Roman Kubiak looks at the recent Court of Protection decision in Re BU [2021] EWCOP54, an application brought by BU’s family in an effort to protect a vulnerable person from contacting a man who they feared would force her to marry him.
Re BU [2021] EWCOP54
The question of a person’s capacity to enter into personal and sexual relations and to marry, the impact which the latter has on the disposition of a person’s estate on death and the extent to which either relatives or the court can and should intervene, are issues which have come to the fore particularly over the past few years.
Re BU follows on from a number of key decisions including Sheffield City Council v. E & Anor [2004] EWHC 2808 (Fam), in which the High Court held that it had no jurisdiction to determine whether marriage or otherwise was in a person’s best interests and went on to suggest that the test for capacity to marry should not be set too high, “lest it operate as an unfair, unnecessary and indeed discriminatory bar”.
Additionally, in EJ v. SD [2017] EWCOP 32, the Court of Protection confirmed that a person should be able to “understand, retain, use and weigh information as to the reasonably foreseeable financial consequences of a marriage, including that the marriage would automatically revoke the person’s will”.
The decision of Mrs Justice Roberts in Re BU further highlights the court’s role in protecting vulnerable people from possible exploitation particularly in the context of personal relationships.
At the time of writing, BU is a 70-year-old woman who suffers with vascular dementia. She has assets in excess of £1.3 million.
In 2016 she struck up a friendship with a man, NC, who had previous multiple convictions for fraud, theft, blackmail and firearm offences, some of which resulted in custodial sentences.
BU’s family asserted that, over time, NC has exerted increasing control and influence over BU’s personal life and finances, including transferring cash, a boat, a caravan, a pick-up truck and a van to him.
On discovering this, BU’s daughter, WU, and extended family sought to discourage BU’s relationship with NC but, sadly, and in a feature which is perhaps all too common, this caused BU to distance herself from the family and become closer to NC.
In previous proceedings the court granted an injunction preventing NC from contacting BU, but this did not deter him, and he later admitted to violating the injunction on no less than 40 occasions.
WU therefore brought fresh proceedings seeking declarations under sections 15 and 16 of the Mental Capacity Act 2005, preventing contact between BU and NC, and an order preventing BU and NC from marrying or entering into a civil partnership pursuant to section 63A Family Law Act 1996, otherwise known as a “Forced Marriage Protection Order”.
In hearing the application, Mrs Justice Roberts had to consider the question of BU’s capacity alongside allegations of undue influence and coercive control by NC.
Considering detailed reports not only from a consultant psychiatrist and a consultant psychologist, but also from the court appointed deputy and the local council, Mrs Justice Roberts made an order in favour of the applicant, WU, that the no contact injunction against NC be replaced with a fresh order to be in place until the court decided to remove it.
In addition, despite expert opinion that BU still retained sufficient capacity to make decisions on marriage, the judge issued a separate injunction prohibiting NC from entering into marriage or a civil partnership with BU without first obtaining permission from the court.
The judge was sympathetic to BU’s own desires, even if they were borne from pressure exerted upon her and when she lacked capacity. The judge also noted that the relief sought would likely cause distress to BU.
However, given BU’s dementia and the court’s finding that NC had exerted a degree of coercive control and undue influence on BU, the court was obliged to consider BU’s overall wellbeing and best interests in granting the orders sought.
Mrs Justice Roberts went one step further and suggested that BU should perhaps seek therapy to help her understand how NC had been taking advantage of her.
This case highlights the often difficult and sensitive issues with which the Court of Protection is regularly tasked in resolving, balancing the need to ensure a person’s best interests while also seeking to respect their individual freedom, autonomy and human rights.
It is, though, also a good example of the ways in which the court can be called upon by those either tasked with the care of a personal lacking capacity or loved ones to assist in cases of concern.
This case follows the Court of Appeal decision of Re K (Secretary of State for Justice and another intervening) [2020] EWCA Civ 190 in which the court held that before it can intervene to prevent a potential marriage it must be satisfied that there is a real and immediate risk of an individual suffering inhuman or degrading treatment, in contravention of Article 3 of the European Convention of Human Rights.
