In a landmark decision, the Court of Appeal has upheld a potentially vulnerable woman’s right to choose for herself whether she should live with her sex offender husband. The court ruled that preventing the woman from making her own decision, however unwise, would be an unwarranted interference with her personal autonomy.
The woman, who has mild learning disabilities and was referred to as ‘PC’, began seeing the man – ‘NC’ – before he was convicted and sentenced to a lengthy term of imprisonment for grave sex offences. Despite his crimes, PC stood by him and they married whilst he was in prison.
With his release imminent, City of York Council applied to the Court of Protection and a family judge ruled that it was in PC’s best interests to undergo a phased transition before being allowed to resume cohabitation with NC. The court also authorised social workers to separate the couple if they perceived an imminent and serious threat to PC's welfare.
However, in upholding PC’s challenge to that decision, the court of Appeal ruled that, as she was agreed to have the mental capacity to marry, she also had the right to decide for herself whether to live with her husband.
Lord Justice McFarlane said: "I well understand that all the responsible professionals take the view that it would be extremely unwise for PC to cohabit with her husband. But adult autonomy is such that people are free to make unwise decisions, provided that they have the capacity to decide.
“If PC has capacity to marry she must be taken to have capacity to decide to perform the terms of the marriage contract. Any finding to the contrary required clear and cogent evidence. Such evidence was lacking in the present case and the finding that PC was unable to make this decision was simply not open to the judge."
The judge, who was sitting with Lords Justice Richards and Lewison, added: "Any court would be bound to entertain very significant concerns at the prospect of any woman going to set up home with NC. Looked at objectively, through the eyes of experienced professionals, NC clearly presents a significant risk to any woman who enters into a close relationship with him. There is therefore an understandable and justified professional concern to protect a potentially vulnerable woman who has formed a close relationship with NC".
However, he ruled: "There may be many women who are seen to be in relationships with men regarded by professionals as predatory sexual offenders. The Court of Protection does not have jurisdiction to act to 'protect' these women if they do not lack the mental capacity to decide whether or not to be, or continue to be, in such a relationship.
"The individual's decision may be said to be 'against the better judgment' of the women concerned, but the point is that, unless they lack mental capacity to make that judgement, it is against their judgment. It is a judgment that they are entitled to make. The law respects their autonomy so to decide and the Court of Protection has no jurisdiction to intervene".
The judge concluded: "There is a space between an unwise decision and one which an individual does not have the mental capacity to take…it is important to respect that space, and to ensure that it is preserved, for it is within that space that an individual's autonomy operates."