The right to marry and found a family may be at risk when staff try and prevent someone from marrying even though they have the capacity to make the decision themselves.
21-year-old E had hydrocephalus and spina bifida and was described as functioning “at the level of a 13 year old” and being “vulnerable to exploitation”. E wanted to marry S, a 37-year-old man with a history of sexually violent crimes. The local authority wanted doctors to assess whether E had capacity to marry S, specifically. E’s solicitors argued that this was an interference with her right to marry as the only test should be whether she had capacity to consent to marry in general; if she did, it did not matter who she chose to marry and whether they were a “suitable” partner. The Court agreed, ordering experts to just look at whether E had capacity to consent to marriage in general, saying, “there are many people in our society who may be of limited or borderline capacity but whose lives are immensely enriched by marriage. We must be careful not to set the test of capacity to marry too high, lest it operate as an unfair, unnecessary and indeed discriminatory bar against the mentally disabled.”
Sheffield City Council v E