expressed it is now, in my judgment, clearly established that the jurisdiction in such cases is not limited to the grant of interlocutory injunctions but extends to the grant of final injunctions. I have myself granted such injunctions in previous unreported cases involving incompetent adults. That said, I prefer to express no views, one way or the other, as to whether this jurisdiction is exercisable or properly exercisable to restrain a marriage. It should not be assumed I am suggesting that it cannot be. But equally it should not be assumed I am saying that it can be.”

The argument has not been taken further before me because of the concessions made by Mr Ford. The question that I am asked to resolve did not come up before Munby J.

On my reading of the authorities and in particular the judgments of Munby J, I am in no doubt that the concession was well made. In appropriate circumstances there is jurisdiction to make an order to restrain those responsible for an adult lacking capacity from entering into a contract of marriage whether formal or informal if it is required to protect that adult’s best interests.

The key to where S’s best interests lies is to follow the guidance given by Thorpe LJ in Re: A (Male Sterilisation) (2000) 1 FLR 549. That case concerned an adult patient whose mother wished to have him sterilised in his own best interests. I refused to grant the application. The appeal was unsuccessful though Thorpe LJ expressed reservations.

However there is a particularly helpful paragraph at the end of his judgment where he said this at p.560:

“I turn from the outcome in the present case to some more general observations. There can be no doubt in my mind that the evaluation of best interests is akin to a welfare appraisal ………… pending the enactment of a check-list or other statutory direction it seems to me that the first instance judge with the responsibility to make an evaluation of the best interests of a claimant lacking capacity should draw up a balance sheet. The first entry should be of any factor or factors of actual benefit. In the present case the instance would be the acquisition of fool-proof contraception. Then on the other sheet the judge should write any counter-balancing dis-benefits to the applicant. An obvious instance in this case would be the apprehension, the risk and the discomfort inherent in the operation. Then the judge should enter on each sheet the potential gains and losses in each instance making some estimate of the extent of the possibility that the gain or loss might accrue. At the end of that exercise the judge should be better placed to strike a balance between the sum of the certain and possible gains against the sum of the certain and possible losses. Obviously, only if the account is in relatively significant credit will the judge conclude that the applicant is likely to advance the best interests of the claimant.”

The Official Solicitor, Mr Laurence Oates, in his report of 31 March 2005, referred to the conclusion of Mr Compton to which I have referred in 11 November 2004. I have set out the conclusions which he accepts. He too considers that, if there is a real possibility that S’s parents may wish to arrange a marriage for her in Pakistan, then he supports a declaration that it is not in her best interests and an injunction and to prevent S going.

I accept that this is the correct test. Miss Ball referred me to Re: H and Others (Child Sexual Abuse: Standard of Proof) (1996) 1 All ER 1. In that case The House of Lords held in relation to the risk of significant harm under the Children Act –

“….. the context shows that in s31(2)(a) likely is being used in the sense of a real possibility, a possibility that cannot reasonably be ignored having regard to the nature and gravity of the feared harm in a particular case.”

In her final submissions Miss Ball carried out the balance sheet exercise envisaged by Thorpe LJ. She listed the positive features of a visit by S to Pakistan:

On the negative side she set out the following points in favour of an injunction:

The meeting of 5 June is relied upon as showing clearly the true intentions of the parents. This has to be considered with their refusal to admit what they said at the time despite 2 contemporaneous records. It means the court has to treat their declared intentions with considerable caution. The negative factors far outweigh the positive ones.

I agree with Miss Ball’s clear analysis. The parents may well believe that marriage is in S’s best interests. There is a powerful cultural motivation for this and a history of resistance to views other than their own. I cannot rely on their protestations to the contrary. S requires protection from family pressures drawn by cultural priorities when the parents’ protection regrettably cannot be trusted. A protection against a risk that is neither understood nor accepted by those responsible for safeguarding S is no protection when faced with strong motivation to ignore the risk.

In my judgment the parents’ lack of understanding and insight, their hostility to any interference as shown by the father, their lack of realism and logic, and their inadvertent admissions that they have marriage in mind persuade me that there is a real risk that they would carry this out. The evidence in its totality makes it in my judgment likely to a high degree. The consequences for S would be a real disaster.

