RS, Re (Forced Marriage Protection Order)

Factual and Procedural Background

The case concerns an individual, referred to as RS, aged 25, who has intellectual disability and autism spectrum disorder, resulting in behavioural and emotional difficulties. RS lives with his mother (the first respondent) and six of his seven siblings. The proceedings began with an application on 14th November 2014 by a local authority (Luton Borough Council) seeking a Forced Marriage Protection Order (FMPO) to prevent an anticipated marriage. However, it was later revealed that a marriage had already taken place in Pakistan on 23rd October 2014.

On 29th April 2015, the High Court reconstituted and continued the proceedings under its inherent jurisdiction. The court granted permission for the parties to jointly instruct a Consultant Psychiatrist to assess RS's capacity to litigate, consent to marriage, and consent to sexual relations, as well as to recommend steps to assist RS's understanding if capacity was lacking.

It was established that RS lacks the capacity to litigate, and since April 2015 he has been represented by the Official Solicitor. The woman with whom RS married (referred to as W) was informed of the proceedings, filed statements, and gave evidence remotely.

The key questions for the hearing were whether RS had the mental capacity to marry at the time of the marriage and, if not, whether the court should declare the marriage not recognised in England and Wales, potentially leading to annulment proceedings.

The parties agreed on a detailed statement of issues regarding RS's capacity to consent to marriage and sexual relations, possible steps to assist RS's understanding, and whether the court should exercise discretion to declare the marriage non-recognised. Some issues were agreed to be deferred or unnecessary to consider at this hearing.

Background evidence detailed RS's history of behavioural difficulties, institutionalisation, and subsequent return to live with his family. Various family members and medical professionals provided evidence describing RS's abilities, limitations, and personality traits. The family expressed strong affection and hope for RS's potential, though medical assessments indicated moderate learning disability and significant challenges in abstract understanding and social interaction.

Legal Issues Presented

1. Whether RS had the mental capacity to consent to marriage at the time of the marriage in October 2014.
2. If RS lacked capacity to marry, whether the court should exercise its inherent jurisdiction to declare the marriage not recognised as valid in England and Wales.
3. Whether RS has capacity to consent to sexual relations.
4. Whether steps can or should be taken to assist RS in understanding sexual relations and marriage.
5. Whether such steps, if undertaken, would affect the court's discretion regarding recognition of the marriage.

Arguments of the Parties

Local Authority's Arguments

• The marriage should not be recognised in England and Wales because RS lacked capacity to consent to marriage and sexual relations.
• Public policy supports non-recognition to prevent abusive or exploitative marriages involving individuals lacking capacity.
• RS's lack of capacity means the marriage could not lawfully have been conducted in England and Wales, despite validity in Pakistan.
• Legal framework, including the Anti-social Behaviour Crime and Policing Act 2014 and Sexual Offences Act 2003, emphasises the importance of free and full consent.
• RS is exposed to legal obligations and consequences of marriage which he does not understand or voluntarily assume.

Family's Arguments

• The family, particularly RS's uncle, argued that RS has capacity and that the marriage should be given a chance.
• They emphasized RS's strengths, improvements, and practical skills, suggesting he could lead a normal life and be a good husband.
• They expressed emotional and sincere belief in RS's potential and the validity of the marriage.

Official Solicitor's Position

• Focused on the issue of recognition of the marriage rather than its validity.
• Supported the local authority's submissions regarding RS's lack of capacity and the implications for recognition.

Mother's Counsel's Argument

• Emphasized the decision-specific nature of capacity assessments.
• Suggested potential for RS to gain capacity, including through sex education, though this was ultimately doubted by the court.
• Argued against the exercise of discretion to declare non-recognition even if RS lacked capacity.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully examined the medical and familial evidence regarding RS's intellectual disability and autism, concluding that RS operates at a practical level equivalent to a young child and has significant difficulty understanding abstract concepts. The court found that RS lacks capacity to consent to sexual relations, as he cannot comprehend or weigh the risks and consequences, including infection and pregnancy, despite some limited factual knowledge.

Regarding capacity to marry, the court applied established legal principles requiring understanding of the nature of marriage and the mutual duties it entails. It concluded that RS does not grasp the roles or responsibilities of marriage, including concepts such as fidelity and reciprocity, which are essential components of the marital contract.

The court considered whether RS could gain capacity through education or other steps but found this unlikely due to his cognitive limitations and autism-related difficulties. While acknowledging the family's sincere hopes, the court found their view overly optimistic and inconsistent with the expert evidence.

The court also addressed the legal framework governing recognition of foreign marriages and the limits of its jurisdiction, noting that the Family Law Act 1996 does not permit annulment through forced marriage proceedings but allows for declaration of non-recognition under inherent jurisdiction.

Public policy considerations, including the prevention of abusive or exploitative marriages and the protection of individuals lacking capacity, weighed heavily in favour of non-recognition. The court highlighted the criminal law provisions that criminalize causing a person lacking capacity to enter into marriage or sexual relations without consent.

Balancing the rights to autonomy and family life against the absence of capacity, the court concluded that the marriage could not be recognised as valid in England and Wales, as RS lacks the necessary capacity to consent, thus undermining the essential contractual basis of marriage.

Holding and Implications

The court issued a declaration that the marriage between RS and W is not recognised as valid in England and Wales due to RS's lack of capacity to consent to both marriage and sexual relations at the time of the marriage.

The direct effect of this decision is that RS's marriage will not be legally recognised in England and Wales, which may lead to formal annulment proceedings initiated by the local authority under the Mental Capacity Act 2005 or other applicable laws. The decision does not set new legal precedent but applies and reinforces existing principles concerning capacity, consent, and recognition of foreign marriages. The court acknowledged the delicate balance between respecting individual autonomy and protecting vulnerable persons from exploitation, concluding that capacity is an intrinsic and indivisible element of valid marital consent.