ZZ (Capacity), Re [2024] EWCOP 21

Appeal by the local authority against a decision that ZZ has capacity to make decisions about residence, engage in sexual relations and marriage.

Z is a 20 year old man with diagnoses of learning disability, ADHD and possible OCD. He is subject to  Sexual Harm Prevention Order following his conviction for sexual assault and in his placements had exhibited sexualised behaviours. An expert assessed ZZ and found he lacked capacity in some areas but did have capacity to engage in sexual relations, to marry, to use contraception and to enter into/terminate a tenancy. At an earlier hearing the judge broadly agreed in the context that he now wished to live with his girlfriend. The local authority appealed

Theis J, Vice President, allows the appeal. On residence this was broadly because the judge had not grappled with the issue of whether the plan to live with girlfriend and her mother was pipedream. On sexual relations, the judge had failed to properly weigh in the balance the evidence that ZZ has a record of sex offending, Finally, on capacity to marry, whilst Theis J did not reach any conclusions as to whether such a declaration could stand irrespective of any conclusion about capacity to engage in sexual relations, she was satisfied the ground of appeal was established in the circumstances of this case

Read the judgment on Bailii