Source: All England Reporter
Publisher Citation: [2013] All ER (D) 71 (May)
Neutral Citation: [2013] EWCA Civ 478
Court: Court of Appeal, Civil Division
Judge:

Richards, McFarlane and Lewison LJJ

Representation Paul Bowen QC and Joseph O'Brien (instructed by Langleys Solicitors LLP) for P.
  Jonathan Butler and Eliza Sharron (instructed by Switalskis) for N.
  Conrad Hallin for the authority.
Judgment Dates: 1 May 2013

Catchwords

Mental health - Persons who lack capacity - Mental capacity - Learning difficulties - Individual with learning difficulties cohabiting with partner - Partner being convicted of serious sexual offences against former wives - Individual marrying partner during term of imprisonment - Partner being released on licence - Local authority having concerns about individual cohabiting with husband - Authority applying for determination of whether individual having capacity to determine to cohabit with husband following convictions for sexual offences - Judge finding individual lacking capacity - Individual appealing - Whether judge erring - , , .

The Case

Mental health Persons who lack capacity. The Court of Appeal, Civil Division, held that, whilst the Court of Protection had posed the correct test, under the to the question of whether a woman with learning difficulties had had capacity to make a decision whether to live with her husband in circumstances where her husband had been convicted of serious sexual offences against his former wives, the court had erred in its approach to the circumstances of the case. In circumstances where the individual concerned had had capacity to marry, she had to be taken to have capacity to make a decision to perform the terms of her marriage contract. Clear and cogent evidence would be required for the court to determine that she had lacked the capacity to cohabit with her husband, and there was no such evidence in the instant case.

Practice Areas

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