A complex and very personal cocktail of capacity and vulnerability – Baker J on the case

[I am happy to host here a guest post by Zena Soormally, Associate Solicitor at Simpson Millar and Andrew Bagchi QC of 1 Garden Court Chambers, on their recent case of AB v HT v London Borough of Hammersmith and Fulham v M v MS [2018] EWCOP 2.]

What Happened In This Case?

The judgment deals with capacity to make decisions as to residence, care, and contact, to make decisions to marry and to have sexual relations. It sets out the detailed findings of fact made in relation to M, following a lengthy contested hearing. The case, and complex fact finding analysis arising therein, related to a dispute concerning M’s past, present and future. Ultimately, what has been determined is that M lacks capacity in all areas in question, at present, and that no declarations could be made (and/or they were no longer sought at the time of the final hearing) about her capacity in the past. A number of important findings have also been made that are relevant and/or will be relevant, to best interests decisions for M in the future.

In total, 16 witnesses gave oral evidence, including Dr Andrews, Dr Grace, Dr O’Halloran, Professor Rehman, an expert in Islamic law, the Imam who had conducted a ceremony in August 2013, six witnesses who had also attended the ceremony, one social worker, one community psychiatric nurse, AB, HT and MS.

Given the nature of the facts sought to be found by the parties, the evidence of the key parties, AB, HT and MS, was of primary importance in the court’s decision making. Commentary is provided by Mr Justice Baker at paragraphs 84-98 about the way he viewed their oral evidence.

While not amending the current legal position in relation to the assessment of capacity or consideration of best interests, the judgment helpfully summarises a number of issues of law and procedure in the Court of Protection, which may be of interest to practitioners and those involved in the care and treatment of adults who lack capacity.

The case, as one would expect, was heard in public but subject to the provisions of transparency orders protecting the identity and location of M and her family.

Background To The Case

In brief summary of the background, M is a 37 year old lady born in Somalia who had resided in the UK since 2004. Following a violent assault in 2005, she suffered a traumatising brain injury. She had a history of schizophrenia and/or psychotic depression in addition. Following admission and treatment under the Mental Health Act 1983 (‘the MHA’) there were concerns by staff arising from her behaviour and accusations she made against her father, AB, and women from the local Muslim community centre. However, the then local authority safeguarding team concluded that there was no evidence that she was being abused by her father. She made a further allegation against her father in 2011, but she later said that the alleged incident had not happened. By 2012, a psychiatrist described her as coherent but noted ongoing hallucinations. In February 2013 it was concluded that she was mentally stable and she was discharged back to the care of her GP.

On 15 August 2013, M took part in a religious marriage ceremony with MS, the fourth respondent in these proceedings. The circumstances of the ceremony formed the basis of a large element of the proceedings. For the next few weeks, M lived with her father and MS. In October 2013, M underwent further surgery for her head injury and at or around the same time, her father, AB, travelled to Switzerland leaving M at his home with MS.

Shortly thereafter, on 11 November 2013, HT, M’s aunt, visited M at her home. HT’s case was that the house was dirty, M was in poor health, and HT said that she witnessed MS speaking aggressively towards M. HT said that M asked her not to leave without her and HT therefore decided to take her to London with her. HT believed the ceremony that took place in August to have been a forced marriage. She reported those concerns and allegations to the police.

HT and M were then in London and, some weeks later, M was again admitted under the MHA, this time under section 2. She had disordered thoughts and incoherent speech, was agitated, irritable, and unaware of the risks caused by her wandering behaviour. She was again diagnosed as suffering from hebephrenic schizophrenia and treated with antipsychotic medication. Gradually her mental state improved and her symptoms diminished. In July of the next year, she was discharged into the community into the care of HT and a CPN.

Some months later, in October, which was nearly a year after M had moved to London, M’s father, AB, made a complaint to the police that M had been kidnapped by HT for financial gain. A month later, a social worker for the second respondent local authority undertook a capacity assessment and concluded that M did not have capacity to make decisions about where she should live.

In April 2015, 17 months after M had moved to London, AB filed an application in the Court of Protection asking the court to decide whether M was capable of deciding where she should live, seeking an order that she should reside with him and an order that he be appointed her personal welfare deputy, to make decisions in respect of where she should live and as to her medical treatment, in addition to the property and affairs deputyship he already held.

Various hearings took place and orders were made for expert evidence as to M’s capacity, as set out in the judgment. During that time, HT and the LBHF were joined as parties and, a short while later, MS was also joined as a party. AB’s deputyship over M’s property and affairs were suspended pending further orders.

