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28 JUL 2005

INHERENT JURISDICTION: M v B, A and S (By The Official Solicitor) [2005] EWHC 1681 (Fam)

(Family Division; Sumner J; 28 July 2005) [2006] 1 FLR 117

S is aged 23, has learning difficulties and lives with her family. S is of Pakistani origin. Neither the parents nor the Official Solicitor, on behalf of S, opposed the grant of a declaration that she lacks capacity to marry. The parents argued that they only wished to take S on holiday to Pakistan to meet her wider family. The High Court held that where declaratory relief is sought in relation to an adult who lacks capacity under the courts inherent jurisdiction, the proceedings should be commenced under CPR Part 8 and a substantial dispute of fact is not a bar to such procedure. The approach of Munby J to capacity to marry, as set out in Re E (An Alleged Patient); Sheffield City Council v E and S [2004] EWHC 2808 (Fam), [2005] 1 FLR 965 was followed. In appropriate circumstances there is jurisdiction to make an order to restrain those responsible for an adult lacking capacity from entering into a contract of marriage whether formal or informal if it is required to protect that adult's best interests. The father's dominant position in the family, coupled with his lack of insight into S's condition and the strong cultural motivation to see her married, established a substantial risk to S. The injunction was to protect S's private life and to ensure it is not jeopardised by her parent's actions in seeking to arrange a marriage, it was thus in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, Art 8.

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