COP 11950943 IN THE COURT OF PROTECTION Royal Courts of Justice, Strand, London WC2A 2LL 30th November 2012

Before: THE HONOURABLE MR JUSTICE BODEY BETWEEN A LOCAL AUTHORITY And SK (by his litigation friend) & OTHERS -----(Transcribed from CD by Cater Walsh Transcription Ltd., 1 Floor, Paddington House, New Road, Kidderminster DY10 1AL Official Court Reporters and Tape/CD Transcribers) Telephone: 01562 60921 / 510118; Fax 01562 743235; Email: info@caterwalsh.co.uk
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APPLICANT

RESPONDENT

-----MS V. BUTLER-COLE appeared for the Applicant. MR A. BAGCHI appeared for JK. MR CK represented himself MR J. O’BRIEN appeared for the Official Solicitor. -----JUDGMENT

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Friday 30th November 2012 THE HONOURABLE MR JUSTICE BODEY: A. Introductory.
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This is an application by a Local Authority (“the Local Authority”) for the determination of an issue as to whether a severely brain damaged man (“SK”) had the capacity to enter into a marriage in November 2010. The parties to this issue and their positions are as follows. (a) The Local Authority, represented by Miss Butler-Cole, submits that SK lacked capacity to marry. (b) JK, whom SK married on 17th November 2010, is represented by Mr. Bagchi, who submits on her behalf that SK had the necessary capacity to marry, such that the marriage entered into by SK and JK is valid. (c) The brother of SK, CK, who has represented himself, is of the view that SK lacked capacity to enter into marriage. (d) The Official Solicitor, who acts on behalf of SK, and is represented by Mr O’Brien, also submits that there was a lack of capacity.

2. All counsel have submitted written presentations augmented by oral submissions. I am grateful to them and to CK for the thoughtful and collaborative way in which this hearing has been conducted. The question of capacity to marry is only one of a number of issues which arise, and have arisen, in respect of SK but I need say no more about them here. No-one disputes that he lacks capacity to litigate and lacks capacity as to various other decisions, for example as to his residence, treatment, and care regime.
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I have read a considerable volume of documentation, including the statements of many witnesses, both lay and professional, many medical reports and records, minutes of meetings and so forth. I have heard evidence from the following witnesses on behalf of those asserting that SK lacked capacity: (i) SK’s brother, CK; (ii) SK’s elderly mother, RK; (iii) Dr. Grace, Consultant Neuropsychiatrist, who has had considerable contact with SK as one of his treating clinicians; (iv) Mr. Gentleman, Consultant Neurosurgeon and Clinical Director of a brain injury rehabilitation service; (v) Dr. Ruth Kent, Consultant in Neurological Rehabilitation; and (vi) Margaret Carney, SK’s current social worker, who has seen him on some 30 occasions. I have heard the following witnesses in support of JK’s case that SK had capacity: (vii) JK herself; (viii) KR, the adult daughter of JK; (ix) Mrs B, a friend of JK and ‘a witness’ to the ceremony; (x) Mr. R, who was SK’s ‘advocate’ from August 2010 and at the time of the wedding, and who considers that SK had capacity to marry; (xi) Miss SJ, an Assistant Registrar of Marriage, who assisted at the wedding ceremony; (xii) Mrs E, Deputy Superintendent Registrar of Marriages, who interviewed the couple on 26th October 2010 and later conducted the ceremony; (xiii) Mr. L, Superintendent Registrar of Marriages for the registration service of the County Council concerned, who gave explanatory evidence about the practice and procedures involved in register office marriages; and (xiv) Dr. Khouja, jointly appointed Consultant Psychiatrist.