M’s mental health deteriorated and, in November 2015, she was readmitted to hospital.

At the hearing in July 2017 detailed argument and expert evidence (including from an Islamic Expert) was heard by Mr Justice Baker on specific facts alleged by one or other party, as relevant to the decisions the court was being asked to make in M’s best interests, in addition to expert evidence and argument as to M’s historic capacity, her current capacity, and her future capacity.

Declarations as to capacity:

As the judgment, at 103 pages, is incredibly, although necessary, lengthy, and provides a comprehensive summary of the analysis resulting in all findings made by Mr Justice Baker, as relates to capacity and the findings of fact, below is a basic summary of the key findings made:

Historic Capacity (Para 48)

“I specifically agree with Mr Bagchi’s [counsel for M] observation that there is very little contemporaneous evidence as to M’s mental state in 2013 and, given the reported fluctuations in her symptoms, it is not appropriate to speculate as to the effect of her underlying difficulties on her cognitive functioning at that time.”

Current capacity (Para 49)

“…I accept the medical evidence, in particular that of Dr Andrews, that M lacks capacity in the six areas identified – residence, care arrangements, contact with others, whether to marry, consent to sexual relations and giving evidence.” i.e. that M lacks capacity in those areas currently.

Future capacity (para 50)

“…I conclude that it is neither appropriate nor possible for this court to reach a conclusion about whether, and, if so, when, M might regain capacity…I conclude that I cannot say whether, and, if so, when, it is likely that M will recover capacity in all or any of the six areas identified above. What is clear, however, is that, unlike many persons lacking capacity whose cases come before this Court, it is possible that M may recover capacity in respect of at least some of those areas…. It is impossible to predict when that point will arise, but, on the basis of the evidence of Dr Andrews and Dr Grace, I conclude that it is unlikely that it will occur until the second half of 2018 at the earliest.”

Mr Justice Baker concluded that, as a result of the above, the case should continue, to return later in 2018, at which time the second respondent local authority are to obtain updated evidence as to M’s capacity in the relevant areas, with liberty for the parties to apply thereafter.

Findings Of Fact And Resulting Orders

Mr Justice Baker helpfully summarises the legal position as regards a fact finding trial, with reliance on past case law, at paragraphs 76-83, namely, that:

  • The burden of proof lies on the party making the allegations and the standard of proof is the balance of probabilities;
  • Findings of fact must be based on evidence;
  • The court must take into account all the evidence, and furthermore, consider each piece of evidence in the context of all the other evidence.
  • Whilst appropriate attention must be paid to the opinion of medical experts, those opinions need to be considered in the context of all the other evidence.
  • The evidence of the members of M’s family and others involved in her care is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability. They must have the fullest opportunity to take part in the hearing and the court is likely to place considerable weight on the evidence and the impression it forms of them.
  • It is not uncommon for witnesses in these cases to tell lies in the course of the investigation and the hearing. The court must be careful to bear in mind that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear and distress, and the fact that a witness has lied about some matters does not mean that he or she has lied about everything, and witnesses may be fallible for other reasons; and
  • The court has to be alive to the issues that can be caused and the impact on testimony and evidence due to the passage of time.

The Judge abridged the extensive findings of fact sought, into summary areas as follows:

1.Financial allegations against M’s father, AB

The allegations and arguments of the parties are summarised at paragraph 99-105 and Mr Justice Baker’s conclusion is found at paragraph 161-162:  

As a result, in the light of AB’s dishonest appropriation of M’s funds, Mr Justice Baker agreed with the second respondent local authority that there could not be any question of AB remaining as M’s deputy as he had demonstrated that he was unfit to hold that office and his appointment was terminated.

“I reject AB’s explanation. I find that he spent M’s money for his own purposes without any consideration as to her wishes or needs. I find that he had no intention of repaying her. This was money to which she and she alone was entitled, either state benefits or compensation for the vicious assault perpetrated upon her several years earlier. I find that AB acted dishonestly and in breach of his obligations as her property and affairs deputy. I therefore make the findings sought by the local authority in the supplementary schedule concerning financial allegations (numbers 10 to 17). In the light of those findings, I do not consider it necessary or proportionate to consider the supplemental findings about financial misconduct proposed on behalf of HT. //These serious findings I have made concerning AB’s financial misconduct are relevant in a number of respects. First, they shed light on AB’s attitude towards M in the period prior to the ceremony in August 2013. Secondly, they shed light on his conduct towards her in the period after November 2013 when HT took her back to London. Thirdly, they plainly have an impact upon future decisions as to M’s best interests and the extent to which AB should be involved in her life hereafter.”