The principle in wardship which is equally applicable here was highlighted by Heilbron J. in Re: D (a Minor)(Wardship: Sterilisation) (1975) Fam 185. She was referring to the thinking behind the safeguarding of children in wardship as applies to S here. She cited the words of Lord Eldon LC in Wellesley v Duke of Beaufort (1827) 2 Russ. 1. where he said:

“….. it has always been the principle of this court, not to risk the incurring of damage to children which it cannot repair, but rather to prevent the damage being done.”

For S’s safety and to prevent serious emotional and psychological harm to her, I am satisfied I should grant an injunction. I rely on the findings I have made and the medical evidence. It is supported by consideration of Article 8 of the European Convention on Human Rights.

Under that heading Miss Ball in her most helpful written submissions referred me to the case of Re: F (Adult: Court’s Jurisdiction) (2000) 2 FLR 512. There the court was concerned with somebody suffering from incapacity and whether it was in their best interests to remain in local authority accommodation and to restrict the mother’s contact.

As Sedley LJ said at p.531:

“But it should clearly be said now that it is T’s welfare which will remain throughout the single issue. The family life for which Article 8 requires respect is not a proprietary right vested in either parent or child; it is as much an interest of society as of individual family members, and its principle purposes, at least where there are children, must be the safety and welfare of the child ……… the purpose in my view is to assure within proper limits the entitlement of individuals to the benefit of what is benign and positive in family life. It is not to allow other individuals, however closely related and well intentioned, to create or perpetuate situations which jeopardise their welfare.”

I grant an injunction to protect S’s private life. I do so to ensure it is not jeopardised by her parent’s actions in seeking to arrange a marriage for her.

I have been asked to provide guidance on the means by which proceedings in cases similar to this should be commenced. The area covered is those cases where there is an application for a declaration in respect of adults who lack capacity to make important decisions in their lives.

I have been referred to both the Rules and those cases which consider the appropriate mode of bringing such applications. It is against a background in which there has been a radical amendment of civil procedure introduced by the CPR in April 1999. I have also borne in mind the role of pleadings in Queen’s Bench proceedings which have no part in the Family Division.

I start by setting out the relevant part of CPR 8 which it is submitted should govern this and similar cases:

“8.1(2) a claimant may use the Part 8 procedure where –

a)

he seeks the court decision on a question which is unlikely to involve a substantial dispute of fact or,

b)

paragraph (6) applies.

(3)

the court may at any stage order the claim to continue as if the claimant had not used the Part 8 procedure and, if it does so, the court may give any directions it considers appropriate

(4)

paragraph (2) does not apply if a Practice Direction provides that the Part 8 procedure may not be used in relation to the type of claim in question ……

(6)

a rule or Practice Direction may in relation to a specified type of proceedings –

a)

require or permit the use of the Part 8 procedure; and

b)

disapply or modify any of the rules set out in this Part as they may apply to those proceedings.”

Under the Practice Direction for Part 8 there is listed a series of applications which have to be brought under Part 8. It includes under A.1(3) and section B those claims which before 26 April 1999 would have been brought by originating summons in the High Court and “no other method for bringing the claim or application on and after 26 April 1999 is specified in a rule or Practice Direction”.

In Re: F (Sterilisation: Mental Patient) (1989) 2 FLR 377 the House of Lords considered the appropriate proceedings to be taken where the court was concerned with the issue of sterilisation involving a woman of 36 suffering from severe mental disorder. Firstly it considered that the use of the parens patriae jurisdiction was not appropriate because of the provision of the Mental Health Act 1959.

Jurisdiction under the Mental Health Act 1983 was also rejected because it did not provide jurisdiction for the court to decide questions relating to the medical treatment of a patient. It also rejected the Court of Appeal’s decision that there existed a jurisdiction to approve or disapprove an operation.

Finally it considered the jurisdiction to make declarations. This it held was an appropriate and satisfactory procedure to be used. Lord Brandon of Oakbrook said that there would have to be a summons for directions heard by a Judge and it would then be for him to decide what more detailed directions should be given.

Following that the Official Solicitor published a Practice Note in relation to sterilisation. He stated that applications in respect of an adult should be by way of originating summons issuing out of the Family Division of the High Court (Practice Notes Official Solicitor: Sterilisation 1989 2 FLR 447).

In Re: C (Sterilisation: Mental Patient: Procedure) 1990 2 FLR 527 Thorpe J. approved the practice in cases of adult sterilisation of an originating summons being issued under RSC Order 28. This has continued with the introduction of the Civil Procedure Rules though Part 8 replaces Order 28.

