In a judgment handed down today in LB Southwark v KA, MA & RN (Capacity to Marry)  EWHC 661 (Fam), Parker J considers the necessary elements to capacity to consent to sexual relations and to marriage.
The case concerned a 29-year-old man ("KA") diagnosed with a learning disability, whose family were trying to find a wife for him. After concerns were raised about KA's capacity by his GP, Southwark obtained Force Marriage Protection Orders. Proceedings were issued in the Court of Protection to determine KA's capacity to consent to sexual relations and to marry.
While Parker J declined the invitation of the parties to reconcile previous authorities and formulate "a more complete test" (paras 34-36), her judgment provides interesting discussion in relation to issues arising in such cases.
She began by noting that "the tests for capacity in respect of sexual relations and marriage are not high or complex" (para 37)
In relation to capacity to consent to sexual relations, she noted (para 41) that:
The core relevant information [that it was necessary for KA to be able to understand, retain and weigh], in respect of sexual relations, on the basis of established authority, is:
(i) The mechanics of the act.
ii) That sexual relations can lead to pregnancy.
iii) That there are health risks caused by sexual relations.
She was then asked to clarify (para 44) the necessary degree of understanding of:
a) Health risks of sexual activity: what health risks must be perceived and to what extent.
b) Whether health risks include a risk of pregnancy, or whether it is a separate risk.
c) The extent of the understanding of pregnancy as a consequence and the process of pregnancy, and does there need to be an understanding of a possibility of pregnancy if P is homosexual.
d) Is an understanding of any protective method against either pregnancy or disease necessary.
e) What is the role of consent and does it relate to the assessment of capacity or the exercise of capacity.
Perhaps surprisingly, she suggested that, while it would be essential for KA to understand the need for his own consent to sexual contact, it may not be necessary for him to understand the need for consent of his partner (para 56: see quote below). Her comments on this matter were, however, obiter, as KA understood both (para 57).
Less surprisingly, she held that "pregnancy is a separate type of consequence from illness and must be considered separately. It does not constitute ill-health" (para 67).
In relation to debate arising from a remark of Hedley J in A Local Authority v H ("in my view it should suffice if a person understands that sexual relations may lead to significant ill-health and that these risks can be reduced by precautions like a condom") she suggested that the reference to condom use was illustrative, rather than definitive, of understanding of the risk of disease. Thus it was not necessary for KA to understand condom use "which, leaving aside efficacy, goes to welfare and not capacity" (para 72).
In relation to capacity to marry, it was not necessary for KA to understand (a) that his wife, if she was from Bangladesh, would need to obtain entry clearance or (b) how financial remedy law and procedure works (para 79).
Ultimately, notwithstanding that "KA is on the borderline of understanding in respect of some of the more refined evaluations" (para 80), Parker J held that the presumption of capacity had not been displaced (para 86).
Since it is all too possible for sexual contact to take place, and does take place, without consent the necessity for the consent of a partner does not obviously form part of the capacity test, particularly since the issue of consent in the criminal law can give rise to complex debate as to mens rea, particularly in cases of apparent consent or lack of explicit communication of consent.