The council sought an order to prevent E, a patient from contracting a marriage which it considered unwise. As a preliminary issue the parties sought guidance as to the questions to be put to the expert as to capacity.
Held: The woman suffered disabillities including functioning at the equivalent age of 13. The man had a serious record of sexual violence. Nevertheless the issue on whether she could marry was only whether she understood the marriage contract and its nature and duties. Whether others would make the same choice in wisdom was not the issue. The doctrine of necessity has no place in relation to marriage, which depended exclusively upon consent. A persons’ best interests were not at issue. Questions of capacity are always issue specific.
Munby J said: ‘An adult either has capacity [in relation to a particular matter] or he does not. If he does, then, at least in relation to that issue, the Family Division cannot exercise its inherent declaratory jurisdiction, because it is fundamental that this jurisdiction can be exercised only in relation to those who lack the relevant capacity.’ and ‘There is, so far as I can see, no hint in any of the cases on the point – and I have gone through them all – that the question of capacity to marry has ever been considered by reference to a person’s ability to understand or evaluate the characteristics of some particular spouse or intended spouse. In all the cases, as we have seen, the question has always been formulated in a general and non-specific form: Is there capacity to understand the nature of the contract of marriage?’ and ‘In relation to her marriage the only question for the court is whether E has capacity to marry. The court is not concerned – has no jurisdiction – to consider whether it is in E’s best interests to marry or to marry S. The court is concerned with her capacity to marry, not with the wisdom of her marriage in general or her marriage to S in particular.’
Munby J
Times 20-Jan-2005, [2005] 2 WLR 953, [2004] EWHC 2808 (Fam), [2005] 1 FLR 965
Bailii
England and Wales
Citing:
Cited – In re Estate of Park (deceased), Park v Park CA 2-Jan-1953
The deceased had remarried. His beneficiaries asserted that he had lacked capacity and that the marriage was ineffective.
Held: The test of capacity to marry is whether he or she was capable of understanding the nature of the contract, was . .
Cited – Masterman-Lister v Brutton and Co, Jewell and Home Counties Dairies (No 1) CA 19-Dec-2002
Capacity for Litigation
The claimant appealed against dismissal of his claims. He had earlier settled a claim for damages, but now sought to re-open it, and to claim in negligence against his former solicitors, saying that he had not had sufficient mental capacity at the . .
Cited – Durham v Durham, Hunter v Edney (Orse Hunter), Cannon v Smalley (Orse Cannon) 1885
The burden of establishing that a party to a marriage had lacked capacity through insanity, lay on the party making the assertion. The court is to decide whether the respondent was capable of understanding the nature of the contract, and the duties . .
Distinguished – In re MB (Medical Treatment) CA 26-Mar-1997
The patient was due to deliver a child. A delivery by cesarean section was necessary, but the mother had a great fear of needles, and despite consenting to the operation, refused the necessary consent to anesthesia in any workable form.
Held: . .
Cited – In Re S (Adult Patient: Sterilisation) CA 26-May-2000
The court should decide what is in the best interests of a patient where she was unable to give consent herself. The test of whether what was proposed was within the range of what reasonable and competent medical practitioners might propose, got the . .
Cited by:
Cited – E v Channel Four, News International Ltd and St Helens Borough Council FD 1-Jun-2005
The applicant sought an order restraining publication by the defendants of material, saying she did not have capacity to consent to the publication. She suffered a multiple personality disorder. She did herself however clearly wish the film to be . .
Cited – D Borough Council v AB CoP 28-Jan-2011
The court was asked whether A, an adult male with learning disability had capacity to consent to sexual relations, and in particular what test was to be applied. . .
Cited – PC and Another v City of York Council CA 1-May-2013
It had been decided that PC, a 43 year old woman, had capacity to marry, but the LA now argued that she did not have the capacity to decide to live with her partner, a man who had old convictions for serious sexual assault.
Held: Decisions as . .
Cited – AMDC v AG and Another CoP 18-Nov-2020
Guidance for Expert Witnesses on Capacity
The court was asked as to the preparation and use of expert reports as to the capacity of a patient litigant.
Held: Poole J discussed what was need of expert witness in such cases: ‘it will benefit the court if the expert bears in mind the . .
Applied – PH v A Local Authority CoP 30-Jun-2011
The Court was asked whether PH, a forty-nine year old man, suffering from Huntingdon’s Disease had capacity to make decisions about his residence, care and treatment. . .
Lists of cited by and citing cases may be incomplete.
Family, Health
Leading Case
Updated: 10 November 2021; Ref: scu.231165