The reasons are that under Part 2.1 (2) that states:

“These Rules do not apply to proceedings of the kinds specified in the first column of the following table (Proceedings for which Rules may be made under the enactment specified in the second column except to the extent that they applied to those proceedings by another enactment…………

5.

Family proceedings – Matrimonial and Family Proceedings Act 1984, s.40.”

Section 40 of the Matrimonial and Family Proceedings Act 1984 governs the power to make Rules of court for the purposes of Family proceedings in the High Court of County Court. It does not cover the position of proceedings brought under the court’s inherent jurisdiction in which an application for a declaration is made.

I am satisfied that the procedure laid down by the House of Lords in Re: F remains unmodified. That is made clear by a Practice Note, a Practice Direction and a decision of the Court of Appeal.

The Official Solicitor issued a Practice Note on 1 May 2001 headed “Declaratory Proceedings: Medical and Welfare Decisions for Adults who lack Capacity”. It concerned the jurisdiction of the High Court to make declarations as the best interests of an adult who lacks decision-making capacity. It was particularly concerned with cases involving sterilisation and discontinuance of artificial nutrition for a patient in a vegetative state. In paragraph 5 the Official Solicitor expressed the view that Part 8 was the more appropriate procedure and that a Part 8 claim form should be used.

On 14 December 2001 the President issued a Direction headed “Declaratory Proceedings Concerning Incapacitated Adults: Medical and Welfare Decisions”. It noted that proceedings seeking declarations as to the best interest of incapacitated adults for civil proceedings to which the CPR 1998 applied they were more suitable for hearing in the Family Division. The Official Solicitor’s Practice Note to which I have just referred was approved as providing valuable guidance.

The position therefore is clear save for one matter. It will be recalled that CPR 8 relates to a claimant seeking the court’s decision on a question “which is unlikely to involve a substantial dispute of fact”. The question is whether the prospect of such a dispute of fact would invalidate the use of this procedure. I am satisfied that it does not.

I have already referred to the decision of Hale J in Re: S (Hospital Patients: Court’s Jurisdiction) where there was clearly a considerable issue on the facts. The patient concerned was the subject of an originating summons and the Official Solicitor acted as Guardian ad Litem for the patient. I have already referred to part of the judgment relating to whether injunctions could be granted where the relief sought was of a declaratory nature. Hale J held that it could be granted if it was in negative terms.

Any room for doubt was removed by the decision of the Court of Appeal in Re: F (Adult: Courts Jurisdiction) 2000 2 FLR 512. The case involved an 18 year old with an intellectual age of 5 to 8 who had been accommodated with consent by a Local Authority when she was 17. Subsequently the parents withdrew their consent for her to remain with the Local Authority. The Local Authority sought a declaration that it would be in her best interests to remain in Local Authority accommodation and for them to restrict and supervise contact with her parents.

Originally the Local Authority applied for an order under s.29 of the Mental Health Act 1983. An order was made but set aside by the Court of Appeal. The Local Authority then made an application invoking the inherent jurisdiction of the High Court. Johnson J held on a preliminary issue that the High Court did have jurisdiction to hear a claim for a declaratory relief under Order 15 Rule 16 which permitted a declaration only to be sought. The mother appealed as there were irreconcilable differences between her views and that of the Local Authority.

The Court of Appeal pointed out that mental health legislation did not cover the day to day affairs of mentally incapable adults. It held that where there was a risk of possible harm to such an adult, the court had power under the inherent jurisdiction to hear the issues involved and to grant declarations in the best interests of the mentally incapable person.

Finally I note the decision of Munby J in Re: S (Adult Patient) (Inherent Jurisdiction: Family Life) 2003 1 FLR 292. There was in that case a dispute about whether a father should go on looking after his 20 year old son who lacked the capacity to decide where and with whom he should live.

In the course of his judgment the learned Judge reviewed a series of earlier cases. He held that the court had jurisdiction to grant whatever relief in declaratory form was necessary to safeguard and promote the incapacitated adult’s welfare and interests. It included the power to declare that a particular person should be the decision maker on behalf of the adult who lacked capacity.

The following propositions accordingly follow:

Where there are such disputes of fact the court will determine how the respective contentions are to be determined. For this reason it is appropriate in such cases to seek an early date for a directions hearing. This will ensure that the court identifies at an early stage the differences between the parties and the means by which such differences are to be resolved.

In approving the form of proceedings adopted in this case I am following well established practice. It does not enlarge the already broad practice which the court has adopted where difficult and contentious matters about the best interests of adults lacking capacity are raised.