3. The circumstances of the marriage ceremony on 15 August 2013

The allegations and arguments of the parties are summarised at paragraph 106 under three headings, the latter two of which were given a joint conclusion by Mr Justice Baker:

(a). MS’s immigration status, which forms an important aspect of the background. The allegations and arguments of the parties are summarised at para 107-112 and Mr Justice Baker’s finding is at paragraph 163-165

“I have already indicated that I accept Mr Bagchi’s characterisation of MS’s evidence as extraordinary one-eyed. MS has a high opinion of himself and is focused almost exclusively on his own rights and the injustices which he considers have been perpetrated upon him. To my mind, the coincidence of the refusal of his immigration appeal in July 2013 and the very hurried arrangement of the marriage ceremony is glaring. I conclude that MS’s primary motive for marrying M was to improve his prospects of being allowed to remain in this country. I do not consider that this was his only motive. It is notable that, after the wedding, he moved into AB’s house. It seems likely that the plan agreed between the two men was that MS would look after M at AB’s house while AB travelled abroad visiting his wife. I do not accept, however, that there is much reliable evidence that MS harboured warm feelings of affection for M. Had he done so, he would surely have made at least some effort to try to secure her return to Northampton after she left in November 2013. In fact, I find that it suited him far more to live alone in AB’s house without the responsibility of looking after her. //My conclusion, therefore, is that MS’s primary motive for marrying M was to achieve an improved immigration status. I further find that AB knew that this was his primary motive. AB’s own motives are more difficult to discern, but overall I conclude that he acted partly to assist MS in his immigration application but also because he thought it would be right for M, and the family as a whole, for her to be married. In closing submissions, Mr Bagchi submitted that M’s welfare in the widest sense was not at the centre of the thinking of either man. I agree with his submission and also with his conclusion that this is relevant to the consequential issues of residence, contact and the role that each may play in M’s life in future, whenever those considerations might arise.”

(b) The introduction, proposal and arrangements for the marriage. The allegations and arguments of the parties are summarised at para 113-124, and

(c) The events of 15 August 2013. The allegations and arguments of the parties are summarised at para 125-141 and Mr Justice Baker’s findings on both points are at Para 167-168:

“(1)     For the reasons stated above, the presumption that, in August 2013, M had the capacity to marry and consent to sexual relations has not been rebutted. It follows that the court must proceed on the basis that, at the date of the ceremony, M had the capacity marry.

(2)      M was nevertheless a very vulnerable woman suffering from fluctuating psychotic illness and the permanent effects of a serious head injury. At all material times she was, and remains, vulnerable to the influence of members of her family, including both AB and HT.

(3)      On a balance of probabilities, I find that the various statements recorded as to her wishes and feelings about her Islamic marriage to MS have been substantially influenced by others, in particular by HT. In my judgment, HT has not deliberately set out to influence M, or lead her to say things that are not correct. But in the light of their respective characters, and HT’s undoubted influence over M, it is in my judgment overwhelmingly likely that HT’s views have affected and influenced M’s various statements about the marriage.

(4)      On a balance of probabilities, I accept HT’s evidence that M told her on 15 August that she did not want to get married. It does not follow, however, that M did not in fact want to marry MS on that day. Given her vulnerabilities, and the difficulties about accepting and interpreting her statements, it is impossible at this distance to discern her true wishes and feelings on the day of the ceremony.

(5)      On a balance of probabilities, I accept HT’s evidence that on 15 August 2013 she told AB that M did not want to marry MS and that AB responded “I’ll make her”. There is, however, no evidence of any pressure being exerted on M and, in the light of my finding that it is impossible to discern M’s true wishes and feelings on that day, however, I do not find that AB did in fact force M to marry MS.

(6)      I accept the evidence of the Imam as to the details of his conversation with M during the ceremony, supported as it is by several witnesses. I find that, when asked whether she consented to the marriage, M replied yes. On a balance of probabilities, I do not accept HT’s account that M said “if my father wishes”. I find that the Imam conducted the ceremony appropriately and fulfilled his obligations to satisfy himself that M consented to marrying MS.

(7)      I also accept the evidence of the other witnesses called to give oral evidence to the effect that there was nothing about the ceremony which led them to believe that M did not want to be married.

