Secondly, she must be taken to have capacity to understand the obligations of marriage. The first is that PC must be taken to have had capacity to marry in 2006. In coming to dealing with the question of capacity on that central question I start by acknowledging three things. Although that is a narrow issue it is, in my judgment, a seriously justiciable issue to which the court should give its proper attention and make a decision.Ģ1. All the other issues raised, care, residence and contact, are peripheral, save insofar as they bear on the question of the resumption of the long interrupted cohabitation of PC and NC. Thus, the question of capacity is important. The question in this case surely is this: should PC take up married life with NC now that, in terms of imprisonment and licence, he is free to do so? It is a decision which any wife in her position would be required to take and it is a decision that does not admit of only one answer. It follows that in my judgment, rather than making a general finding about whether the question to be considered should or should not involve in it any particular individual, my task, as I understand it, is to articulate the question actually under discussion in the case and to apply the statutory capacity test to that decision. In my judgment, given the presumption of capacity in section 1(2) this may indeed be very necessary to prevent the powers of the Court of Protection, which can be both invasive and draconian, being defined or exercised more widely than is strictly necessary in each particular case.Ģ0. Accordingly, I see no reason why in the construction of the statute in any particular case the question of capacity should not arise in relation to an individual or in relation to specific decision making relating to a specific person. The hysteric resisting treatment in the course of delivering a child is an example from my own experience. There will be cases, for example, in relation to medical treatment where the attention is centred not only on a specific treatment or action but on the specific circumstances prevailing at the time of the person whose decision making capacity is in question. Can this person make any decision as to residence or contact or care by reason of, for example, their dementia? Or does this person have any capacity to consent to sexual relations by reason of an impairment of mind which appears to withdraw all the usual restraints that are in place? Such generic assessments will often by necessary in order to devise effective protective measures for the benefit of the protected person, but it will not always be so. Sometimes that will most certainly be generic. It is the capacity to take a specific decision, or a decision of a specific nature, with which the Act is concerned. However, it seems to me that what the statute requires is the fixing of attention upon the actual decision in hand. This is in part derived from the terms of section 17 of the Act. There has been considerable debate as to whether the issue of capacity to decide on contact should or should not be person specific, that is to say whether it should or should not in this case focus on NC. Given her learning disability, her unwillingness to examine the issue of his guilt and her overwhelming desire to re-establish that relationship, and that that derives in significant part from her impairment, I accept that there may be evidence from which the court could conclude that she lacks capacity to decide on matters relating to her relationship with NC.' His Lordship proceeded to analyse the capacity issue as follows: However, the issue was 'not whether she is right in her rejection of his guilt, that is a classic and all too familiar unwise decision, but whether she was capable of the steps necessary to reach such a conclusion. Whilst the central issue concerned the capacity of a married woman to decide whether or not she was going to live with her husband, the appeal raised more general issues relating to the character of decisions in respect of which capacity is to be assessed.Īt first instance, Hedley J had accepted that the husband's guilt was potentially a highly relevant factor to the capacity assessment. Both had a unified wish to resume married life together and the local authority issued proceedings in anticipation of his release on licence. It was not in dispute that, were the couple to resume cohabitation, he would pose a serious risk to her, although there was no evidence that serious harm had ever been suffered. She had always maintained that he was innocent and blamed the complainants - his previous wives - for framing him. He had always denied his guilt and so never received any sexual offenders' treatment. Summary: In 2006 PC married NC whilst he was serving a 13-year term of imprisonment for serious sexual offences.
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