The Judge in your Bedroom

Much outrage was occasioned by a reported judicial comment about a Court of Protection case which came into the public domain earlier this month, concerning a married couple.

The case is being heard by a High Court judge, Mr Justice Hayden, who sits in the Family Division. It concerned a wife with learning difficulties (an elastic term), who was said to be losing her capacity to consent to intercourse with her lawfully married spouse.

Hayden J. outlined the issues which the court was being asked to grapple with, as follows:

I cannot think of any more obviously fundamental human right than the right of a man to have sex with his wife – and the right of the state to monitor that.

I think he is entitled to have it properly argued.

Woke folk were exercised by his first proposition. Speaking for myself, it’s the second part that causes me more concern. The right of the state to monitor the marital bedroom?

Blinkin’ ‘eck! What could possibly go wrong?

The word “right” is inapposite when applied to the state, of course. I assume it was a slip of the tongue. The correct word is “power”. The stark reality in these cases is that the state’s power to intervene in private life is virtually untrammelled, in practice. It is, ultimately, a matter of judicial discretion.

And that is a rather disturbing thought. The Court of Protection (CoP) is a creation of statute, namely, the Mental Capacity Act 2005. It looks after adults who lack mental capacity. It can take decisions on their behalf in relation to both property and welfare matters.

It is the successor to the nineteenth-century Court of Lunacy. In earlier times, the Crown acted as “parent” to those unable to care for themselves, in what was known as the High Court’s inherent or parens patriae jurisdiction.

As Sir Mark Hedley, a humane and highly experienced retired judge who is still providing sterling service in the CoP, said in a 2017 case:

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.

But as Professor Philip Jenkins has explained, to protect is also to control and to regulate.

The cases to date show a pretty determined effort by the state – both courts and local authorities – to micro-manage the lives of disabled adults, according to the dictates of “experts” – sometimes with disastrous results, as in the notorious case of LC, a case in which Hayden J was also involved.

Read this. I dare you not to feel incredulous:

In broad terms, the plan proposed that LC should have unsupervised contact with men because, at that time, it was thought that she had become either entirely or largely estranged from her husband. Accordingly, it was considered that contact with men should be in accordance with her wishes but protective of her safety. This, it was thought, could be achieved by permitting her to have unsupervised contact time at home.

This plan has been subject to significant public critical comment. It is plain that a number of men took advantage of LC under these arrangements, compromising her safety and her dignity and imposing what, to my mind was, with the enormous benefit of hindsight, an intolerable burden on those supervising her. Thus, the case came, entirely properly, back to court.

What a car crash of a case. Note: Hayden J. was left to pick up the pieces after the above embarrassing and extraordinary state “intervention” was put in place by a county court judge (i.e. one rung below in the judicial hierarchy).

Now, it may come as a surprise to some that people with learning difficulties can marry, but the threshold for capacity to consent to marriage is actually set fairly low. Persons of limited intellect can lawfully marry, therefore. But they need to have a basic understanding of what commitments the marriage contract – for it is a contract – entails.

And as some commentators have pointed out, the right to marry is recognised as a fundamental human right. Thus, Article 12 of the European Convention on Human Rights and Fundamental Freedoms provides:

Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right

Similarly, the capacity to consent to sex is also set fairly low. You don’t need a degree, or O-levels. You just need a basic understanding of the act and its consequences, as well as of the risks that it can involve, ranging from sexually-transmitted diseases to pregnancy.

This comparatively laissez-faire approach is not without its problems. As in a case I saw once, where marriage with a woman with learning disabilities led to four (yes, four) similarly disabled children. All had to be taken into care because their mother was unable to look after them.

And the question can fairly be raised as to whether that particular marriage should ever have been permitted in the first place. But it had been “contracted” abroad. Well, of course it had.

And the husband’s response was simply to import a bride No. 2, disguised as a “carer” for his wife, whom he then impregnated!

That case gave rise to all sorts of knotty issues. First, the wife proper was put on long-term contraception, to stop her having any more disabled children. But the powers that be decided that it was all right for her to continue to have sex with her husband, on the ground that she enjoyed it.

When the case pitched up before Mr Justice Mostyn for trial, he fixed counsel with an eagle eye and asked:

Would you say that if she were a nine year old?

Well, quite. There are limits. So the court decided that the wife should live separately from her husband. Who promptly lost interest in his new partner and declared that she should return to her native land, pregnant and disgraced.

The look on this young woman’s face in court, as the interpreter explained that he was abandoning her to the whim of the immigration authorities, was a sight to behold.

The problem in this particular case, as you will by now have gathered, was that the husband was amoral. He had run rings around the authorities, claiming benefits as the carer for his massively disabled family, and was evidently expecting to carry on his merry way.

I told his counsel that, in my view, his client was at least potentially liable for infringing the criminal law, by having sex with someone who was, on the face of it, not able to consent. But there was not the slightest prospect of this man facing any criminal investigation.

So, these cases can be messy. I have no idea what the full facts are in the case that Hayden J. is having to deal with, though they sound a lot less extreme than the other scenarios I have discussed above. I wish him luck.