W, Re: Capacity to Engage in Sexual Relations & Marry [2025] EWCOP 32 (T2)

Application concerning whether W has the capacity to engage in sexual relations and to enter into a marriage or civil partnership.

W is 32 years old and has learning difficulties. She had been married in 2014, which was subsequently found to be a Forced Marriage, and since 2018 has been living in supported accommodation with support from Y. A support plan in place specifies that X has to inform Y of her activities but W is able to live relatively independently and has even travelled abroad. W has constantly expressed a wish to engage in sexual relations but several incidents in her past have caused concerns about her capacity.

In this judgment HHJ Farquhar reviews the differences in the opinion of the experts. Broadly, one found W lacked capacity while another found she had capacity but may have difficulty exercising it. He agrees on both counts with the latter opinion noting at [56]: 

"in the vast majority of such cases involving fully capacitous individuals there is little, if any, assessment carried out of the risks involved or whether the encounter would be one in which there is mutual respect between the individuals involved. I am satisfied that it would be setting the bar too high, and higher than it would be for capacitous individuals to state that W lacked capacity in such situations. As was said in TZ  "There is a danger that the imposition of a higher standard for capacity may discriminate against people with a mental impairment."  There is a risk that would be occurring with W if the order sought by the Local Authority was to be granted."

Read the judgment on Bailii​