In the case of Re W [2025] EWCOP 32 (T2), HHJ Farquhar considered the question of whether a 32-year-old woman, referred to in the judgment as W, had the capacity to a) engage in sexual relations, and b) enter into a marriage or civil partnership in circumstances where she was found to lack capacity to make decisions ‘about contact with others’.

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Laura Mannering, solicitor and partner at Edwards Duthie Shamash was instructed by the Official Solicitor to represent W in these proceedings.

Case Background: Capacity to Engage in Sexual Relations & Marry

W has learning difficulties and had been married in 2014. That marriage was subsequently found to be a forced marriage and W was found to have been a victim of abuse, including rape.

In September 2016, W was found by the Court of Protection to lack capacity to engage in sexual relations and to marry and orders were made in relation to the termination of the marriage.

Since 2018, W had been living in supported accommodation supported by the provider, Y. A care and support plan specified that W must inform Y of her activities but W was able to live fairly independently, including working a part time job, and accessing the community independently. W had consistently expressed her wish to be able to engage in sexual relations, but the history of her forced marriage caused the local authority to continue to have concerns about her capacity to make that decision.

In 2020, the local authority made a referral to request specialist support to help W understand the Court’s decision in respect of her capacity to consent to sexual relations, and to improve her understanding of sexual relationships. The outcome of the work was that those undertaking it considered that W had capacity to engage in sexual relations.

The local authority undertook its own assessment which concluded that W lacked capacity to engage in sexual relations. An independent expert psychiatrist, Dr Camden-Smith, was then instructed to prepare a report for the court. In her report, Dr Camden-Smith concluded that W had capacity to engage in sexual relations and marry but lacked capacity to make decisions about contact with others as W was a vulnerable adult who may therefore require protection under the inherent jurisdiction.

In 2025, the local authority made an application to the court to revisit the decisions made in 2016 given that there was now a dispute in the evidence as to W’s capacity.

The court was asked to determine whether W had acquired capacity to:

1. Engage in sexual relations and;
2. Enter into a marriage or civil partnership.

Mental Capacity Act 2005: What The Law States

HHJ Farquhar considered the statutory framework under the Mental Capacity Act 2005, which provides that every adult is presumed to have capacity, and that to be found to lack capacity a person must be unable to make a particular decision because of an impairment or disturbance in the functioning of the brain or mind.

The court also applied the principles set out in the leading decision in A Local Authority v JB [2021] UKSC 52 for capacity to engage in sexual relations, which includes:

1. The sexual nature and character of the intimate relationship including the mechanics of a sexual act;
2. The importance of mutual consent which allows the other person who has capacity to consent to the sexual activity and such that, P can consent to having sexual relations;
3. And the potential health risks involved, particularly sexually transmitted and transmissible infections however these risks can be reduced by using protection.

The court also referred to the principles set out in Local Authority A v ZZ [2024] EWCOP 21, for the test to assess someone’s capacity to marry or form a civil partnership. Under this test, capacity to marry is “status-specific” (not person-specific), the individual must understand the broad nature of the marriage contract, the duties and responsibilities normally associated with a marriage, and must have capacity to consent to sexual relations. Importantly, the “wisdom” of the decision – whether marriage is a good or bad choice – is irrelevant.

In this judgment, HHJ Farquhar reviewed the differences in the conclusions of the capacity assessments undertaken in the matter.

He accepted the opinion of the independent expert that W has capacity to engage in sexual relations and to marry, but acknowledged that W remains “vulnerable” – described as “sensitive to the wishes of others”. Ultimately, though, he found that this did not lead to a conclusion that W lacked capacity. The judge drew a clear distinction between the conclusion that W lacked capacity to make decisions about her contact with others and her capacity to engage in sexual relations. He noted that the risks can be managed through appropriate care planning to safeguard W, without overriding an individual’s capacity to consent to sexual relations.

He also emphasised that the law must not be paternalistic and that the bar must not be set higher for assessing capacity to make a decision about engaging in sexual relations for those individuals with a mental impairment noting ‘Paternalism has no place; protection of individual autonomy is the magnetic north of this court’.

Capacity to Engage in Sexual Relations & Marry: The Conclusion

The decision in Re W [2025] EWCOP 32 (T2) is a clear example of the delicate balancing exercise the court must undertake when seeking to promote an individual’s autonomy and protecting those individuals who are vulnerable and may need additional support.

It is important to recognise that a person with a learning disability may have, and did have, in this case, the capacity to make decisions about sexual relations and marriage, while also requiring appropriate support and safeguards to support them in respect of any decisions that they may not have capacity to make. In this case this was in respect of W’s contact with others.

The judgment underscores the importance of the statutory presumption of capacity, and affirms that each decision must be assessed separately, and illustrates that an individual can be supported to gain, regain or retain capacity to make a decision.

It also adds to the line of developing case law which addresses how professionals can support individuals who have been found to lack capacity to make decisions about contact with others, but have capacity to engage in sexual relations, in circumstances where those areas of decision making are closely interlinked.

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