Several months ago, the Court of Protection came under the limelight in relation to comments by Hayden J, during a case management hearing regarding the consent of NB to have sex. Several articles focused on the criticisms faced Hayden J for his comments which seemed to suggest that it was a fundamental right for a man to have sex with his wife.


NB and AU have been married for over 25 years and have a daughter together. NB has a “global learning disability”. All evidence put before the court appeared to show that NB and AU were happily married, that she was very affectionate towards AU, and that the relationship was very important to her psychological well-being. However, due to some comments made to a dentist in October 2014, which were not recorded or put before the court, a safeguarding enquiry led to an assessment of her capacity.

It was concluded that she did not have capacity to marry or to have sex. As a result of this finding, AU stopped having sex with her.

Court proceedings

An application was brought the Court of Protection and the Court was asked to find that NB does not have capacity to have sex.

It was recognised by Hayden J that this is a complex and intensely personal decision and affects the fundamental right to a private and family life of both AU and NB, who, up until now, appear to have had a normal marriage.

Unfortunately, as Hayden J noted in his next interim judgment in May, the media storm surrounding his comments, and possibly some poor legal advice, AU was frightened into leaving the family home completely and not engaging at all with the court proceedings.

On 16 July 2019, a further judgment was published. This is very detailed and deserves to be read in full. Some of the main themes that emerged were:

  • Any finding that someone lacks capacity to consent to sexual relations will result in a very serious interference in their private life.
  • The aim of the Mental Capacity Act 2005 and the Court of Protection is not to wrap up vulnerable people in cotton wool, but to promote capacity where possible, and help them live as full a life as possible.
  • Sex is one of the most personal decisions one can make, and the decision to consent depends on all of the unique circumstances of the situation; it is not enough to look at an understanding of sex in general.
  • For NB, who was in a monogamous relationship of 27 years, with no apparent risk of sexually transmitted diseases, who was past child-bearing age, and showed no desire to have sex with anyone other than her husband, it was not necessarily important for her to have a full understanding of pregnancy and sexually transmitted diseases in order for her to consent to sex.

Hayden J did not make a final finding and a further judgment is expected. However, he did invite the parties to consider reassessing NB’s capacity following his judgment. Of course, if the media intensity has been so great as to frighten AU completely from engaging with the marriage further, this judgment may become irrelevant.