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JK relies on part of Dr. Khouja’s written report in which, based on his then interpretation of the case law on capacity to marry, he concluded that SK had such capacity. 4. The immediate background to the marriage is itself significant and raises issues of fact. It is significant because it helps to shed light on the dynamic as between SK and JK, and as to the sort of emotional atmosphere in which SK would have been likely to have found himself when in JK’s company. Before coming on to those factual aspects of the case, however, I need first to give a brief overview of the wider background and to set out the law. I shall then review as shortly as possible the copious expert evidence about SK, since it helps to explain the relationship dynamics and informs the probable manner in which the marriage came to be planned and celebrated. Many of the details in this judgment are kept deliberately vague to help protect the identity of the parties. B. Brief Overall Background.
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SK is 56. He had no brain damage or impairment until 2006. His younger brother CK is 52. JK is 55. In 1975 SK and JK had a relationship as teenagers lasting for about a year. That broke down and they went their separate ways for about the next 30 years. In the late 1970s SK (aged 22) was married to a woman who I will call ‘A’. That marriage lasted until about 1983 when the couple were divorced. JK too was married in the late 1970s and was divorced in the late 1990s. In the late 1990s SK (aged 43) married a woman whom I will call ‘S’. Later that year she gave birth to the couple’s son ‘J’ who is now 13. In about 2005 the couple separated. SK returned to live with RK, his mother. The separation of SK and S was acrimonious and created a lot of stress, the reasons for which do not now matter. In the result SK began to drink heavily. In December 2006 SK (aged 50) suffered the first of two head injuries when he fell. It was a severe head injury causing profound damage to both frontal lobes of his brain and to the right temporal lobe. He has not significantly worked since. He was in hospital for some time. Subsequently, on a date in 2007, he was discharged to his mother’s home. In the same year he and S were divorced although the financial arrangements between them were not settled until relatively recently, with CK acting as SK’s litigation friend. In about December 2007 SK sought out and met JK. A relationship between them was rekindled and SK would stay at JK’s home a number of nights a week instead of at his mother’s. There was a sexual relationship between them. JK says that he proposed to her, which she accepted, although there was no ring and no date set. It seems that SK’s excessive drinking continued and in the summer of 2008, following abnormal liver tests, he was admitted to hospital for alcohol misuse and various behavioural difficulties. At about that time he ended the relationship with JK, telling her (she says) that he was too unmanageable for it to work. In November 2008 SK suffered a second head injury when hit by a bus. He sustained a left temporal subdural haematoma and a traumatic subarachnoid haemorrhage to the right parietal lobe with some intraventricular haemorrhage. Dr. Khouja said in evidence that it represented and represents ‘catastrophic brain damage’ affecting virtually every aspect of SK’s functioning, particularly from the psychiatric and psychological point of view. SK
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was left with hugely impaired cognitive capacity and executive functioning. As soon as JK learnt of SK’s second accident, the day after it happened, she began to visit him in hospital and she has continued to do so more or less daily ever since. SK underwent various moves of hospital until in November 2009 he was eventually placed at a neurodisability unit (“the placement”) quite near to RK’s (his mother’s) home, where he has essentially been resident to date. Like JK, his mother RK and his brother CK visit him at the placement regularly.
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On 24th May 2010, during a ‘best interests’ meeting attended by JK and her solicitor, reference was made to a report and a letter from Mr. Gentleman, in which he said he was “...quite certain that, because of cognitive impairments affecting memory, informationprocessing and judgment, SK does not have the capacity to enter into any legally binding contractual relationship, such as marriage.” The minutes of that meeting record SK’s mother RK saying that JK had asked SK to marry her (JK), at which the chairman of the meeting responded that SK was “...clearly not in a position to agree to marriage.” The minutes of a subsequent best interests meeting dated 18th July 2010 (four months before the marriage) record that through her solicitor JK ‘accepted the results of the capacity test’. That was clearly a reference to the report of Mr. Gentleman just mentioned. In the result, social worker Margaret Carney told me that the Local Authority did not feel it necessary to think further about entering a caveat against SK’s getting married. On 26th October 2010, JK asked SK’s mother RK if she could take SK out for the day to visit a local museum. RK agreed to this. In fact, JK took SK to the local register office accompanied by SK’s advocate Mr. R, where she and SK went through the process of attesting their notices of intended marriage. JK and Mr. R say that SK was very clear with them that he did not want members of his family nor anyone else to be told of the intended marriage. SK’s mother and brother were therefore kept in the dark that JK had taken this step. On 12th November 2010 (a week before the wedding) SK underwent a bladder-stretch operation. JK prays in aid the fact that the surgeon and anaesthetist accepted SK’s consent to his undergoing the operation and to his subsequent discharge from the hospital. On 17th November 2010 JK asked RK for her permission to take SK to an event organised locally by Headway, the brain injury charity. RK agreed. In fact on the way to the event JK took SK to the register office where they were married by Deputy Superintendent Registrar Mrs E, an experienced registrar. SK’s family, RK and CK, were not made aware of the marriage until about three weeks later, when Mr. R telephoned RK and told her of it. She was extremely upset. Unhappily, the already poor relations between (i) herself and CK (on the one hand) and (ii) JK (on the other hand) deteriorated and still remain at a very low ebb. On Friday 4th February 2011 JK took SK out from the placement and failed to return him. On the same day there was a best interests meeting which JK did not attend, saying that she was aware that RK and CK were going to be in attendance. Mr. R visited SK at JK’s house and spoke to him alone there. He then attended the meeting and read a statement on behalf of SK in which SK was reported to have wanted the meeting to be told: (i) that he did not want to attend, as he already knew the outcome (regarding residence) since the professionals were not interested in his best interests but their own (I paraphrase); and (ii)
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that he did not want to see his brother CK at the meeting. This caused a verbal brush at the meeting between Mr. R and CK, who said he did not believe SK would have said such a thing. The Local Authority were concerned over that weekend that JK was not returning SK to the placement, as he did not have his medication with him and they were not satisfied with the ‘aids’ available for him at JK’s home. When social worker Miss Carney and an Occupational Therapist attended there, JK was reluctant to give them access. They wanted to see SK on his own to try to ascertain his wishes and feelings about moving from the placement like this, but JK refused to let them do so. This led the Local Authority to commence proceedings in the Court of Protection and an interim order was made on 9th February 2011 requiring, in effect, that SK be returned to the placement. JK duly complied with that order. Miss Carney told me, and I accept, that on his return to the placement SK seemed pleased to see her and to be back. SK has (as I have said) lived and been cared for there since. C. The Law General
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The law by which the decision in question is to be determined is set out in the first three sections of the Mental Capacity Act 2005, which came into force on 1st October 2007. I need refer here only to those sections most relevant to the issue before me. By S1(2): “A person must be assumed to have capacity unless it is established that he lacks capacity.” This presumption of capacity places the burden of proof on an Applicant (here the Local Authority) seeking a finding of incapacity at the material time. By S1(4): “A person is not to be treated as unable to make a decision merely because he makes an unwise decision.” By S2(1): “...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 disturbance in the functioning of, the mind or brain.” It is common ground that the ‘impairment or disturbance’ aspect of this section (“the diagnostic test”) was satisfied regarding SK at the material time. By S1(3), a finding of lack of capacity must not be made on account of a person’s age or appearance, or on the basis of unjustified assumptions about his capacity. By S2(4): “In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities.” By S3(1): “For the purposes of S2, a person is unable to make a decision for himself if he is unable – (a) to understand the information relevant to the decision;

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(b) to retain that information; (c) to use or weigh that information as part of the process of making the decision; (d) or to communicate his decision...” By S3(3): “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.” By S3(4): “The information relevant to a decision includes information about the reasonably foreseeable consequences of: (a) deciding one way or the other, or (b) failing to make the decision.”
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It goes without saying that the court must have regard to all the evidence: that of the experts and that of lay witnesses as to fact, taking an overview of the entirety of the relevant circumstances. In so doing the court has to guard against an over-paternalistic approach, as Munby J (as he then was) said at paragraph 144 of Sheffield City Council -v- E & Another [2005] 2 WLR 953 (“Sheffield”): “...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 on capacity to marry too high, lest it operate as an unfair, unnecessary and, indeed, discriminatory bar against the mentally disabled.” Mr. Bagchi submits that, since the underlying subject matter here consists of a duly celebrated marriage, the court should not take any decision which might lead to the subsequent annulment of the marriage unless the evidence is compelling. It is not easy to correlate this with S2(4) of the Act (above) which expressly imposes ‘the balance of probabilities’ as the standard of proof. Whilst that therefore has to be the standard, I will keep in mind the seriousness of the underlying issue when reaching my decision and will not decide lightly that the prescribed standard has been met by the Local Authority. Mr. Bagchi further submits that the decision about SK’s capacity to marry needs to be taken coldly on the basis of the expert and other evidence, such that if and to the extent that there may be some respects in which JK could be criticised, that should not be allowed to influence the court’s determination as to SK’s capacity. I accept that submission. The relevance of JK’s role is merely as to the extent to which SK may or may not have been under her conscious or unconscious influence in forming his stated attitudes, wishes and feelings.

