The Court of Protection and “consent to sex”: London Borough of Tower Hamlets


NB suffers from what is described as “general global learning difficulty” and an impaired ability to communicate with others. She came to live in the United Kingdom in 1985 and married her husband, AU in 1992: the marriage was contracted abroad and when she first came to live in the UK she did so without her husband. The couple were separated until May 1996, when NB travelled abroad to live with her husband but, following a series of applications to the Home Office throughout 1997, they came to the UK together to live in London with NB’s parents. A daughter was born a year later.

The issue arose as to whether NB had capacity to consent to sexual relations with her husband under the terms of the Mental Capacity Act 2005; and in Re NB (Consent to sex) [2019] EWCOP 17 Hayden J delivered a short judgment ex tempore “in order that AU may receive a copy of it and better understand the focus of the Court’s enquiry” and be represented if necessary, and “in order to explore fully NB’s right to a sexual life with her husband and he with her, if that is at all possible” [17]. Hayden J’s final judgment in London Borough of Tower Hamlets v NB (consent to sex) [2019] EWCOP 27 has now been published.

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