168. It follows, therefore, that, on the principal allegations made by the local authority and HT …I conclude:

  • that I am not satisfied that M did not want to marry MS on the date of the ceremony;
  • that, in the light of M’s vulnerability to influence at the date of, and after, the ceremony, and her current lack of capacity, I am not able to make any finding as to her current wishes and feelings concerning MS;
  • that, although the marriage was arranged entirely by AB and MS, and that M was unquestionably married under the influence of her father, I am not satisfied that she was coerced into the marriage.


169.  With regard to the linked findings sought on behalf of HT, to the effect that AB and MS failed to take any or any reasonable steps or proper steps to ascertain whether M had capacity to marry, and/or concealed her mental health and/or her marriage from those who may have been concerned ascertain her capacity, I conclude that the question of whether or not M had capacity to marry simply never occurred either AB or MS. In the light of the evidence of Prof Rehman, I do not consider it necessary, appropriate or proportionate for this court to analyse further the lengthy allegations made on HT’s behalf concerning AB’s failure to address this issue or seek the advice of any professional about it. It is undoubtedly correct that AB did not tell the Imam about M’s mental health difficulties, or consult anyone about whether M had the capacity to enter an Islamic marriage. In view of the evidence of Prof Rehman, it seems that this matter simply did not arise as a matter of Islamic social practice. It is inappropriate for this court to pass judgment on this practice unless necessary for the purposes of making decisions about M’s best interests. In my judgment, that necessity does not arise, at least at this stage.”

(3) The removal of M from AB’s address and its aftermath.

The allegations and arguments of the parties are summarised at paragraph Para 142-148 and Mr Justice Baker’s findings are found at paragraph 170-172:

“On these matters, I prefer the evidence of HT to that given by MS. I accept HT’s allegations that, when she visited AB’s house at the beginning of November 2013, she found M in a distressed state and in a poor physical condition, and the property also dirty and in a poor condition. I also accept that M asked HT to take her back to London, although, given my overall findings concerning M’s vulnerability and impressionable nature, I am cautious about drawing any conclusions as to her true wishes and feelings. Mr Simblet described HT’s account of the circumstances in which M was removed to London as making no sense and a “cock and bull story”. I disagree. I find her account detailed and plausible. Mr Simblet submits that it is significant that she took no photographs, or contacted anyone about the condition of the property. The fact that she failed to take those steps does not seem to me to undermine the credibility of her account. Mr Simblet further submits that, if M had really been living in conditions as described by HT, it is very surprising that HT was planning to go back to London alone until M begged her to take her with her. To my mind, however, the fact that HT did not decide to take M with her until she begged to do so is unsurprising, given that M was married to MS and living in AB’s house. It is true, as Mr Simblet submits, that there is no other evidence – for example, from anyone who saw M after she arrived in London – to corroborate HT’s allegation about M’s condition. I have thought carefully about the absence of corroboration but, having done so, I have reached the conclusion that this does not undermine the credibility of HT’s allegations about the events of November 2013. In considering this important aspect of the case, I have thought carefully about my concerns about HT’s reliability as a witness as particularised above. Having done so, however, I am satisfied, on a balance of probabilities, that her account of the events of November 2013 is true.

171.   It is to my mind very significant that neither MS nor AB took any or any material action in response to HT’s removal of M to London. Their explanations for failing to take any such steps are in my judgment revealing. MS’s explanation that he left the matter to AB who said he would handle it, and his failure to take any steps himself when it became clear that AB was in fact doing nothing about it, are a clear indication in my judgment that he did not see the need to take any steps to secure the return of his wife. Mr Simblet submitted in closing there is no evidence that MS does not genuinely care about M and that his conduct towards her has been entirely consistent with a genuine relationship. I disagree. If MS genuinely cared about M, he would surely have taken active steps to secure her return to the family home. In my judgment, MS’s conduct after November 2013 reinforces the view that his principal motive in marrying M was to achieve an improved immigration status. In closing submissions, Mr Bhose for the local authority submitted that the marriage of convenience MS had entered into had ended up being extremely inconvenient and had not brought in the resolution of his immigration problems. I agree with Mr Bhose’s analysis.

172.   Equally striking is AB’s failure to return to this country at all until September 2014. AB’s explanation – that his priorities lay with the needs of his own wife and mother – does not in my judgment provide an adequate explanation for his failure to anything at all about what was happening to his vulnerable daughter. I conclude that he no longer regarded M as his responsibility, although he continued to spend her money for his own purposes.”