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The Test for Capacity to Marry.
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I need to set this out in more detail than would generally be necessary because of an uncertainty as to the test felt by one of the experts, Dr. Khouja, leading to his conclusion that on one interpretation SK had capacity to marry at the material time. Following the coming into force of the MCA 2005 on 1st October 2007, the aim has been to deal with
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mental incapacity cases by reference to the Act itself without calling upon pre-Act case law for guidance, although there may be cases where it does remain necessary to do so: RT -vLT [2010] CoPLR 1061 at paragraphs 40 and 52. Capacity to marry is one such example of the need to look at pre Act case law. The S(3) requirement of an ability to ‘understand, retain, use and weigh’ information begs the question ‘what information?’. Regarding marriage that question is answered by pre-Act authority, in particular by Sheffield (above). There, after a far-ranging review of case law on this topic, Munby J propounded the following: (i) that it is not enough that someone appreciates that he or she is taking part in a marriage ceremony or understands the words; (ii) that he or she must understand the nature of the marriage contract; (iii) that this means that he or she must be mentally capable of understanding the duties and responsibilities which normally attach to marriage; and (iv) that the contract of marriage is in essence a simple one which does not require a high degree of intelligence to comprehend. Munby J laid down further that the issue is whether the individual had the capacity to understand the nature of the contract of marriage ‘full stop’; not the implications of a particular marriage to a particular person. Otherwise the necessary distinction between capacity and ‘best interests’ would be compromised.
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At paragraph 132 of Sheffield, Munby J set out in a non-exhaustive list the information which an individual needs to have the ability to understand in order to have capacity to marry: “One must be mentally capable of understanding the duties and responsibilities that normally attach to marriage ... 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 other’s society, comfort and assistance.” At paragraph 56 of X City Council -v- MB, NB and MAB [2006] 2 FLR 968 Munby J added to the requirements for capacity to marry a need for capacity to consent to sexual relations (a point which had not arisen in Sheffield) because a sexual relationship is generally implicit in marriage. In Local Authority X -v- MM and KM [2007] 1 FLR 443 Munby J repeated what he had said at paragraph 134 of Sheffield, restating how the S3 test for capacity (which was then about to come into force) fits with Sheffield. He explained that the test of being able to ‘understand, retain and weigh up’ under S3 is just as applicable where the question is whether an individual has the capacity to marry as it is where the question is whether he or she has the capacity to take any other decision: “...it is simply that such a refined analysis is probably not necessary where the issue is as simple as the question whether someone has the capacity to marry, or to consent to sexual relations.” In other words, because for most people, marriage is to be regarded as a fairly straightforward concept (compared for example with litigating, or with many medical procedures) one would not normally need to spend too much time on assessing an individual’s ability to ‘understand, retain, use and weigh’ the information about marriage which is referred to in Sheffield. Nevertheless, there will occasionally be cases where the degree and/or nature of the individual’s impairments does make it necessary to do so, because for him or her a decision about marrying is not actually a simple one. This is one such case. I shall need to revert to the point below on the issue of how Dr. Khouja struggled with the test in law and came to the original conclusion that SK had capacity.
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Last on the question of the test for capacity to marry, there has been discussion at this hearing about two other issues. The first is as to whether or not one aspect of the information required to be understood by an aspiring spouse (either as one of the consequences arising from the status of marriage, per Sheffield, or as being a ‘reasonably foreseeable consequence’ of a decision to get married, per S3(4) of the Act) is that his or her financial position may be affected by the concept of marital ‘sharing’, particularly if the marriage failed and there were financial remedy proceedings. The point has potential relevance here because of various things said by SK suggesting that he does not understand that his apparent wish for his property to pass to his son J could be affected by marriage; nor that his and JK’s assets would not necessarily remain on the basis ‘what’s hers is hers and what’s mine’s mine’, to use his own words (albeit said when tired). Dr. Khouja said that SK had a firm view that things should not be shared and that he (SK) told him that there are no legal or financial consequences of marriage. It was clear during argument however that a requirement of being able to understand and weigh up the sharing aspect of marriage, in terms of one’s property and/or income, is far from straightforward. What exactly, for instance, do individuals need to understand? What questions exactly would have to be asked of them? And how exactly would the concept of ‘sharing’ be explained to them? Would the test (intended to be fairly simple) become more complicated, or the ‘bar’ for capacity end up being raised? And would one run the risk of excluding individuals on a personal circumstances basis? Miss Butler-Cole, although running this point, fairly accepted that it is not crucial to her case and the Official Solicitor suggested that the court should not ‘go there’ unless this aspect were critical to outcome. I agree with that and shall not ‘go there’ in this case. The same observations apply to the second issue raised but not pressed by Miss Butler-Cole, namely as to whether a reasonably foreseeable consequence of marriage which needs to be understood and weighed up, is its likely effect on relationships within one’s existing family. Such a requirement would be likely to blur the distinction between ‘marriage generally’ and ‘marriage to a particular individual’; but again it is not necessary to ‘go there’ in this case.

D. The Medical Evidence. 21. I shall not set out here the qualifications of the experts as these appear from their reports. They are all highly qualified and experienced in their respective fields, as briefly touched on under the heading ‘Introductory’ above. Mr. Gentleman, as I have said, expressed the opinion on or about 20th May 2010 that SK lacked capacity to enter into marriage. When interviewing SK on 29th April 2010 Mr. Gentleman had asked him what he understood by ‘marriage’ and he says that SK immediately described it as ‘a relationship between two people who share their lives, make plans together and live together’. In his oral evidence Mr. Gentleman said that up and until that question SK had been hesitant and incomplete in his responses, but it was as if the word ‘marriage’ triggered something off, with SK giving his answer (as it seemed to Mr. Gentleman) “...off pat, in a very clearly expressed and well constructed sentence”. During the same interview (29th April 2010) Mr. Gentleman found SK to be disorientated as to day, date, month and year, believing that it was the 1990s. SK told him that he was at the placement ‘to work’ (SK is far too physically disabled to do so) and that he lived
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somewhere else nearby. Asked who visited him, SK listed his brother (CK) his mother (RK) and a friend whom he named (and who did used to visit SK). At first SK did not mention JK but after prompting he said that she too visited him. SK told Mr. Gentleman he thought that JK’s last visit had been some weeks ago, whereas Mr. Gentleman ascertained that it had been a few days previously. Mr. Gentleman spoke of SK having ‘a good social façade, day to day communication skills, and the ability to recognise individuals even if he could not name them’. He expressed himself as being very clear that SK was not in a position to take a decision as to whether he should be taken by JK to her own home for her to look after him there, as was JK’s then wish. These conclusions of Mr. Gentleman about SK’s capacity in May 2010 to take decisions regarding residence and getting married represent the most recent medical expert view as at the time of the marriage in November 2010.
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On 11th March 2011, four months after the wedding, Mr. Gentleman visited SK again and interviewed him. Asked where he was, SK could not say without considerable prompting. He again said he was there to do some work and lived locally, naming his mother’s village. Asked where he lived in that village he said that it was ‘a correction facility’. Mr. Gentleman asked him to remember three objects, a chicken, a car and a tree. They then spoke for a few minutes about other things, after which he asked SK to recall the three words. SK remembered ‘car’ but needed a good deal of prompting to remember ‘tree’ and could not recall ‘chicken’ at all, in spite of considerable prompting. He confabulated (coming up with false suggestions) as to what the words were, demonstrating to Mr. Gentleman that his ability to retain and recall information was severely impaired. When Mr. Gentleman asked SK how he might handle a large sum of money he replied at once that he would ‘invest it wisely and safely’, sounding to Mr. Gentleman like something which SK had been taught or primed to say. Asked about his most frequent visitors, SK identified his brother (CK) and his mother (RK) but no-one else. When, after much unsuccessful encouragement, Mr. Gentleman suggested that JK must be a regular visitor, SK replied that she did come to see him ‘from time to time’. In fact she was visiting him more or less daily. Asked whether SK’s family had been at the wedding (which they had not) SK said vaguely that he thought so, although he had not seen them. In his report dated 28th March 2011 based on that interview, Mr. Gentleman restated the view expressed on 20th May 2010 that SK did not then, nor in March 2011, have capacity to give a valid consent to marriage. He described SK’s ability to retain even simple information and use it as part of a reasoning and decision-making process as ‘very poor’. Cross-examined by Mr. Bagchi, Mr. Gentleman accepted that in April/May 2010 the English case law on the test for capacity to marry had not been drawn to his attention and he acknowledged that Sheffield sets a lower standard than the test in Scotland which he, Mr. Gentleman, is accustomed to apply. Asked to apply to SK as at November 2010 his now-understanding of the ‘Sheffield requirements’ for capacity to marry, Mr. Gentleman replied that he did not think SK had such capacity. He denied having said on the telephone to JK on 27th March 2011 (as JK asserts) that he thought SK had capacity to marry, pointing out that it would have been odd for him to have done so since his report the next day (28th March 2011) specifically stated the opposite. I am satisfied that Mr. Gentleman did not tell JK over the telephone that SK had capacity to marry. JK must have misunderstood something else which Mr. Gentleman said or meant.

