Determining capacity for sex with her abuser

By Celia Kitzinger, 25th July 2022

UPDATE: We’re sad to learn (from Mr Justice Poole on Thursday 27th October 2022) that the woman at the centre of this case (KF) has recently died.

This is a desperately sad story about a woman (KF) who is pleading to have intimate unsupervised contact with her abuser before she dies[1].  

She’s been diagnosed with triple negative breast cancer which has spread to her bones, liver and lungs.  Her life-expectancy is somewhere between a matter of months and (at the very most) two years.

Her abuser ( W ) has entered a guilty plea and is due to be sentenced on 29th July 2022. He’s likely to be facing a custodial sentence, and there’s a realistic chance that by the time he’s released from prison, she’ll have died from her cancer. In light of these facts, she’s “expressed a very strong wish to have unsupervised overnight contact with him” before 29th July 2022.

The sexual assault W committed against KF was very serious.  Joseph O’Brien described it as “horrific”.  It resulted in serious internal damage requiring hospital admission, surgery and a blood transfusion.  More broadly, W is said to have been violent and abusive towards KF and to have engaged in “coercive control”. There’s also a history of concern about his financial abuse of her.

Initially KF requested contact with W at the flat where she and W lived – and from which she was removed by court order on 23rd February 2022.  She’s willing, alternatively, to have that contact at a hotel.

Since she was removed from their flat, contact between the two “has taken place sporadically”  There was mention of “concern about things said during telephone and video contact”. 

According to Joseph O’Brien QC (acting for KF via her litigation friend), “it is a fact in this case that it may well be that that contact will be intimate and could lead to sexual activity between her and WBoth KF and W are adamant that they would object to very close supervision of that contact.  And so, in the light of [KF’s] expressed wish, this application was made on 8th July for the court to determine whether it’s in KF’s best interests to have unsupported unsupervised contact with W in the knowledge that could lead to sexual intimacy between them”. 

The case was heard before Mr Justice Poole on Wednesday 13th July 2022.  He was sitting in Teesside at the time, and brought the case with him – meaning that it was not (as would be usual for cases heard before Tier 3 judges) listed in the Royal Courts of Justice cause list[1]. I almost missed the opportunity to observe it as a result. It was listed for a 30 minute hearing, but actually lasted for around an hour and a quarter.

Capacity issues

KF is 34 and has a moderate learning disability (diagnosed in the 1990s).  She has been assessed by an experienced independent expert (Dr Laurence Mynors-Wallis) as lacking capacity to conduct proceedings, as well as to make decisions about where she lives, the care she receives, her contact with others, and her property and affairs. She does however have capacity to engage in sexual relations, on the basis of the test applied by the independent expert following the Supreme Court decision in Re JB.

According to Joseph O’Brien QC, “The case of JB in the Supreme Court was a bit of a watershed in terms of how we approached capacity to engage in sexual relations.  We’d regarded it as a decision-specific and act-specific test, but certainly not as a person-specific test.  There had been a chipping away over the years at the actual test.  So, pregnancy would not be relevant information if you had two 85-year-olds, and where certain relationships were monogamous the court was unwilling to say that the protected party needed to understand information on sexually transmissible disease,s when it was clear there was no risk of sex with other partners.”

Joseph O’Brien QC referred to §§72-74 of the judgment in Re JB to make the point that the court had recognised “that person-specific characteristics of a sexual partner could be relevant, and the court is not prepared to lay down when or how, because each case is truly fact-sensitive.

In this case, said Joseph O’Brien QC, the local authority has a significant concern that if W has sexual contact with KF, “there is a real risk that W may inflict physical harm on KF”.  

Joseph O’Brien QC pointed out that the independent expert who’d assessed KF as having capacity to engage in sex also said that “KF is not able to weigh up the reasonably foreseeable risks if she has contact with [W]”.  He suggested that must surely mean that in fact she lacks capacity to engage in sex, since that must be relevant information for the decision that needs to be made. 

O’Brien:  That must raise the real likelihood, bearing in mind the factual scenario, that this is relevant information for capacity to consent to sex.  As I say in my Position Statement, it’s difficult to see, in the facts of this case, how this could not be relevant information.

Judge: In terms of contact, at the moment the court’s position is not only a declaration that she lacks capacity concerning contact with others, but also that it’s not in her best interests to have contact with W save in a public place and supervised.  That being the position, isn’t that the end of the matter, if the court considers that best interests decision remains applicable? 

