Hull City Council v KF [2022] EWCOP 33

Capacity and best interests decision concerning whether KF has capacity to have sexual relations with KF, a man who has sexually assaulted her in the past.

​KF has a learning difficulty that causes problems with capacity. She had been in a long term relationship with KW but there had been several episodes of sexual and physical assault, one leading to hospitalisation. She returned to live with him after that incident but KF moved to a care home placement after further assaults. An initial assessment found that she had capacity to have sexual relations but not to conduct proceedings, decide on property affairs etc.

This judgment arose from an application concerning whether it was in KF’s best interest to be allowed to spend a night with KW in circumstances where she had been diagnosed with metastatic breast cancer and he was about to be sentenced for the assaults. Mr Justice Poole notes that the expert witness now considered that KF did not have capacity to decide on having sex with KW, directs himself there is a person-specific question to be addressed and, in that light, concludes she does not have capacity. He then considers KF’s best interests and states at [29]    

“Having determined that KF lacks capacity to make those decisions, the court has to consider whether it is in KF's best interests to spend unsupervised time with KW including overnight. The court cannot consent to sexual relations on behalf of a person. If someone had sexual relations with KF without her consent it would be an assault. Sexual intercourse without her consent would be rape. Therefore, having decided that KF lacks capacity to decide to engage in sexual relations with KW, the court cannot decide that it is in her best interests to have sexual relations with him.”
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However he does rule that it is in her best interest only to have contact with KW in public places and under supervision so sees “no reason why it would be contrary to KF's best interests to accede to her wish to kiss and cuddle KW during a final supervised contact in a public place.”

​Read the judgment on Bailii