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Dr. Grace was SK’s treating clinician for some five months between June and November 2009 and has been so again over the last 13 weeks whilst he has been an in-patient at her hospital for his medication to be adjusted. She and her team also worked with SK at the placement for some nine months from April 2011 until the beginning of 2012. She therefore has a good direct knowledge of SK for a period ending about a year before the marriage and for a period starting five months after it. In her report of November 2012 she mentions comprehensive neuropsychological profiles of SK carried out in, respectively, 2009 and 2012, which show the same pattern of deficits three years apart with no clinically significant improvement or deterioration between the two test dates. These objective tests confirm her own clinical impression that, barring minor fluctuations, SK’s cognitive capacity is the same now as it has been at any point in the last two years. I find that to be the case. Any such fluctuations would not in Dr. Grace’s opinion be such as to bring SK into the capacitous range. She says she has found SK able to keep simple information in mind so as to repeat it, but as having significant difficulty in doing so whilst manipulating it to inform a response. She says that on direct questioning he was able to say that marriage ‘...is being faithful to one person’, but that on further questioning he was unable to elaborate. In her oral evidence, speaking of November 2009, Dr. Grace said that if one suggested that SK do something he would do it. This confirmed the discharge summary from her hospital dated 24th November 2009, that: “...SK is very compliant with other people and is at risk of abuse and exploitation by others, as he would be happy to go anywhere with anybody who said they were a friend of his. He also does not have the capacity to consent to long-term relationships for the above reasons.” Asked what view she would take if SK were to describe his brother CK as ‘his brother’ Dr. Grace replied that ‘...it would be difficult to know if he was ‘parroting’ this, or whether it really brought back childhood memories of a brother relationship’. She was clear that SK’s impairments are not such that he might have capacity one day and not another. She spoke of a ‘good social façade’ and explained that he would be capable of very socially suitable conversations, but with no understanding beneath the surface. She told me that in clinical interviews SK retains information for only between about one and five or ten minutes and that within ten or fifteen minutes of visitors leaving he would have forgotten that they had been there. In cross-examination by Mr. Bagchi Dr. Grace said she could not find in any of her interviews with SK that he understood the contract of marriage, although she accepted that he may not have wanted to talk to her about it. She said that she did not think SK had the capacity to understand that marriage creates, to use the words of Sheffield ‘a relationship of mutual and reciprocal obligations typically involving the sharing of a common home and domestic life’. She said that SK does not ever talk about sharing his life with JK and that nothing has suggested to her, Dr. Grace, that he understands marriage as anything other than sexual faithfulness. Pressed on this she thought that whilst he could perhaps understand the concept of living together, he could not weigh it up so as to take a capacitated decision. She accepted that families sometimes get more out of brain injured individuals than experts, but said that the results are usually ‘within the same ballpark’. Dr. Ruth Kent expressed her view at a professionals meeting on 6th October 2011 when she said: “...I don’t think SK has any idea of the concept of being married ... if someone said to him ‘I am going to marry you’ I think he would say ‘yes’ ...” She stated to the meeting that if SK cannot remember now whether he is married or not then, from her perspective as
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a clinician, he did not have capacity in November 2010. In her oral evidence Dr. Kent described herself as familiar with the MCA 2005 both in her practice and in the medicolegal context. She stated that she did not think SK has capacity to enter into any contract. Asked if this included marriage, she replied ‘any contract with effects on property and finances’. It may be said that Dr. Kent reached her view too much based on the possible effects of marriage on one’s property and finances and I have that possibility in mind.
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Dr. Khouja has prepared a substantial report running to 103 pages into all aspects of SK’s capacity to take a variety of decisions. He interviewed SK on three occasions, 19th June 2011 (seven months after the marriage); 22nd June 2011, three days later; and 18th July 2011, about three weeks later than that. It is difficult fairly to summarise these interviews; yet together with Miss C’s (the Official Solicitor’s representative’s) attendances on SK, they are essential for getting an accurate impression of the depth of SK’s mental and cognitive deficits. I have therefore summarised Dr. Khouja’s and Miss C’s interviews in chronological order in a Schedule which I will annexe to this judgment. On capacity to marry, Dr. Khouja first set out a balance sheet of those factors in favour of SK’s having capacity [E110] and those against [E111]. He noted the inconsistency of SK’s answers in interview about his marital status (see my annexed schedule), SK having stated variously that he was married (whether to JK or to ‘Lillian’); about to be married; divorced; and single. Likewise, as regards his relationship with JK, SK told Dr. Khouja variously that he was married to her; had never married her; was divorced from her; was an ex-partner of hers; was about to marry her; was just friends with her; and was just a sexual partner of hers. At one point, he told Dr. Khouja that in all he had been married about eight times (in fact, three). At E113 Dr. Khouja considered specifically the Sheffield requirements for capacity to take a decision about marriage, commenting separately on each. He concluded that: “...applying case law as it currently stands, SK would appear to have capacity to marry.” He went on to express his concern in ‘unequivocally coming to that conclusion’ in view of SK’s inability to recall reliably that he is married and because, when he does think himself married, it is not necessarily to the right person. The crux of the matter appeared to Dr. Khouja to be whether or not it is a prerequisite for a person to have to remember that he or she is subject to a marriage contract. He said he felt there was a strong imperative for the court to examine in detail the current test as to capacity, so as to determine whether it requires modification or clarification. He did not think that at the time of the marriage SK would have given regard to any of the consequences of the marriage unless aided so to do. He expressed the opinion that SK “...is not able to make decisions free from the influence of others as he is highly reliant on others giving him or reminding him of the facts of his current situation. He is highly vulnerable as to what information he receives and the order it is received in.” Dr. Khouja explained that SK retains best the last information given to him. Asked at the experts meeting on 6th October 2011 whether SK has capacity to marry Dr. Khouja replied: “...as a clinician no he does not. Looking at the MCA principles, again no. However, following the case law, yes he does have capacity.” He described the case law as having ‘fallen down’ in that SK knows what marriage is, having been married twice before, although he cannot remember who he is married to. As to SK’s capacity in
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November 2010, he said that if SK does not have capacity now (October 2011) then he did not have it then. In his oral evidence Dr. Khouja described the profound effect of the brain damage on SK’s memory and on his ability to reason, especially in the abstract. He explained the difficulty which he, Dr. Khouja, had felt under from what he perceived as a tension in that: “...case law is concerned with understanding a contract [of marriage], whilst the MCA is more around how a person makes a decision, which is a different emphasis.” He felt that SK met the criterion of understanding the idea of marriage, although he did not think SK would have understood all the consequences of marriage. He too (like Dr. Grace) mentioned the financial implications of marriage and the possible impact on the individual’s relationships with his or her family. Asked in crossexamination how he thought SK would cope if asked who he would prefer to see as between JK and RK (his mother), Dr. Khouja replied that SK would answer differently depending on how it was put to him. Even if it were put in the same way, he said that one could get a different answer depending on how often it was put. SK would be able to understand segments of the information but not all of it together and would be unable to use and weigh it. He said it was essential for information to be given to SK neutrally. He agreed that the lifestyle changes brought about by marriage would have to be spelt out to SK in order to ensure that he would use the likelihood of those changes within the decision taking process.
30.

