LOCAL AUTHORITY/MARRIAGE: Ealing London Borough Council v KS and LU, Re SK [2008] EWHC 636 (Fam)

03 APR 2008

(Family Division; Roderic Wood J; 3 April 2008)

The vulnerable adult, who suffered from a schizoaffective disorder, came from a family of Afghan refugees. Her family was in a state of semi-permanent conflict, and had made a number of accusations against each other in relation to the care offered to the vulnerable adult. The vulnerable adult had been married three times, possibly to secure entry clearance for the men concerned, and had been pregnant on a number of occasions. On the only occasion the vulnerable adult had given birth, she had relapsed into psychotic mental illness for an extended period; the child had died shortly afterwards of natural causes. The authority wished to place the vulnerable adult in a particular home; most of the family supported a placement with the elderly mother. It had been recommended by a doctor that the vulnerable adult have a cystic mass removed, which might involve removal of the left ovary. One of the vulnerable adult's sisters argued that the current test as to capacity to consent to sexual intercourse failed to protect the vulnerable adult sufficiently.

The vulnerable adult had no capacity to litigate, to marry, or to consent to an ovarian cystectomy; she had a fluctuating capacity to consent to sexual intercourse. There was evidence of considerable neglect of the vulnerable adult by members of the family; the mother was incapable of caring for her. The authority's proposed placement was in the vulnerable adult's best interests. The proposed medical treatment was in the adult's best interests. It was unclear whether the vulnerable adult had lacked capacity to marry when she entered into the earlier marriages, but in relation to the third marriage the court was prepared to declare that it would not be recognised as valid in English law, being in breach of the Marriage Acts of 1949 and 1994, with particular reference to the form of celebration. During those periods when the vulnerable adult had capacity to consent to sexual relations, it would not be lawful to intervene in the exercise of her choice to undertake lawful acts, albeit that her decisions would be unwise on an objective view.

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