A damages claim, a misreported case and more

Family Law|September 1st 2017

A week in family law

I want to start with a case that illustrates the breadth of matters dealt with by the family courts, and also the way in which the courts help to protect the vulnerable. The case, CH v A Metropolitan Council, was heard in July, but has only recently been reported. It concerned a £10,000 damages award to a man with Down’s Syndrome, over delays in the provision of sex education. The award was approved by Judge Sir Mark Hedley in the Court of Protection. The man was married in 2010 and enjoyed normal conjugal relations with his wife until March 2015, when the couple sought fertility treatment and a consultant psychologist concluded that he lacked capacity to consent to sexual relationships. His wife was then told not to have sex with him, because his lack of capacity to consent would mean she would be committing an offence. The consultant psychologist said the man needed a course of sex education to achieve the necessary capacity, but “for reasons that have never been satisfactorily explained, the local authority failed to implement that advice despite requests and protracted correspondence”. The man’s sister then obtained an order from the Court of Protection and the course finally began in June 2016. It was successfully completed, with the couple resuming normal relations in May 2017.

Giving judgment Sir Mark Hedley commented:

“This case is unusual; indeed thus far it may be unique in being applied to a settled, monogamous and exclusive married relationship. In those rare cases where the courts have made declarations of incapacity to consent to sexual relations, they have generally been cases of restraining sexual disinhibition to protect from abuse or the serious likelihood of abuse. However, logically the question of capacity must apply also to married relations and the criminal law makes no distinction between settled relations and sexual disinhibition or indeed between sexual relations within or outside marriage. Society’s entirely proper concern to protect those who are particularly vulnerable may lead to surprising, perhaps even unforeseen consequences. Such, however, may be the price of protection for all.”

The problem of the media getting the wrong end of the stick (whether mistakenly or not) was once more demonstrated this week, in the case of the white ‘Christian girl’ who was reportedly placed by Tower Hamlets council with Muslim foster parents, who spoke Arabic. That report, however, turned out to be somewhat less than accurate, as it transpired that the child had actually been placed with “an English-speaking family of mixed race”, but only as a temporary measure until a more appropriate placement could be found. In fact the child has now been placed with her maternal grandmother, Her Honour Judge Sapnara making it quite clear that this decision was made “as a result of the application of the relevant law to the evidence now available to the court and not as a result of any influence arising out of media reports.” Needless to say, Tower Hamlets were not impressed by the media’s inaccurate reporting of the case. I agree – it is particularly despicable that the media should misreport a case involving a child, and even publish photographs that could identify her, in order to make a political point.

Former Conservative cabinet minister Iain Duncan Smith has warned the government not to cut funding for relationship counselling. He claims that the government has asked civil servants to draw up plans to cut the existing £10 million funding going to marriage guidance and other relationship counselling. He says that family breakdown is costing the country at least £48 billion a year, so the cutting of funding would be a false economy. Whilst I am no supporter of IDS, I actually agree that it would be a pity if couples were no longer able to access marriage and relationship support, although I wonder just what effect the funding cut would actually have upon the cost of family breakdown – I suspect not a lot.

And finally, a study has revealed that men are now ‘marrying up’ more than women, as highly educated single women outnumber unmarried men with a similar level of education. As a result, women are more likely to marry a man who has fewer qualifications than she does and will consequently earn less than she does.  All of which, say the researchers, is good news for the men, as the trend has led to a faster improvement in their standard of living.

With that, I’m off to find a highly educated woman. Have a good weekend.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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