A recent decision from the Court of Protection concerning decisions about contact restrictions and marriage.
The case in brief
P (BU) is a wealthy woman in her 70s with vascular dementia and a degree of cognitive impairment. She developed a romantic relationship with a man, NC, over several years. During those years, NC, who had a history of alleged and proven extortion and coercion, moved in to BU’s home and gained influence over all aspects of her life, including her medical care and her finances.
Despite this concerning course of events, BU had grown extremely close to NC and the two were due to enter into a civil partnership in the future. BU’s perception of her relationship with NC was wholly positive and she saw her relationship with NC as the sole thing giving her life joy and meaning. NC also saw their relationship as one of two equals, describing BU as being a strong character capable of making her own decisions.
BU’s daughter WU (the applicant), perceived the relationship differently, seeing it as characterised by NC having control over BU who was vulnerable. She was very concerned about the risk NC presented to her mother if the relationship were allowed to continue.
WU applied to the Court of Protection to seek orders to prevent BU having contact with NC. As a result of her application, WU secured interim orders to prevent NC making decisions about BU’s finances or having contact with her. Despite knowing about the interim orders, NC made contact with BU over 40 times after they had been issued.
At the final hearing, WU was seeking a declaration pursuant to section15 Mental Capacity Act 2005 that BU lacked capacity to make decisions about contact with NC and a corresponding order pursuant to section 16 to prevent further contact between NC and BU. WU sought a further order to prevent BU from marrying or entering into a civil partnership with NC or else a forced marriage protection order pursuant to section 63 of the Family Law Act 1996 (FLA).
Finding that BU lacked capacity to make decisions about her contact with NC, Mrs Justice Roberts determined that it was not in BU’s best interests to continue to have contact with NC. This despite recognising that NC had become a central part of BU’s life, that BU’s expressed wish was that she should be allowed to continue to have contact with NC and that having NC in her life clearly brought BU genuine joy.
Mrs Justice Roberts found that BU’s wishes were not aligned with her best interests. An important basis for the determination was her finding that NC’s behaviour towards BU could properly be characterised as coercive and controlling and that BU was unable to comprehend this. Expert evidence that BU had formed a ‘trauma bond’ with NC was particularly material to Mrs Justice Robert’s decision. This, coupled with BU’s intense loneliness, she concluded, had ultimately lead BU to become a victim of a coercive relationship where her views, including on the relationship itself, were unduly influenced by NC.
On the issue of marriage, Mrs Justice Roberts applied the test set out in London Borough of Southwark v KA & Ors and, reminded by the judgment in that case that the threshold for capacity as to whether to marry is a low one, concluded that BU did indeed have capacity to decide to marry. That being the case, Mrs Justice Roberts was satisfied that restrictions on contact alone were not enough to protect BU from NC’s coercion and control and, so she made an order under the court’s inherent jurisdiction to prevent NC and BU entering into a civil partnership. She also made a forced marriage protection order pursuant to section 63 FLA. The orders were to be reviewed after 12 months.
This was an exceptionally difficult case, with Mrs Justice Roberts fully aware of the impact her decision would have for BU. It is illustrative of the complexities that arise where there is alleged coercion and control and where restrictions on contact are contrary to the expressed wishes of P.
Perhaps most useful for those making decisions will be the reminder of what constitutes relevant information for a decision as to whether P has capacity to decide matters of contact, originally established in LBX v K, L and M and which are as follows:
- With whom will that person be having contact?
- The nature of the relationship between them.
- What will be the nature of the contact ? Will such contact take place in a public or private setting? Will overnight stays be involved? Will it involve the presence of a carer or support worker?
- What are the positive and negative aspects of that contact? In this context, unless demonstrably false, any assessment should include not only an individual's current experiences but also any negative or unpleasant aspects of past experiences during contact with that individual.
- The assessment needs to include consideration of what constitutes a family relationship and that such relationships are different from other categories of contact.
- If the person with whom contact is under consideration has previous criminal convictions or poses any sort of risk to the protected party, the assessment must include an evaluation of present or future risk. If that risk exists, or is likely to exist in future, a decision has to be made whether it is safe to run that risk.
Those making decisions should consider this “relevant information” central to a valid capacity assessment in respect of contact and note that the Court will expect to see evidence that this information has informed the assessment where an order to restrict contact is being sought.
The case also serves as a reminder that penal notices may be attached to orders to restrict contact in circumstances where they may otherwise be wilfully flouted by those affected.
If you require help with any of the issues discussed in this case or any other matters concerning mental capacity, please do not hesitate to get in touch with our team.
Written by Samuel Lindsay and Libby McKane