Court of Protection nullifies marriage without husband’s knowledge
Imagine a superior court, presided over by a solitary judge, empowered by the state to determine the ‘personal welfare issues’ of those who are deemed to be incapable of doing so on their own behalf. We’re talking about jurisdiction over the financial or property affairs of those whom the state determines lack the mental capacity to make informed decisions for themselves. This court also has enduring powers of attorney, such that it may order, in perpetuity, the affairs of all who are appointed to its ‘protection’, such as appointing trustees over an estate; writing a last will and testament on their behalf; determining where they live, how they are cared for, and even who may visit them.
And now imagine that such a judge sitting in such a court determines to nullify the marriage union of one of its ‘protected’ clients, despite both parties having freely consented to that union to the satisfaction of a registrar, legal witnesses, and an experienced professional with 16 years’ experience of working with the mentally incapacitated.
This is not the former Soviet Union, Communist China, North Korea or Islamist Iran. It is the Court of Protection in England, today, issuing ‘family court’ judgments which affect husbands and wives, mothers, fathers and children, as though marriage were not so much an honourable estate for mutual companionship, love and the secure rearing of the next generation, but a simple contract for the ordering of material possessions.
Now, certainly, property rights are why states and lawyers began to involve themselves in the business of marriage at all: it is for the common good of society that matters of ownership and legitimate inheritance are properly ordered. But for Christians – indeed, for people of all faiths and for many of none – there is something of rite and ritual about the marriage ceremony, whether secular, sacred or sacramental. The vows of personal promise, of commitment, and the swearing of oaths – before God and/or the assembled community – are sincerely made and deeply felt. It is what makes marriage marriage: it is part of why ‘civil partnership’, which has no statutory inclusion of oaths or promises, fails to satisfy so many gays and lesbians. Marriage is more than a state contract, they insist, and so the mystical element of holy matrimony must be extended equally to patrimony, whether holy or not: it is more, much more than two signatures on a solicitor’s piece of paper.
A case has been brought to His Grace’s attention which he finds somewhat disturbing. In fact, it is outrageous. The transcript of the judgment relating to the brain-damaged husband (SK) and his wife (JK) is long, but Anna Raccoon has the summary details (and not dissimilar concerns). The Court of Protection does not permit the individuals concerned to be identified, so Ms Raccoon calls them Sam and Jane. For convenience, His Grace will do the same.
Jane did not seek the annulment: the case was brought by a ‘local authority’ (– you know, the sort who not infrequently traumatise parents by bringing secret cases relating to child protection or adoption, which can never be reported in the media –) on behalf of Sam’s family, who seem somewhat irked that Jane married Sam in the first place.
Sam tragically suffered two separate head injuries which left him mentally impaired, but by no means incapable of comprehending or expressing himself. Of course, there is some dispute about what he may or may not understand, but (for legal purposes) he is deemed sufficiently compos mentis to consent to medical procedures including surgery. Sam can apparently sign his name, talk and engage in relationship: he is by no means a vegetable.
Jane has known Sam for 35 years – they were teenage sweethearts. Both married other partners and both subsequently divorced. When Jane heard of Sam’s second accident in 2008, she went immediately to the hospital. The court papers inform us that she has visited him there on a ‘more or less daily’ basis over four long years to date. As Ms Raccoon observes: ‘I don’t think anyone can doubt her commitment to Sam’s well being.’ His Grace would go further, not doubting her love and concern, for four years of daily visits is a profound sacrifice.
But Jane is not family: it is Sam’s next of kin who took charge of his care, and they determined that a state neuro-disability unit was preferable to living at home. This is Sam’s brother and mother – who do not visit Sam daily, but might be more inclined to order his care such that it’s not so much of a burden to them. Discussions have taken place and decisions been taken to which Sam was not party because, Ms Raccoon tells us, ‘once someone is deemed not to have capacity to conduct their legal affairs, as “a patient” they cease to be consulted as a matter of course’.
