Capacity to consent to sexual relations may be person specific test
In Re NB  EWCOP17, NB came to live in the UK in 1985 and married her husband (AU) abroad in 1992. The couple have been living together in London since 1997, following periods of separation and living abroad owing to some immigration matters, and have a daughter born in 1998. NB is said to suffer from what is described as a ‘general global learning difficulty’ and an impairment in her ability to communicate with others. She has been at times assisted by Makaton sign language and her sentences are said to be limited.
A safeguarding enquiry was initiated as a result of comments NB made to her dentist, which are assumed to have given rise to concern that she may be vulnerable to sexual exploitation. An education programme was instigated, this concerned sex education, relationships, contraception and sexually transmitted diseases. Following that work, an assessment by a clinical psychologist was arranged to ascertain her range of understanding regarding those issues. In brief, the assessment found that NB lacked the capacity to marry, lacked an understanding regarding the relationship between pregnancy and intercourse and it was also considered that she was unable to communicate refusal to her husband. There was also evidence that NB very much enjoys the status of marriage, is affectionate towards her husband and on occasion initiates sexual relations.
On 29 March 2019 the matter was listed for a Directions hearing before Hayden J, who was sufficiently concerned to adjourn the case in order to allow opportunity for AU to obtain representation. At this stage there had been agreement between the parties that AU would give a formal undertaking not to sleep with his wife – breach being punishable by contempt proceedings and possibly imprisonment. The matter attracted a great deal of media attention and it is noted that subsequently AU disengaged from the proceedings and left the family home.
The matter came before Hayden J again on 7 May, when the Official Solicitor and Local Authority made submissions in respect of the case law and reach and ambit of the relevant test. Hayden J commented that it seemed entirely artificial to assess capacity in general terms when the reality was entirely specific, noting as follows:
- ‘On the facts of the case, for example it may be that her lack of understanding of sexually transmitted disease and pregnancy may not serve to vitiate her consent to sex with her husband. There is no reason to suggest that AU has had sexual relations outside his marriage. There is no history of sexually transmitted disease. There is one child who, as I have said, is 20 years old.
- As I said on the last occasion, these issues are integral to the couple’s basic human rights. There is a crucial, social, ethical and moral principle in focus. It is important that the test is not framed in such a restrictive way that it serves to discriminate against those with disabilities, in particular those with low intelligence or border line capacity. See: Re: E; Sheffield City Council v E and S  1 FLR 965.’
Counsel for the Official Solicitor accepted that if the test applied were ‘person specific’ the outcome as regards NB’s capacity may well be different.
Hayden J made reference to the context of the criminal law in which consent is and can only ever be person or partner specific and to Baroness Hale in R v. Cooper (2009) 1WR 1786: ‘it is difficult to think of an activity which is more person and situation specific than sexual relations’.
Hayden J concluded, ‘I do not necessarily consider that the applicable test in the Court of Protection necessarily excludes the ‘person-specific approach’.
Hayden J has reserved judgment to take time to carefully consider the issues and noted that he had delivered the interim ex-tempore Judgement in order that AU may receive a copy of it, better understand the focus of the Court’s enquiry and have an opportunity to forward any submissions through counsel as appropriate.
Appeal in B v A Local Authority
NB was recently referred to in the appeal/ cross appeal against the decision of Cobb J in B v. A Local Authority  EWCA Civ 913. Whilst it was reiterated by the Court of Appeal that the test is general and issue specific, it was noted that the ‘application of that test in other cases is, however, still a live matter’ (para 49). The Court of Appeal referred to the observation in the interim judgment of Hayden J that NB’s husband of 27 years was the only person with whom it was really contemplated NB was likely to have a sexual relationship with.
The Court also provided the example of risk of pregnancy being of no relevance to a post-menopausal woman, in relation to an artificial assessment in general terms.
The Court of Appeal noted that presumably the argument before Hayden J was that the conclusion in IM v LM  EWCA Civ 37 ‘does not preclude the tailoring of relevant information to accommodate the individual characteristics of the person being assessed’. In IM [- the Court of Appeal held that, by contrast with the criminal law where the focus, in the context of sexual offences, will always be upon a particular specific past event, in the context of mental capacity to enter into sexual relations the test is general and issue specific. As the argument was not raised in the Appeal in B the Court concluded that they did not need to determine the issue.
It remains to be seen if Hayden J advocates some flexibility in the awaited NB decision.
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.