When Dr. Khouja was asked to leave aside his concern about SK’s not being able to weigh (i) the financial/property consequences of marriage; and (ii) the impact of marriage on family relationships (i.e. leaving just the so-called Sheffield requirements as to what an individual has to be able to take on board), he concluded that SK ‘...may be able to do so’ (ie take a decision about marriage) but that he would lack the short-term memory to enable an assessor to know what he had actually taken into account. Pressed by myself to place ‘...may be able to do so’ onto a spectrum of probability, Dr. Khouja placed it as 30% likely that SK could retain the necessary Sheffield information so as to use it. He added that one would not be able to stop false beliefs creeping into SK’s thinking (for example that marriage would ‘give him holiday pay’ and give him ‘control over his money’ – see my Schedule). In cross-examination by Mr. Bagchi Dr. Khouja accepted that his figure of 30% was a guess, but he described it as being ‘as educated a guess as I can give’. I have looked at the letter of instruction to Dr. Khouja. It was so constructed as to set out the first three Sections of the MCA 2005 and then, under a separate section headed “Common Law”, as to set out the different tests for capacity in respect of different kinds of decision. Under the sub-heading ‘capacity to marry’ there simply appears this: “The test was reviewed by Sumner J in M –v- B, A and S [2006] 1 FLR 117 who held as follows, adopting the earlier formulation of Munby J: (1) has the individual the capacity to understand the nature of the contract of marriage generally, as opposed to the implications of marriage to a particular individual? (2) Has he the capacity to understand the responsibilities created by the contract of marriage generally? And (3) has he the capacity to give valid consent to marriage generally?”. With the benefit of hindsight, it seems to me that the layout of this letter may unwittingly have helped to lead Dr. Khouja into his original difficulty in coming to a firm conclusion about this case, in that he interpreted it as implying two tests for capacity to marry, one at common law and the other under the MCA 2005; whereas there is but one test. It requires (a) the capacity to ‘retain, use and weigh’ the information set out in Sheffield and (b) the capacity to decide about having sexual
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31.

relations. Dr. Khouja did not feel comfortable in making that liaison between the case law and the statute and so concluded that on one view that SK was capacitated in November 2010. His report was extremely conscientious and thorough and he is not be criticised for having struggled in the way he did. I shall state my conclusion about the medical evidence once having dealt with how the marriage came to take place. E. How the Marriage Came to Take Place. 32. It is not disputed by the Local Authority that JK loves SK. She has demonstrated a remarkable and creditable commitment to him, visiting him more or less daily and championing her perception of his best interests. She has given up her employment as a learning support assistant for sixth form pupils in order to be more available for him. I accept the evidence of SK’s mother (RK) that, by very soon after his accident in November 2008, JK was referring to herself as SK’s partner, albeit that their relationship had ended in August 2008 and that he was incapable of resurrecting it because he was extremely ill. In about December 2008, without informing CK or RK, JK took it upon herself to consult personal injury solicitors with a view to commencing legal proceedings against the bus company whose driver had caused SK’s injuries. By February 2009 JK had bought SK a ring, which I am satisfied on the evidence she must have been placing on his finger at the start of her visits and removing at the end, since the first time it came to the notice of CK and RK was when one of the nurses took them to one side and told them about it. By about February 2009 it is JK’s case that SK had again proposed marriage to her. She has support for this from her daughter KR, which suggests that some conversation(s) about the subject of marriage had taken place between JK and SK, although I am not of the view that a proposal of marriage would have been independently generated then within the mind of SK. His considerable compliance and suggestibility suggests that it is much more likely to have emerged from some conversation or conversations between them in which he was going along with suggestions and possibilities raised by JK. 33. Moving on into 2010, it is JK’s case that further references to marriage and to getting away from the placement were made in conversations which she had with SK and that these continued to be his wishes. JK accepts that at all material times she was aware of Mr. Gentleman’s opinion given in May 2010 that SK lacked the capacity to marry and also that this was universally accepted at the best interests meeting on 18th July 2010, which she attended. At that meeting it had been suggested that SK should have an independent advocate. JK says that her efforts to get the Local Authority to arrange this got nowhere and so she made her own enquiries. She was referred to the Representational Advocacy Unit of the local Citizens Advice Bureau, through which she came to know Mr. R. He has been an advocate for mentally incapacitated individuals for about 16 years and is a former Assistant Director of a Social Services Department. At the time in question he had not had any training on the Mental Capacity Act 2005. He told me that the question of possible marriage did not arise until one of the meetings which he had with SK in or about September 2010, only about two months before the wedding. I cannot accept that recollection, because disclosure of his file reveals a very early note to him from his manager dated 19th August 2010, saying: “...personal injuries – suggest you contact Registrar of Births, Marriages and Deaths and ask if they would accept notice of this

