5 March 2018, by Mai-Ling Savage
AB v HT, LB Hammersmith & Fulham, M (by her litigation friend the Official Solicitor) and MS  EWCOP 2, Baker J, 26 January 2018
M had sustained a severe head injury in 2005 and was also diagnosed with hebephrenic schizophrenia. In August 2013, M took part in an Islamic marriage (nikkah) ceremony with MS. In November 2013, M’s aunt, HT, removed M from the care of MS and her father, AB, having concerns as to her welfare. M’s condition deteriorated and M was admitted to hospital under s2 of the Mental Health Act 1983 (MHA).
In October 2014, M’s father complained that M had been kidnapped by HT for financial gain and in April 2015 made an application to the Court of Protection asking the court to decide, amongst other matters, whether M was capable of deciding where she should live and seeking an order that M should reside with him. There were allegations and cross-allegations made by the parties.
On the issue of whether M had capacity to marry in 2013 and consent to sexual relations, the court considered that the totality of evidence as to M’s functioning in 2013 did not displace the statutory presumption of capacity. There was little contemporaneous evidence and, given her fluctuating symptoms, it was not appropriate to speculate as to her condition then.
The local authority invited the court to make a declaration of non-marriage. The court heard evidence from Professor Rehman, an expert in Islamic law. The court accepted that the nikkah ceremony was valid and therefore did not make a declaration of non-marriage but made a declaration that the Islamic ceremony did not conform with the requirements of the Marriage Acts and that M and MS are not married under English law [see paragraphs 176 – 184].
The law in respect of fact-finding hearings is helpfully set out in paragraphs 76 – 83. The court found that MS had married M to improve his immigration status but M had not been forced to marry MS [see paragraph 167 – 169].
On the contested issue of whether proceedings should end there, it was held they should not, despite the fact that they had spanned 2.5 years. This was because it was possible that future capacity may become clearer by mid-2018.
Given the complexity of the case it was inevitable the court would need to determine M’s long-term placement; MS was married to M in Islamic law and the question whether to seek his view when making future best interests decisions concerning M and the weight to be attached to them were sensitive matters about which the parties would disagree. It was ordered that MS should have no contact with M.
The case demonstrates the evidential difficulty in seeking to establish a lack of capacity in relation to a past event (here the decision to undergo the religious marriage ceremony in 2013), especially where the person’s condition causes fluctuating symptoms.
Also of interest is that the declaration of non-marriage was limited to its lack of effect in English law, therefore consistent with acknowledgement of the validity of the religious marriage.
The case is also of note because, despite the length of the case and that all the decisions that were needed for the time being had been made, Baker J considered the prospect for future disagreement on MS’s best interests was so clearly inevitable that the proceedings should not yet conclude.