Case summary – capacity, best interests and Court of Protection’s powers

Hannah Taylor, Bevan Brittan

The case of CH v A Metropolitan Council [2017] EWCOP 12 was a highly unusual case in which the court was asked to approve a settlement by the local authority to the claimant, who had Downs Syndrome. The claim for damages arose after the local authority assessed the claimant as lacking capacity to consent to sexual relations with his wife and that such relations could only be continued once he had undertaken a course of sex education.


The matter was an application on behalf of the claimant for approval of a proposed settlement of his claim against a local authority. In substance, the claim was for damages pursuant to the Human Rights Act 1998, however, the claim arose out of proceedings in the Court of Protection.

The claimant was a protected party (a declaration having been made that he lacked capacity to litigate) under CPR 21.10, so that any proposed settlement required the approval of the Court.

The Court of Protection proceedings related to the claimant’s capacity to consent to sexual relations; they ended with a declaration that the claimant had capacity to consent to this. In the intervening period between the claimant being assessed as lacking capacity and being declared to have capacity his partner was informed by the local authority to abstain from sexual intercourse with the claimant. She moved into a separate bedroom of the home in which they both lived and significantly reduced any physical expressions of affection towards him so as not ‘to lead him on’, resulting in a period of abstinence of over two years.

A letter before action was then sent to the local authority on behalf of the claimant alleging a breach of the claimant’s Article 8 rights. The essence of the claim was the delay of not less than 12 months of the local authority implementing an advised programme of sex education following their assessment that he lacked capacity to consent to sexual relations.

The local authority made a settlement offer which included (in addition to paying the claimant’s costs) the local authority making a formal apology to the claimant for the delay from January 2015 to June 2016 in providing him with the sex education to which he was entitled and paying him the sum of £10,000 as a result of the delay. The court concluded that the proposed settlement offer was in the claimant’s best interests and authorised the Official Solicitor (as the claimant’s litigation friend) to accept the offer on behalf of the claimant.


CH was 38 and had been born suffering from Downs Syndrome and had an associated learning difficulty. In 2010, he married WH and they lived together since then in CH’s parent’s home. They enjoyed normal conjugal relations until 27 March 2015.

The relevant chronology:

  • Late 2014/early 2015 – a consultant psychologist, on behalf of the local authority, assessed CH and concluded that he lacked capacity to consent to sexual relationships. The assessment had come about because CH and WH had sought fertility treatment;
  • 27 March 2015 – CH and WH were informed of the consultant psychologist’s assessment conclusion. WH was advised that she must abstain from sexual intercourse with CH as that would, given CH’s lack of capacity to consent, be an offence under the Sexual Offences Act 2003.
  • March 2015 – CH and WH complied and WH moved into a separate bedroom. WH significantly reduced any physical expressions of affection in order not to lead CH on. The consultant psychologist advised in his conclusions that CH needed a course of sex education to assist him to achieve the necessary capacity.
  • The local authority (for reasons which were never been satisfactorily explained) failed to implement the advice of the consultant psychologist despite requests and protracted correspondence.
  • February 2016 – CH’s sister, SH, acting as his litigation friend, issued proceedings in the Court of Protection. She requested an order of the court to implement the original psychological advice.
  • 27 June 2016 – the relevant course of sexual education for CH began and was completed within the expected time scale.
  • Early 2017 – a single jointly-instructed court expert consultant psychiatrist advised that CH should undergo further sexual education and this was delivered by the same sexual therapist.
  • 19 March 2017 – the consultant psychiatrist advised that CH now had capacity to consent to sexual relations; that view was accepted by the local authority.
  • 2 May 2017 – Cobb J gave effect to this by way of an order. At this point, CH and WH were entitled to and did resume a normal conjugal relationship which has subsisted.

Practical Impact

The case was unusual and somewhat unique with regard to the issues at play (in relation to capacity to consent to sexual relations) being applied to a settled, monogamous and exclusive married relationship.

Sir Mark Hedley commented that in the rare cases which the courts have had to make declarations of incapacity to consent to sexual relations, they have generally been cases of restraining sexual disinhibition to protect from abuse or the serious likelihood of abuse. He said, however, that logically the question of capacity must apply also to married relations and that the criminal law makes no distinction between settled relations and sexual disinhibition or indeed between sexual relations within or outside marriage. He highlighted that many would think that no couple should have had to undergo a highly intrusive move upon their personal privacy yet he reiterated that such a move was (in its essentials) entirely lawful and properly motivated. He commented that, perhaps, it was part of the inevitable price that must be paid to have a regime of effective safeguarding.

Key Findings

The essence of this claim was the local authority’s delay in implementing the advised programme of sexual education for CH. This was the period between 27 March 2015, when conjugal relations were required to cease (although the lack of capacity had been established in January 2015) and the start of CH’s first sexual education programme on 27 June 2016. Given that the local authority would have needed some time to set up the programme, the actionable delay over all was one of not less than 12 months.

With regard to the appropriate quantum of damages for CH’s deprivation (for at least 12 months) of normal conjugal relations with WH, Sir Mark Hedley commented that the impact at the time must have been profound not only for the loss of sexual relations but for two further matters peculiar to CH:

  1. CH would have been unable to understand why what was happening to him should have been so; and
  2. In order, as WH put it, ‘not to lead him on’ WH understandably and foreseeably, withdrew to another bedroom and withheld much physical affection.


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