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couple’s intention to marry.” So marriage was on the agenda from the very beginning of Mr. R’s involvement, whatever his (Mr R’s) recollection. 34. Mr. R’s firm opinion is that SK had capacity to enter into a marriage in November 2010. For that reason it is important to consider whether and to what extent he was able to obtain a fair and objective view about the case. At a very early stage the local Headway coordinator emailed him on 23rd August 2010 explaining that he (the co-ordinator) had been supporting JK for nearly two years and had become exasperated with what he saw as the lack of support which she had received from the Local Authority. He said he was pleased that Mr. R was willing ‘to advocate on behalf of her [JK] and SK’. On 27th August 2010 JK emailed Mr. R asserting that CK had not been to see SK for six weeks, commenting ‘caring brother!!’. She described CK as ‘the one who fires the bullets’. On 2nd September 2010 JK emailed Mr. R to ‘share a letter which SK wrote [to his mother, RK] and signed last night’. She then set out the letter in full. It started: “Dear Mam...” and continued “...if it is possible I want to be living with JK who is the biggest love of my life...”. JK accepts that she kept back this letter, and a second one in similar terms, and did not pass them on to RK, as SK had expected her to do. JK’s email to Mr. R continued by saying that she and SK had had a ‘heart to heart’ and had decided that, if his situation had not been moved forward by the end of 2010 and if he was to remain as he was, then they would be ‘saying their goodbyes’. The Official Solicitor submits that this would have been likely, whether intentionally or not, to have put SK under a sense of pressure to go along with JK’s stated wishes and plans; which submission I accept. On 4th September 2010 JK emailed Mr. R to tell him: “...a few things which may prove useful/or not for you.” These included that RK was: “...the matriarch of the household, ruthless, cold and uncaring.” JK said that she (JK) would not trust Ann J (the manager of the placement) as SK was ‘easy cash flow’ for the placement. She described the then social worker as ‘infamous’ and told Mr. R that she (the social worker) had lied to her. She said that one day she would challenge the then social worker for ‘all the blunders she has made’. 35. On 8th September 2010 JK wrote to a Principal Registrar in the relevant county town expressing the wish of SK and herself to marry and disclosing that SK had suffered a brain injury. She referred to the fact that SK had been assessed as lacking capacity to decide about residence. She did not however disclose that he had also been assessed to lack capacity to enter into a marriage (i.e. by Mr. Gentleman in May 2010). On 15th September 2010 JK emailed Mr. R to ask him to accompany herself and SK to the register office when SK would be asked questions, adding that it would be ‘too risky’ for the Registrar to go to the placement to see SK there. She explained in cross-examination that ‘too risky’ meant because the marriage plans would get out. She said (in this email) that a Registrar of Marriages, to whom she had spoken over the telephone, had told her that the Registrar taking the notice of attestation would want to see the report from the brain injury specialist (although this never happened in fact, as Mrs E did not ask to see such report and JK did not volunteer it). JK told Mr. R that it was a question of ‘not raising alarm bells’ when she took SK out to give the notice of attestation of the marriage. 36. On 20th September 2010 JK filled out and sent to the Registrar a provisional booking form for the wedding. She put down her own address as the ‘care of’ address for SK, seemingly to avoid any correspondence going to him at the placement.

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37. On 26th October 2010, as I have said, JK misled SK’s mother to obtain permission to take SK out of the placement and she took him to the local register office. There they met up with Mr. R. They were seen by Mrs E who took their respective notices of intention to marry. Although the official handbook for Registrars states in terms that attestation meetings should be conducted with the proposed spouses separately, both Mrs E and Mr. L (Superintendent Registrar for the County) told me that this was not and is not the practice in the county concerned (although ‘prompting’ is not allowed). So Mrs E saw both SK and JK together, with Mr. R in attendance as SK’s advocate. Asked in evidence why she thought Mr. R was present, she said she thought he was just helping with manoeuvring SK’s wheelchair. The attestation of notice process consists of the couple answering six simple factual questions. The main purpose is for the Registrar to ensure that there are no impediments to the marriage: that is, as regards (i) age; (ii) gender; (iii) consanguinity; or (iv) existing marriage, or civil partnership. Mrs E said in evidence that SK answered these questions well, although slowly. However, when she asked SK his address he gave his mother’s address in Y Village. Mrs E at first wrote that address down on the notice of marriage form. She then noticed it did not correspond with SK’s stated address (JK’s address) put by JK on the booking form. So she struck it through and asked SK again to give his address. He either said words to the effect that he was ‘in care’ or else mentioned the name of the placement, but without giving its full address (Mrs E was not sure which). At this, Mr. R went and got his file of papers from his car and provided Mrs E with SK’s full address. Mrs E therefore wrote it on the form in place of SK’s mother’s address, which she had crossed out. She said that it was when she saw Mr. R’s file that she realised for the first time that SK had brain damage. She told me that before the meeting she had read JK’s above letter to the registration service of 8th September 2010 (which expressly mentions brain damage) but it seems that she had not remembered it. She wrote on the back of one of the records of the marriage: “Case notes seen. SK had head injury in 2008, understands exactly what he was doing.” JK relies on this as showing that Mrs E was satisfied about SK’s capacity in the light of the full facts. In the event, the notice of marriage was duly accepted by Mrs E and notice of the marriage posted for the necessary 15 days so that it could go ahead. 38. The original date set for the wedding was 12th November 2010 and emails show that JK had planned to tell staff at the placement that she would be taking SK out for a birthday tea (it was in fact her birthday); whereas in fact the arrangements were now in place for the marriage. In an email exchange between JK and Mr. R about this, they both put the expression ‘birthday tea’ into single inverted commas, as I have done. In fact, as it turned out, SK’s bladder-stretch operation came to be scheduled for 12th November 2010 and so the wedding was put off for a week until 17th. On 13th November 2010, the day after the operation, JK emailed Mr. R to confirm that the operation had been successful. She explained that SK had signed his own consent form for the anaesthetist and his discharge letter, adding: “...more ammo for us.” 39. As I have said, on 17th November 2010 (the day of the wedding) JK misled RK to obtain RK’s permission to take SK out from the placement. She also misled staff at the placement who, like RK, understood that she was taking him to a local Headway event. When JK and SK arrived at the register office they were seen by Assistant Registrar Miss SJ, who was unaware that SK had sustained brain damage. She checked all the necessary information and found that it tallied with the attestation notice; so she was satisfied that all
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was in order for the marriage. When Mrs E came into the room she asked SK ‘...if he knew what was going on?’ He replied ‘yes, I am getting married’. Asked by CK in crossexamination why she had asked SK that question, Mrs E denied that it was because she thought there was anything wrong and said that she had ‘just wanted to be sure he knew what he was doing’. So the marriage went ahead. It was witnessed by JK’s friend Mrs B and by someone from Headway. One or two others were present. Mrs E told me it was a very happy day. SK and JK appeared to be a loving couple, as is borne out by photographs which I have seen. There were smiles all round, including from SK who said: “I’ve waited for her for a long time.” Mrs E told me it was ‘a lovely, lovely occasion’. As I have said, SK’s family were unaware of it taking place. 40. On 18th November 2010, the day after the wedding, JK emailed Mr. R to say: “All done.” and he emailed back his congratulations. She replied making the point that the staff at the placement had thought she was taking SK to a Headway afternoon. She spoke of SK’s mother not being well: “...so need to tread carefully with her – the brother? Different ballgame.” Mr. R replied that it was now: “...to the next chapter.” He asked: “...how are you fixed to lay out the stage of setting your husband free?” To which JK emailed him back: “...that is exactly what I need/want to do, free him”. On 15th December 2010 JK emailed Mr. R to speak of getting CK displaced as SK’s litigation friend in the ongoing QB proceedings against the bus company, and ‘the sooner the better’. 41. On 24th December 2010 Mr. R emailed JK: “...you’re legally married and that’s that. The SSD can have as many safeguarding meetings as they like, it’s you that cares for SK and not them.” The next day, 25.12.10, JK replied: “...I want my husband home – end of. The longer he’s in there the longer he is at risk – from his family and some staff”. She said: “...CK is a bully but I will see my day with him”. A few days later she emailed Mr. R again to say that she was writing to make various complaints, including a lengthy letter to a local paper. She said that there had been ‘no further threatening phone calls from SS or the rest of the shits’. On 1st January 2011 she emailed Mr. R saying that she wanted SK out of there [the placement] as soon as possible and wanted rid of the social services. She described herself as: “Mrs K – the nicer of the two!” (comparing herself to SK’s mother). On 6th January 2011 JK emailed Mr. R saying: “...I discussed coming home with SK last night, he was fine about it all and ready to leave Alcatraz”. It is a fair inference to draw that it would have been a significant feat for JK to have been able to talk with SK in neutral terms about the relative merits of (i) the placement and (ii) her own home. She went on in her email to Mr. R to speak about redirecting SK’s mail from the placement to her own house and about changing SK’s doctor; also about getting herself made appointee for his benefits. 42. On 14th January 2011, just under two months after the wedding, Margaret Carney visited SK as his new social worker. When she asked him where he lived, he was unable to tell her. When she asked him if he liked living there (at the placement) he told her that he did and that the people were very nice. When she asked him who the most important person was to him, he said his son J. He went on to say that he was: “...going to get married in a few weeks time over the borders to [he gave JK’s first name], my girlfriend”. Asked again by Miss Carney where he lived, SK said: “Apple in the Woods” and he repeated that he was very happy living there. On 18th January 2011 when Miss Carney asked SK again where

