Marriage, mental capacity and sharia: a clash of religious and cultural norms: repost

BAILII has posted a revised version of the judgment in XCC v AA & Anor [2012] EWHC 2183 (COP) (26 July 2012). The previous version was taken down from the site at the request of the Official Solicitor – after which we took down our own post which quoted it, on the assumption that the first version had been removed in order to protect the anonymity of the parties.

The issue before the Court of Protection in XCC, which concerned the capacity to marry, was at least in part the result of a clash of religious and cultural norms.

DD’s parents are Bangladeshi: they live in the United Kingdom, they have brought up their family here and all the family are British citizens. DD lacks capacity to a very significant degree. In 2003 she entered an arranged marriage with AA which took place in Bangladesh. AA finally obtained a spousal visa and entered the UK in 2009. DD’s marriage eventually came to the attention of the learning disabilities team of her local authority, XCC. The local authority became very concerned about her welfare; and the police obtained a Forced Marriage Protection Order – which continued pending an application by XCC to the Court of Protection. The Official Solicitor was appointed as DD’s litigation friend, and a consultant psychiatrist in learning disabilities was instructed to assess her capacity to marry and have a sexual relationship.

In the Court of Protection in October 2010 Parker J heard substantive proceedings about DD and afterwards made a series of declarations in the face of very strong resistance from DD’s parents and AA, the most important of which were:

  • that DD lacked capacity to marry both now and in 2003 when the marriage ceremony had taken place in Bangladesh; and
  • that DD lacked capacity to consent to sexual relations and to make decisions regarding with whom she should or should not have contact (para 7).

As a consequence of those declarations, it was therefore unlawful for AA or for any other person to engage in any kind of sexual activity with DD. However, Parker J conceded in her later judgment that this finding was very problematic for the family. DD’s parents

“… do not communicate well in English: her mother understands and speaks almost none. They are devout Muslims … DD is a loved and valued member of her family and … her parents are devoted to her. The family is bewildered and disconcerted that they are seen as having done anything wrong, and that what they have done may be seen as contrary to DD’s best interests. In my December 2010 judgment I accepted that in DD’s parents’ culture it is considered a duty of parents to arrange for their children to be married and that disabled children are found spouses so that they can be provided for when the parents are unable to do so. Whether there was some other motive for the marriage such as family or other obligations in addition I was not able to determine” (para 9).

In a previous case, KC & Anor v City of Westminster Social & Community Services Department & Anor [2008] EWCA Civ 198, the Court of Appeal had held that a marriage between a British Muslim of Bangladeshi origin and a Bangladeshi girl – which had been conducted by telephone link between England and Bangladesh – was invalid because the husband, IC, lacked the necessary mental capacity to marry, even though the marriage that the parties contracted was valid under sharia and Bangladeshi secular law. In his judgment in that case Wall LJ pointed up the cultural difference as follows:

“The appeal throws up a profound difference in culture and thinking between domestic English notions of welfare and those embraced by Islam. This is a clash which, in my judgment, this court cannot side-step or ignore. To the Bangladeshi mind … the marriage of IC is perceived as a means of protecting him, and of ensuring that he is properly cared for within the family when his parents are no longer in a position to do so.

To the mind of the English lawyer, by contrast, such a marriage is perceived as exploitative and indeed abusive. Under English law, a person in the position of IC is precluded from marriage for the simple reason that he lacks the capacity to marry” (paras 44 & 45).

Following the Court of Appeal in KC, Parker J was satisfied that she had jurisdiction to make a non-recognition declaration under the inherent jurisdiction of the High Court and that she could do so of her own motion. Moreover, she took the view that “a marriage with an incapacitated person who is unable to consent is a forced marriage within the meaning of the Forced Marriage Act 2007” – as she had made clear in her previous (unreported) judgment which she quoted at para 30 of her later one:

“[185] In this case the family does not perceive DD to have been ‘forced’ because there was no threat or physical or emotional coercion. In this context it must be made clear that ‘Forced Marriage’ is defined by the Forced Marriage (Civil Protection) Act 2007 as occurring ‘if another person (“B”) forces A to enter into a marriage (whether with B or another person) without A’s free and full consent’; and by section 1 (6) ‘force’ includes ‘coercion by threats or other psychological means’.

[186] ‘Force’ in the context of a person who lacks capacity must include inducing or arranging for a person who lacks capacity to undergo a ceremony of marriage, even if no compulsion or coercion is required as it would be with a person with capacity.”

She declared that the marriage of DD and AA, celebrated in Bangladesh and valid according to Bangladeshi law, was not recognised as a valid marriage in England and Wales. Subject to further argument as to the precise form of the order, she also declared that it would be in DD’s best interests for a nullity application to be issued. She therefore directed that the application should be issued and appointed the Official Solicitor as DD’s litigation friend for that purpose.

Comment: To describe this as a very sad case is an understatement. Parker J noted at para 69 of her judgment that DD’s parents had been subjected to a number of adverse comments from members of their community about why the police had been to their house and why AA was no longer living with them; and they had told her that they believed that marriage was for life and that a divorce or annulment would lead to embarrassment and criticism and, quite possibly, lower the family’s standing in the community and stigmatise DD.

On the more general point of forced marriage and lack of capacity, Parker J repeated (at para 96) the postscript to her earlier unreported judgment in which she criticised the lack of communication between local GPs and the local social services department. It was her view that professionals had a duty to report cases of suspected forced marriage, including forced marriage of persons who lack capacity. That, in her opinion, was reinforced by the December 2010 guidance for multidisciplinary teams, Forced Marriage and Learning Disabilities: Multi-Agency Practice Guidelines published by the Forced Marriage Unit.

Finally, one issue of particular concern for the Bangladeshi community seemed to be whether or not the couple had had sexual relations and, assuming that they had done so, whether or not they were married at the time. Parker J accepted the advice of an expert in Islamic law, Professor Javaid Rehman of Brunel University Law School – who had been commissioned by the Official Solicitor to report on certain aspects of the case – that if the community was assured that any sexual relationship had taken place within the provisions of sharia law, then the refusal to recognise the marriage in the UK would be understood (para 69). Perhaps so: but one cannot but pity the family nevertheless.

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