There is some dispute as to what transpired next: As far as Jane is concerned, their four-year relationship of daily encounters blossomed into love, and they agreed to get married and live together happily ever after, she caring for him and meeting all his needs in a domestic setting – care in the home. Since Sam’s family weren’t overly keen on Jane, the decision was taken to do it all in secret. But Jane was careful to arrange an independent advocate for Sam, whom we shall call Robin (an advocate for mentally incapacitated individuals of 16 years’ experience; a former Assistant Director of a Social Services Department, working through the Representational Advocacy Unit of the local Citizens Advice Bureau) We are told:
Robin had several conversations with Sam and Jane. During those conversations he became aware that they wished to marry – and he was of the opinion that Sam had the necessary capacity to contract a marriage. The level of capacity to contract a marriage is considerably lower than that required to handle ones financial affairs.So, Jane arranged the marriage ceremony with the town’s Principal Registrar, disclosing fully Sam’s brain injury, and that he had been assessed as lacking the capacity to handle his financial affairs or to decide where he lived. She left it to the Registrar to make a judgment about Sam’s capacity to marry. When later questioned by a neuro-surgeon, the judgment was that ‘Sam can’t retain even simple information’, yet when he gives perfectly reasonable answers to a question (such as the meaning of marriage), the medical assessment is that this is ‘retained information’. English case law on the capacity to marry is a not straightforward, but who (really) may be judged as knowing fully what the commitment entails before all the rows, in-laws, money problems and children descend upon the blissful union?
Robin also became aware that Sam and Jane didn’t want to involve his family – the reasons he was given as to why are not recorded, but as Sam’s advocate, his job was to reflect what Sam wanted.
Most importantly – and here’s a principal outrage – Sam was questioned and assessed on his capacity to enter into a marriage union without full knowledge of the reason for the questions, or any awareness at all of the importance to be attached to his responses. As far as he’s concerned, he’s having a chat about the meaning and significance of marriage. In reality, the Local Authority is gathering evidence to attempt to nullify the union.
Just a week before the wedding, Sam required surgery for a bladder operation. All the medical professionals involved were content that Sam had the necessary capacity to consent to this. There was no appeal to the Court of Protection to determine Sam’s ‘personal welfare issues’ where invasive surgery was concerned.
Is the consent to marry of a higher order than life and death matters of surgery?
Well, clearly the Court of Protection thinks so, for the Judge has swept aside the evidence of Jane, Robin and the Registrar, not to mention the professional judgment of a surgeon and an anaesthetist. Sam’s mother and brother were naturally upset to hear that he had eloped (what family wouldn’t be?), and were even more angered that Jane took Sam out of the clinical facility to live with her. Ms Raccoon recounts:
It was by any standard, a brave decision, and not one taken in total ignorance. She was, prior to all this, a specialised support assistant for those with learning disabilities. I am well aware of the enormous stress placed on anyone who cares for someone with a brain injury in a home situation. It is an unenviable job, and one I would suggest that is only possible with a great deal of care and love for the person concerned. There are few rewards.Robin, the advocate, visited Sam at Jane’s house and a statement of Sam’s desires was taken. Sam made it known that he wanted to live with his wife, and that he wanted his brother out of his affairs. Jane’ lack of cooperation with care professionals led the Local Authority to commence proceedings in the Court of Protection and an interim order was made that Sam be returned to the facility. Jane duly complied with that order.
It is not hard to imagine that by this time the family must have imagined that Jane was the Devil’s spawn, she had not only married their darling son, she had had the nerve to imagine that she could love and care for him too.So the Local Authority, acting on behalf of Sam’s brother, began proceedings to have his marriage to Jane annulled. As Ms Raccoon incisively reminds us, there are a number of points to consider before making your mind up whether the marriage itself should be annulled:
1) Sam is under the auspices of the Court of Protection; that means that any financial benefits that might accrue to him as a result of his accidents will be held by the Court of Protection who will employ a specialist solicitor to oversee each and every bill paid on his behalf. The money would NOT be handed to his wife, even if they had been married for 50 years.The judgment to annul this marriage – to declare, in effect, that it never existed – is the very negation of love and a denial of the principal purpose of marriage – that man might not be alone. Mr Justice Bodey’s concerns himself with issues of bureacracy and possessions, and Jane’s unconditional, sacrificial commitment is rendered void. Sam, by order of this court, is now destined to live out the rest of his life alone. It is an outrage that he as not informed of the motives of his inquisitors: it is a far greater offence that he is not now permitted even to know that his marriage to Jane no longer exists. He will live not so much in a mystical union, but a fantasy isolation, because the Court of Protection determines that it must be so.
2) One of the first duties of such a specialist solicitor will be to draw up what is called a Statutory Will for Sam. Such a Will would reflect the fact that Sam has a son from his second marriage and make provision for him.
3) True, if such a statutory Will was made, and if Jane was still married to Sam, then provision would have to be made for her future, as well as bequests to his Mother and his brother – but we are talking about the situation if and when Sam dies. The decision that the marriage should be annulled has allegedly been taken ‘in his best interests’, which is only applicable whilst he is alive.
4) It is an unusual marriage; more ‘in sickness and in ill-health’ than anything more optimistic. Is that not a time when we need the comfort and security of a loving partner more than ever? What exactly is the effect of a marriage, now that we have discounted the financial aspect, that it is in Sam’s ‘best interests’ NOT to have?
