Tom Rainsbury on Capacity – A simple, straightforward test



The case of LB of Southwark v KA (Capacity to Marry) [2016] EWCOP 20 concerned a 29 year old man, KA, who had learning disabilities.

In 2014, concerns were raised that he was talking to himself, hoarding rubbish, and had a limited daily structure, unusual hand posturing, poor eating habits and personal hygiene. Assessments recorded that his family were trying to find a wife for him. At the time, it appeared that he had limited if any understanding of sexual activity or the meaning of marriage. His parents withdrew from and declined input from social services. Declarations were therefore sought that KA lacked capacity as to sexual relations, marriage, personal care and welfare.

The Court of Protection declared that KA had capacity.

With regards to sexual relations and marriage, he was on the ‘borderline’ of understanding in respect of some of the more refined evaluations. However, he had overall capacity on these matters. He had the necessary degree of understanding about the ‘mechanics of the act’. Although he did not understand the mechanics and duration of pregnancy, he saw it as a foreseeable consequence of sexual intercourse. He understood and retained the knowledge that illness was a possible consequence of sexual activity.


The decision emphasises two important aspects of the capacity assessment under s. 2 MCA 2005:

  1. Capacity is not concerned with happiness. Parker J concluded: ‘I do not know whether a marriage will truly bring happiness to KA. His disabilities will provide challenges for any wife, and they will be different for a wife who has capacity from one who lacks it. A marriage might lead to distress, conflict and misery for KA and his family, as opposed to enhancement of his life and of his personal autonomy. But it is not for me to weigh up the relative chances of finding a wife who is prepared to love and cherish KA with all his needs against that of finding one who is unequal to the task’.
  2. Capacity is a simple, straightforward test. The judge declined the invitation to ‘reconcile’ a number of authorities and formulate a more complete test, preferring to make her decision on the basis of the statute. Parker J explained: ‘One more decision may simply add more uncertainty, potential disagreement and burden on the judiciary in determining what is meant to be a simple, straightforward test. I have already had to wrestle with complex, subtle, intellectual and detailed arguments in this case, and no doubt there will be more to come in subsequent ones. My primary duty is to decide this case’.

Article by Tom Rainsbury.

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