Husband fails in bid to have mentally disabled wife returned

Family|December 19th 2014

A man in a polygamous marriage has failed in a bid to have one of his two wives returned to his home in what must be one of the most appalling cases I have ever read.

Sitting in the Court of Protection, Mr Justice Mostyn was asked to rule on whether or not the woman, who has severe learning difficulties, should be returned to her husband after she was placed in care by her local authority.

Referred to as ‘TB, the woman, of Bangladeshi origin, has a mental age of four and was taken to a care facility by the London Borough of Tower Hamlets under the Mental Capacity Act 2005. Her husband of 18 years applied for her return.

The man, who was TB’s cousin, had since also married another cousin of hers in a polygamous relationship that was “valid under the laws of Islam but is completely invalid under the laws of England and Wales” said the Judge.

The second wife was admitted to the UK on a six month visa which she has subsequently overstayed.

In his ruling, Mr Justice Mostyn was very critical of the husband, referred to as ‘SA’. All four of the couple’s children had been taken into local authority care because the mother was unable to care for them due to her mental disabilities. Impregnating his wife had been “heartless” said the judge, “when he must have known that the baby would be removed instantly on birth.” There were allegations of violence towards her too.

TB’s learning difficulties meant that she had no understanding of sex, the Judge continued, and therefore had no capacity to consent.

“The evidence clearly shows that TB has barely an inkling of the health risks involved. She was unable to link sex to pregnancy. Indeed she had virtually no idea how her babies came to be in her tummy (as she put it).”

Nevertheless, the man felt entitled to sexual relations with TB.

Society now views the idea that a man could force sex on his wife as one of “those barbarous relics”, declared Mr Justice Mostyn.

Returning home would not be in TB’s best interests, the judge concluded, despite the fact that she had expressed a wish to do so. The right to a family life is a “qualified right” said the judge.

Nevertheless, changes were needed in relation to TB’s current placement, because she was not prospering there. The Judge noted that she “seems to lead a rather isolated and lonely life, spending hours lying on the sofa watching TV.”

He ordered a new team of carers, or an alternative placement altogether in order to improve her social life and integration into her community.He

She would be allowed to see her husband with support once a fortnight for one hour at a time.

The case also provides an insight into the legal concept of ‘deprivation of liberty‘, something which is beyond the scope of this blog post but is well worth a read.

Read the judgement here.

Back in January, the Court of Protection dealti with very similar case.  YLA v PM and MZ concerned a woman of a similar age with a similar level of mental disability. She had taken part in no less than three arranged marriages – the first two failed but in the third, her new husband had entered the UK on a student visa and there was evidence to suggest that the marriage had been staged to allow the man to remain in the UK, despite the woman’s apparent inability to consent. A baby was born and the mother was predictably unable to properly care for the child.

Author: Stowe Family Law

Comment(1)

  1. Andrew says:

    I am troubled by these passages:

    SSB is also her first cousin and her husband has taken her as a polygamous second wife. That marriage is valid under the laws of Islam but is completely invalid under the laws of England and Wales. As I will explain, by virtue of that second marriage . . .

    To add to the complications, in the summer of 2011, as I have mentioned, SA married his first cousin SSB

    It would have been better and sent out a clearer signal if Mostyn J had written:

    SSB is also her first cousin and her husband has purported to marry her as a polygamous second wife. Such a “marriage” is valid by the tenets of Islam but is void by the laws of England and Wales. As I will explain, by virtue of that second “marriage” . . .

    To add to the complications, in the summer of 2011, as I have mentioned, SA purported to marry his first cousin SSB

    If as appears SA is domiciled here or the ceremony took place here that is the correct position. If it was informal and not pursuant to the Marriage Acts it is not even a void marriage: it is a non-marriage. I am horrified to hear that SSB was given even limited permission to come here on the strength of such a “marriage”.

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