This case relates to CH – a 38-year-old male with Downs syndrome and an associated learning disability.
In 2010, CH married WH and they had been living together ever since in CH’s parent’s home, enjoying a normal marital relationship.
In late 2014, CH was assessed by a consultant psychologist who concluded that CH lacked capacity to consent to sexual relations. CH and WH were informed of this by letter dated 27 March 2015 and WH was informed that she must abstain from sexual intercourse with CH as, given CH’s lack of capacity to consent, that would comprise a serious criminal offence. WH had understood that her failure to comply with this would result in safeguarding measures being taken by the local authority to remove her or CH from their home. The parties complied and WH moved in to a separate bedroom, which CH was unable to understand. WH also significantly reduced any physical expression of affection towards CH so that she did not ‘lead him on’.
Section 1(3) of the Mental Capacity Act 2005 provides “A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success”. In accordance with this, the consultant psychologist stated that CH needed a court of sexual education to assist him to achieve the necessary capacity to consult to sexual relationships.
For reasons that were not explained within the proceedings, the local authority failed to provide CH with sexual education, despite requests. In the end, CH’s sister, acting as his litigation friend, started proceedings in the Court of Protection in February 2016. CH began receiving sexual education on 27 June 2016 and, upon completion, the therapist reported that CH had made sufficient progress in all areas save for the understanding of health risks from sexually transmitted diseases. Further sexual education was then provided in early 2017 and, on 19 March 2017, CH was deemed to have capacity to consent to sexual relations. The local authority accepted this view on 2 May 2017 and CH and WH were able to resume marital relations.
The damages claim
The claim for damages was brought in accordance with the Human Rights Act 1998. Section 6(1) of the Human Rights Act 1998 provides “It is unlawful for a public authority to act in a way which is incompatible with the Convention right.” The right in question in this matter was Article 8 of the European Convention on Human Rights – “Everyone has the right to respect for his private and family life, his home and his correspondence.” However, Article 8 is a qualified right, meaning that the right can be lawfully restricted.
The court considered that some interference to CH and WH’s marital relations was justified and lawful as CH had been deemed to lack capacity to consent to sexual relations. However, the essence of the claim was the local authority’s delay in implementing the advised sexual education between 27 March 2015 (when the local authority wrote to CH and WH) and 27 June 2016 (when the sexual education commenced).
The local authority offered:
As CH was deemed to lack litigation capacity and so was a protected party within the proceedings, any settlement of the damages claim required the approval of the Court of Protection. The Judge concluded that the proposed settlement was in the best interests of CH and reflected a fair outcome to the proceedings. The Judge, therefore, authorised CH’s litigation friend to accept the offer on behalf of CH.