5) In view of the fact that Sam has been in care more or less continuously since the marriage occurred, I am assuming that the marriage has not been consummated. It should be none of our business, but someone is bound to bring up non-consummation as a factor. As far as I can discern, non-consummation of a marriage has never been grounds for annulment except where that non-consummation has been wilful. Scarcely applicable in this case.
6) Much has been made of Sam’s answers to various questions as to who visited him, how often, and what provisions he thought it reasonable to make for his son. Since it would appear that Sam is unaware that these questions are being posed with a view to annulling his marriage, then I am reading his answers in line with his stated view that his family should not be aware of the marriage.
7) Whilst Sam is in hospital, Jane holds an automatic ‘right’ to visit him as his ‘next of kin’ – that would not be so should the marriage be annulled. Common law partners, girlfriends, and friends in general do not have automatic access to hospital patients. The ‘family’ would revert to legal ‘next of kin’ – given that they are now all at loggerheads, how likely is it that they would allow Jane to continue to visit Sam daily – or at all?
If questions had arisen in a church context about a person’s mental capacity to understand the meaning of marriage, clergy are not required (or qualified) to make a psychiatric assessment: it would be for a registrar to determine. Sam had satisfied the Registrar. He had satisfied his advocate. For the Church, this marriage would be considered valid, if no longer legal.
According to Canon Law, marriage rests on the intention of the parties to live together in a married state. Certainly, if either party were non compos mentis, that could be grounds for nullity. But what is the measure of this mental capacity? Is being 16 and so ‘too young’ and ‘not understanding the full implications of the undertakings’ valid grounds for nullity? What if one has no understanding of (say) ‘the future’? Could one really validly promise to love someone ‘till death us do part? How does one assess a person’s ‘frame of mind’? This is dangerous territory, for which of us could say we entirely understood what we were letting ourselves in for as we stood at the altar and made our vows before God and the assembled throng of witnesses?
If individuals have the power to form contracts or give assent to invasive surgery without parental consent, they ought to be able to marry. The nature of Sam’s mental incapacity is not such that he is forcibly sectioned.
Nullity – for Anglicans – is a considerably problematic area, not least because of the history of our church. For Roman Catholics it is usually based on ‘lack of due discretion’, and judged by a tribunal of canon lawyers. Their judgment then goes to a superior tribunal, for man may not easily put assunder that which God hath joined together. From the Book of Common Prayer of 1662:
The Bible teaches us that marriage is a gift of God in creation and a means of his grace, a holy mystery in which man and woman become one flesh. It is God's purpose that as husband and wife give themselves to each other in love throughout their lives, they shall be united in that love as Christ is united with his Church.This is the order of creation – God’s business. But increasingly in this country we are seeing the State via local authorities exercise their discretionary powers to act on behalf of ‘clients’, and justice cannot be seen to be done because the courts are secret and nothing may be reported in the media. There have been many apparently capricious and oppressive judgments for some families, reducing one party to a nervous wreck and another to penury.
Marriage is given that husband and wife may comfort and help each other, living faithfully together in need and in plenty, in sorrow and in joy. It is given that with delight and tenderness they may know each other in love and through the joy of their bodily union may strengthen the union of their hearts and lives. It is given as the foundation of family life in which children may be born and nurtured in accordance with God's will, to his praise and glory.
In marriage husband and wife belong to one another and they begin a new life together in the community. It is a way of life that all should honour and it must not be undertaken carelessly, lightly or selfishly but reverently, responsibly and after serious thought.
As for Sam and Jane, the secular state may not recognise their marriage, but it is an exclusive union of love between a man and a woman for mutual companionship ‘for better, for worse, for richer for poorer, in sickness and in health’. Where a vicar is content with the mental capacity of a couple and duly solemnises their marriage, it remains a marriage in the eyes of God and the Church even if some secular doctor later declares himself not content. Indeed, there are some who might validly question Jane’s mental state, having voluntarily entered into a union which seems to guarantee her an awful lot more of ‘worse’, ‘poorer’ and ‘sickness’ than ‘better’, ‘richer’ and ‘health’. What sane person would desire such a state?
Moreover, Canon Law specifically guards against covert annulment: both parties have the right to be informed and the right of appeal against the judgment. But not so under the Court of Protection. The right to be informed is denied, and the enormous costs of appeal are prohibitive. So here is an example of the Church ensuring and dispensing a higher degree of natural justice than the State, while the State determines that marriage consists of nothing more than banal bureaucracy. Since the Court of Protection operates under the aegis of the Crown, and since Her Majesty is Supreme Governor of the Church of England, perhaps we should assist Jane to take this matter higher?