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he lived, he gave his mother’s address. He spoke of visiting the gym daily and going out shooting with a 12 bore, neither of which is remotely possible for him. 43. On 25th January 2011 JK wrote to the social services to say that she intended to take SK home for a short break. Confirming this on 27th January 2011 she wrote to Margaret Carney expressing her ongoing concern about visits to SK from CK and RK, saying that they always upset him. On 1st February 2011 JK wrote to the Local Authority to say that she had been married to SK on 17th November 2010 and that he ‘...would be returning to the community and they would be living together’. She noted that CK was currently SK’s appointee and said she wished to be made appointee instead, so as to be able to carry out her duties as his wife and primary carer. On 4th February 2011, as above, JK took SK out from the placement and declined to return him. I have explained that after that weekend the Local Authority went to the Court of Protection and obtained an order requiring him to be returned. 44. On 11th February 2011, Occupational Therapist Lucy Judges interviewed SK. She told him throughout the discussion why the conversation was taking place, namely that she wanted to get a clearer understanding of where he would like to live and what supports he would require. Miss Judges says that at no point was SK able to repeat any of the discussed information back to her and that he had no recollection of having stayed at JK’s property for several nights a few days previously. He did not demonstrate the ability to retain even statements which he had made himself during the discussion. On 16th February 2011 Mr. R emailed to JK a short statement by himself which he had prepared, headed up with the Court of Protection number, explaining that SK wanted to live with JK and that the Local Authority may have been inclined more to the views of RK and CK. The version of this letter, which Mr. R sent to JK, is likely to have been in draft because he asked her: “Attached any good?” He denied in evidence that he was sending it to JK for her approval; but I cannot accept that, as its import is clear. F. Conclusion. 45. It gives me no pleasure to say that JK has come over during this hearing as something of a sorry figure, rather tearful and desperately anxious that her marriage to SK should not be impugned. I do understand that and am not unsympathetic to it. Seen in the round, however, including the material which emerged at the last minute from Mr. R’s file, the evidence shows that she allowed her strong love and sympathy for SK to get the better of what I imagine is her usually more balanced response to things. It is clear from all the above that she rather imposed on SK’s family early on after his accident, sowing the seeds in their mind that she was behaving in a controlling way. When she got in touch with Mr. R in August 2010, she did not give him a neutral or fair overview of the situation; but fed him a partial view about SK’s family implying (even saying) that they were difficult and did not care about SK. That is not how they have come across at this hearing and I find it most unlikely to have been the case. She denigrated to Mr. R the then social worker. She misled Mrs E by omission about SK’s capacity to enter a marriage; and she twice misled RK and staff at the placement about taking SK out of the placement in connection with the wedding. She kept back two letters prior to the wedding which SK wrote to his mother, RK, seemingly because they would have alerted SK’s family to his
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stated feelings for her (JK) so giving them the chance to notify the registration service about the depth of SK’s latent impediments. She agreed in cross-examination that SK would have wanted those letters to go to RK and I cannot accept her evidence that she kept them back from RK to protect him. JK was the only person who knew about both (a) the intended wedding and (b) Mr. Gentleman’s report that SK lacked capacity to marry; but she did not disclose the fact of the impending wedding to those who knew of SK’s lack of capacity to marry, nor the fact of his incapacity to marry to those who knew of the impending wedding. She has not been an accurate reporter, in that her oral evidence was that her relationship with SK’s family had been poor prior to the wedding, whereas in one of her written statements she says in terms that it was “generally good.” I am persuaded, contrary to JK’s own perception, that her strong feelings and sympathy for SK, coupled with SK’s compliance and suggestibility, would have made it likely that he would have gone along with plans and ideas about which she was enthusiastic. I am confident that she would not have been giving him information neutrally, as is regarded as necessary by Dr. Khouja. 46. The fact that the surgeon and anaesthetist took SK’s consent for his bladder-stretch operation a week before the wedding is not persuasive, since the test would have been a different one. JK herself described the surgical procedure concerned as very straightforward and it is not difficult to see how SK’s deceptive ability to converse convincingly would have satisfied the clinicians and nurses that he was able to give informed consents. 47. As for SK’s letters (relied upon by JK) which state his affection for her and which cover various other things implying a greater capacity than the experts consider he has, those letters were written by SK in JK’s presence. He would very probably have reacted to her suggestions and / or have responded to the cues given by her, whether consciously or unconsciously. The letters are not, in my view, such as seriously to put in doubt the opinions of the experts from whom I have heard. 48. The fact that an experienced Registrar, Mrs E, conducted the marriage ceremony (as also relied on by JK) is of no significance in the light of the medical evidence and of the full facts now available to the court. Mrs E must or should have been aware from JK’s letter of 8th September 2010 that SK had brain damage. It emerged at the notice-attestation meeting on 26th October 2010 that he could not give his address fully; added to which it turned out that his address was a neurodisability unit; nor was the address supplied to Mrs E by Mr. R from his file in accordance with the ‘care of’ address (JK’s own address) which JK had previously sent in. With hindsight Mrs E should have queried why SK needed an advocate. She should have seen the parties separately, not together, as that provides an opportunity for a registrar to realise that an individual has memory or comprehension problems which may be masked in the presence of the individual’s partner. Even though Mrs E was not properly informed of the full facts by JK, alarm bells should have been ringing. I suspect they were in fact ringing, although Mrs E denied it, as it is difficult to see why else she asked SK just before the ceremony ‘whether he knew what he was doing’. The fact that Mrs E accepted his answer (‘getting married’) is not, however, surprising, since I do not doubt that on the day and in the actual presence of JK, SK would have been happily convincing that he was fully aware of what was going on.

