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(Court of Protection, Hedley J, 20 July 2012)
The 48-year-old woman who suffered from mild learning difficulties lived independently in the community. She formed a relationship with a man who was subsequently imprisoned for sexual offences and during his sentence they were married.
The local authority applied to the court prior to the man's release for a declaration that it was lawful to permit the woman to resume married life with the man on the grounds that the risk he posed to her was outweighed by the likely distress that would be caused if she were not permitted to continue the relationship.
The court was asked to determine whether the woman had capacity to decide whether to have contact with the man or reside with him and, if not, whether it was in her best interests to do so.
On the evidence the woman had an impairment of mind which prevented her from understanding the risk posed by the man and she was unable to weigh the information underpinning that potential risk. The court made a declaration that the woman lacked capacity to make decisions in that regard. It was in her best interests to resume cohabitation with the man in a structured manner with monitoring in place. If contact with the man were prohibited there would be a long restriction of the woman's liberty of an undefinable length with serious risks to deterioration in the relationship between the woman and those supporting her.
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