(4) The allegations against HT.

The allegations and arguments of the parties are summarised at paragraph Para 149-158 and Mr Justice Baker’s findings are found at paragraph 173: “Finally, I deal with the cross allegations made by AB and MS against HT. To a substantial extent, these allegations are a riposte to the allegations made against her. I make the following findings which, in my judgment deal sufficiently with these cross-allegations:

“Finally, I deal with the cross allegations made by AB and MS against HT. To a substantial extent, these allegations are a riposte to the allegations made against her. I make the following findings which, in my judgment deal sufficiently with these cross-allegations.

(1)        I find that HT had anxieties about M’s welfare over a period of time prior to August 2013 and was concerned about whether the marriage to MS was in her best interests. I do not find that HT was opposed to the marriage because of MS’s Indian nationality but, rather, because of her concerns about M’s vulnerability.

(2)        HT genuinely believed that MS’s motive for marrying M was to improve his immigration status, and she was genuinely concerned that M had been coerced by AB into the marriage.

(3)        I find that HT acted in M’s best interests in removing her to London in November 2013. I find that, in doing so, she was motivated solely by concerns about M’s welfare.

(4)        I find that, after bringing M to London, HT was concerned that AB and MS might try to get her back to Northampton and for that reason did not actively encourage contact.

(5)        I do not find that HT was motivated by a desire to benefit financially from M or to control M’s financial affairs. I reject the allegation that she has acted dishonestly with regard to M’s finances.

(6)        I find that after November 2013 HT cared for M to the best of her ability. The deterioration in M’s mental health was not attributable to any deficiency in the care provided by her aunt.

(7)        I find that HT has strong views about the behaviour of AB and MS towards M, that it is likely that, intentionally or otherwise, she has conveyed those views to M, and that M has at times made statements which reflect HT’s influence.

(8)        On a balance of probabilities, it is likely that some of the allegations which HT reports M has made have in fact been prompted by HT’s own statements and questions which, in turn, derived from HT’s views and concerns about the way M had been treated.

(9)        Contrary to the assertion made by AB, HT has told professionals about her concerns from an early stage. Her concerns have grown over time in the light of statements made by M, although, for the reasons set out above, those statements are likely in turn to be prompted by statements and questions emanating from HT and are therefore unreliable.

(10)      In making the allegations against AB and MS, HT may have acted misguidedly at times, but in my judgment she has not acted dishonestly or in bad faith.

Non Marriage And Request For A Forced Marriage Protection Order (FMPO)

As a result of the findings above, Mr Justice Baker, heard evidence as to the applications for a declaration of non-marriage and/or a forced marriage protection order.

In relation to the application for a declaration of non-marriage, the judge concluded that the marriage failed to comply with the essential requirements of the Marriage Acts 1947-1986 in that it was not carried out in a registered place or conducted by a registrar and it never intended to attract the status of a valid marriage under English law. The legal effect of this was to entitle M to a declaration to this effect, contrary to the arguments of AB and MS that to do so would be otiose or would wrongly interfere with what was a legally valid Islamic marriage. It was argued on behalf of the Official Solicitor acting as M’s litigation friend that the court should not make any orders or declarations at all as to the religious status of the marriage, and that it was of benefit to the parties to the marriage for its status under English law declared as a matter of record. However, so as to avoid any possibility of confusion, the terms of the declaration were refined so as to provide “that the Islamic ceremony of marriage between M and MS on 15 August 2013 did not conform with the requirements of the Marriage Acts and that M and MS are not married under English law”.

Having found that M currently lacks the mental capacity to contract a marriage, the court declined to make a FMPO, such not being necessary for the time being in view of the fact that “M is at present in hospital and unlikely to be discharged for some time. She is unlikely to have any direct contact with either AB or MS for the foreseeable future. If the local authority wishes to pursue its application for a forced marriage protection order in due course, this can be considered at a further hearing”.

What Will Happen Now?

The case continues, with M still detained under s3 MHA undergoing rehabilitation treatment, with further evidence as to M’s capacity to be provided later in the year. In the meantime, in light of the current findings and circumstances on the ground, M can maintain unrestricted contact with HT, limited indirect contact with AB and no contact whatsoever with MS. A remaining question will then be, as set out at para 191 of the judgment, the involvement of AB and MS in the decision-making process for M thereafter. For the time being the Judge has rejected a request by the second respondent local authority to exclude MS from the process as he is, as AB is, interested in M’s welfare, at least “to some extent.”

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