O’Brien: It would, My Lord, except that she has capacity to consent to sexual relations.  She wishes to exercise that capacitous right. The circumstances she faces are such that she’s saying that this may be her last chance to have intimate contact with W.  The local authority has not ruled that out, but is anxious as to whether that can be achieved without serious risk.

Judge:  There are no conditions on W’s bail?  I find that slightly surprising, that there are no restrictions on his contact with KF.

O’Brien:  Nothing like that appears on W’s bail.  So, the court’s available options are not restricted by the jurisdiction of the Crown Court.  The decision has to be taken by this court.

It was agreed that the independent expert should be asked to reconsider the question of KF’s capacity to engage in sex, given the specific facts of this case.  “If he changes his view that KF has capacity to enter into sexual relations, then in those circumstances the court is in a very different position from if she has capacity.  If she lacks capacity, there can be no intimate relations” (said Simon Batt, the solicitor for the local authority, Hull County Council).

The judge remarked that “KF is not able to weigh up the reasonably foreseeable consequences of contact with W, so it might be difficult to see how that could be different if the contact was sexual.

Without pre-judging what [the expert] will say,” said Simon Batt, “the writing may be on the wall, if I may put it that way”.

Advance plans

Given that time is tight (due to the sentencing and likely custodial sentence on 29th July 2022), contingency plans were put in place, in the event that the expert assessment continues to find that K has capacity for sexual relations.  

Discussions have already taken place about booking a hotel for KF and W “without prejudice to any decision, just so we’re not stymied, and we’ve had discussions about what the hotel needs to be told”.

The solicitor for the local authority (Simon Batt) said they would be content, given the circumstances, to fund the cost of a hotel room for the carers, and the cost of the carers themselves: “we’d require the carers to be awake throughout the night in case their assistance is required”. 

There was a question about whether W should be a party to this case.  I think it was agreed that he would be notified of the application and invited to join as a party.

The judge also made clear his willingness to speak with KF prior to the hearing.  “It’s very clear she wishes to discuss matters directly with you, and to ensure that her views and her reasoning behind those views are clear to the court,” said Simon Batt

The decision before the court

Joseph O’Brien summed up the dilemma before the court:

Many people would ask objectively why would anyone allow a woman in the circumstances of this case to have contact with the man who has inflicted this harm on her, four days before he’s sentenced for inflicting that harm.  There’s no doubt the risk is real.  But My Lord, you are dealing with someone facing the end of her life, and she is very clear about what she wants.”  (Joseph O’Brien)

The next hearing is listed for 10.30am on Tuesday 26th July 2022 before Mr Justice Poole in the Royal Courts of Justice, via MS Teams.  It will be heard in open court. The judgment has since been published: Hull City Council v KF [2022] EWCOP 33 (28 July 2022).

Celia Kitzinger is co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project. She tweets @kitzingercelia

[1] This was a “hidden” hearing, inaccessible to most members of the public who might have wished to observe it.  It was not in the Court of Protection list on CourtServe, nor did it appear in the Royal Courts of Justice Daily Cause list where hearings before Tier 3 judges usually appear. I found it because I was trawling through the court lists for the County Courts, knowing that important hearings are sometimes incorrectly listed there. And I found this (see photo) under the heading, “Teesside (Middlesbrough) Daily Cause”.   Nowhere does it say it’s a Court of Protection hearing.  I only recognised it as such because of the case number: I know that eight-digit numbers with no letters are characteristic of Court of Protection case numbers.  It was also impossible to read what time the hearing was listed for: the cut-off left hand margin is as it appeared on CourtServe (not my error).  I’m grateful to the staff at the Newcastle hub who spent time sorting this out so that I was able to observe the hearing, but this really shouldn’t be happening – and these hidden hearings happen repeatedly. Between a quarter and a half of all COP hearings each day do not appear in the COP list but are ‘hidden’ in the County Court lists instead. Note also that I have also not received Position Statements from the parties so have had to rely in this blog post solely on what I heard in court. Quotations are as accurate as I could make them, based on contemporaneous touch-typed notes, but they are unlikely to be entirely accurate.

From CourtServe, under the County Court list for Teesside (Middlesbrough) County Court

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