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49. As for Mr. R I recognise (a) that he was acting as an advocate whose role was to see that SK’s voice was heard and (b) that it was not his role to assess or promote SK’s best interests. This is itself a factor which may unconsciously have affected Mr. R’s mindset and approach. The evidence off his file shows that he became over-involved with JK’s cause, accepting what she said largely at face value. There is a distinct ‘them and us’ quality about their exchanges and Mr. R’s firm loyalty to JK during cross-examination by Mr. O’Brien was plain to see. It is a reasonable inference that, in ascertaining SK’s wishes and feelings, Mr. R would have been fairly uncritical in his mindset, largely accepting things said to him by SK which corresponded to things told him by JK. He chose not to look at the medical report, or reports, which JK told him she had. He was conditioned by JK to approach the case with a mindset that the Local Authority were being unreasonable and that SK’s family were uncaring about SK. When accepting SK’s saying he wished to live with JK, Mr. R never asked if he would like to live with his mother. He kept not a single note or record of his conversations with SK. This makes it impossible to assess those conversations, or the extent to which his reports in the witness box of things said to him by SK were (or were not) accurately and reliably interpreted and remembered. Although he spoke of the need for ‘open questions’, he actually gave examples of his having asked SK quite leading questions, e.g. his asking SK whether he (SK) had spoken to JK about their (SK and Mr. R’s) previous conversation about marriage; and his asking SK, on the subject of keeping the marriage secret, ‘whether he, SK, meant secret from his (SK’s) family?’ In a case involving an individual with such severe brain damage as SK, the nuances of question and answer are crucial to determining afterwards whether the questioner inadvertently encouraged particular answers, thereby feeding the questioner’s expectations of what the other person wanted to put across. In the result, I am not satisfied that I can attach any significant weight to Mr. R’s evidence that SK was expressing an independent wish of his own to get married, nor a real and independent wish that his (SK’s) family should not be told of it. There are many times in the papers when the first people SK has mentioned have been his family and when he has not remembered JK at all without considerable prompting. When interviewed by Miss C on 4th October 2011, SK specifically said that he wanted his mother and brother at his wedding (which he believed at that time still to be in the future) and RK told me that she had been to his previous two weddings. SK also told Miss C that he likes his mother visiting him the most. SK is trusting, compliant and suggestible. I find it to be significantly unlikely that, free of conscious or unconscious influence from JK, he would have said he wanted his family to be kept in ignorance of his wedding. Indeed, since SK functions largely in the ‘here and now’ (with his wishes and feelings variable according to the circumstances and the manner in which he is asked questions and by whom) it is, I suspect, difficult ever to be truly confident as to his wishes and feelings. 50. As to the evidence of Mrs B, I do not doubt her bona fides in giving the court her opinion that SK knew what he was doing on 17th November 2010, nor that he wanted to marry JK on that day and was happy to have done so. However, such is his deceptive social veneer and his ability to cope with straightforward conversations, including through very convincing confabulation (spontaneous narrative reports of events that never happened, involving the creation of false memories, perceptions or beliefs) that it is unsurprising that Mrs B and KR would have been unaware of the depth of his cognitive impairment. They did not know of the opinion of Mr. Gentleman that SK lacked capacity to enter into marriage. I entirely accept Mrs B’s evidence, and that of Mrs E, that the wedding day was
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a very happy one and that to their perception of the occasion SK knew what he was doing; but I cannot accept that he did know so, save on the most superficial level. It is not just the words of the ceremony which have to be understood. 51. As regards the expert evidence, Dr. Khouja’s original opinion that on the case law SK had capacity to enter marriage in November 2010 was reviewed by him in his oral evidence, once he understood more about the correlation of the case law and the statute. His abovementioned estimation of 30% amounts to an opinion that on the balance of probabilities SK did not have capacity to enter marriage in November 2010. This is broadly supported by Dr. Grace, Mr. Gentleman and Dr. Kent, even if they may in modest respects have unwittingly taken into account some factors which may not tally completely with the Sheffield approach (something for which they are not to be criticised). On the totality of the medical evidence and considering it alongside the factual evidence, as already discussed, I am completely satisfied that on 17th November 2010 SK did not have capacity freely to decide to enter into a marriage. Even if, and accepting, that he understood on an intellectual level the concept of a marriage and the status of being husband and wife (which is in any event doubtful) he was, in my judgment, disabled from adequately using or weighing that information (a) by the fact that the choice would not have been put to him neutrally and (b) by his inability, as shown by subsequent interviews (his condition having remained much the same throughout) to know or remember, except for extremely short periods of time, his own marital status and/or the identity of his spouse. The reference to the retention of information for ‘a short period’ in S3(3) of the Act cannot seriously be interpreted to mean, in the context of the lifetime commitment of marriage, for so short a period as SK is able to recall whether he is married at all, or reliably (when he does remember) to whom. That evidence from interviews with SK to which I have just referred, admittedly relates to after the marriage; but it is clearly also a reliable indicator of SK’s ability to retain information before it. Further, as Miss Butler-Cole submits, SK’s thinking was distorted by false beliefs about marriage (for example about his getting ‘holiday pay’ and being ‘able to control’ his money) such that any weighing up by him of his wishes about marriage is likely to have been on false premises. 52. For all these reasons, I have concluded without doubt that the Local Authority has made out its case and rebutted the presumption of capacity. In so doing I accept the closing written submissions of Miss Butler-Cole dated 18th November 2012 (leaving aside the references to the impact of marriage on finances and property and on existing family relationships) and of Mr. O’Brien dated 21st November 2012. I shall, therefore, declare that on 17th November 2010 SK lacked the capacity to enter into a marriage. The Official Solicitor needs time to reflect on this decision and to consider SK’s best interests, as he is bound to do by S1(5) of the Act. There will then be a further hearing before me as to how next to proceed. G. The Registrar’s Handbook. 53. This case has thrown up the role of Registrars and of the registration service when a borderline-incapacitated individual presents wanting to marry. It is not a Registrar’s job to assess mental capacity and plainly he or she would be wholly unqualified to do so. If there is doubt in the Registrar’s mind when an individual responds to the standard questions put
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at the notice-attestation meeting, then the procedure is for the doubt to be referred upwards, first to the local Superintendent Registrar and thereafter, if necessary, to the Office of the Registrar General. In a really tricky case, this could end up with a decision to call for a psychiatric report into capacity. That said, the standard handbook provided to Registrars presently says nothing about the need for mental capacity to contract a marriage and does not mention the Mental Capacity Act 2005. It may be that those responsible for the handbook would wish to consider the advisability of incorporating a paragraph on this, perhaps referring to the basic S3 requirements and summarising the information necessary to be understood and weighed up, with a note on what to do where an individual’s mental capacity to marry may be in real doubt. The experience of this case also suggests that greater emphasis should be laid on the need for the aspiring spouses to be seen separately, not together as happened here. _____________

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