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(Family Division; Munby J; 13 February 2006)  FLR (forthcoming)
It was accepted that the patient, an autistic adult male, currently lacked capacity to consent to marriage. The parents nonetheless had a long-cherished plan to marry the patient to a cousin abroad. Their attempts to obtain an entry clearance for the cousin as the patient's fiancée had failed and they had made firm arrangements to travel with the patient to the country where the cousin lived, despite very strong advice that he could not tolerate travel in airplane. The local authority, concerned that the parents planned to marry the patient abroad, instituted proceedings. An order for seizure of the patient's passport was drawn up inaccurately and the police removed the parents' passports as well; these were not returned for many months despite the parents' protests.
It was clear that any marriage, whether inside or outside UK, would not be recognised under English law because the patient lacked capacity. Given that this had been established, sufficient reliance could be placed on the parents' undertakings, together with the disclosure of appropriate documents to the authorities, including the British High Commission, so that there was no need to injunct the parents from any actions. There were mechanisms for application to the court for release from such undertakings if the son's condition improved. Although sexual relations did not necessarily form part of a marriage contract, generally speaking the capacity to marry had to include the capacity to consent to sexual relations, in essentials as required by the criminal law. To avoid in future the significant problem concerning seizure of passports in this case: the court should check carefully to ensure that passport and other tipstaff orders were accurately drawn and in a form which accorded precisely with the judge's order; those involved should ensure that any order for the return of a passport seized by the tipstaff was expressed as being directed to the tipstaff; and if an order for the return of a passport was made it should be drawn as a separate order which could immediately be sealed without waiting for the finalisation of any other orders or directions.
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