Successful appeal against Court of Protection order restricting contact between husband and wife

01.05.13 |

The Court of Appeal has allowed the appeal of PC against an order of the Court of Protection that she lacked capacity to resume cohabitation with her husband, PC, in an important judgment that reaffirms the right of autonomy of learning disabled persons to make choices that others consider unwise. PC was represented by Paul Bowen QC leading Joseph O'Brien, instructed by Langleys Solicitors.


PC has a moderate learning disability but lives independently in the community. Until 2009 she had lived with NC, who was later convicted of serious sexual offences and imprisoned. PC married NC while he was in prison and the couple wished to resume cohabitation upon his release. The local authority, City of York Council, sought to restrain them from doing so and obtained declarations in the Court of Protection that NC lacked capacity to do so. In overturning that declaration the Court of Appeal held that the judge of the Court of Protection had reached his decision without a proper evidential foundation. Lord Justice McFarlane, who gave the leading speech, observed: "Mr Bowen correctly submits that there is a space between an unwise decision and one which an individual does not have the mental capacity to take and he powerfully argues that 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." Lord Justice Lewison, in his concurring speech, stated: "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. Like McFarlane LJ I do not consider that there was a solid evidential foundation on which the judge's decision can rest. We must leave PC free to make her own decision, and hope that everything turns out well in the end."


Full judgment is available here

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