Community Care law update

Opposing cultural views as to how best to protect vulnerable adults were at the heart of the Court of Appeal’s decision in City of Westminster Social and Community Services Department v C and another [2008] EWCA Civ 198, [2008] All ER (D) 276 (Mar).

The case concerned IC, a 27-year-old British national whose family were of Bangladeshi Muslim origin. He had severe learning disabilities as well as autism and was held by the court to function at the level of an average three-year-old. IC’s family wanted him to marry a Bangladeshi woman.

Referring to IC, the Court of Appeal said that “the role of marriage in the life of one so handicapped is inconceivable in our society”. Viewed from the perspective of IC’s parents, however, matters were quite different. They viewed marriage as a means of guaranteeing IC’s long-term care.

IC’s local authority, , became aware that IC had married a Bangladeshi national in September 2006. This occurred via a telephone ceremony said to have been held in accordance with Islamic/Bangladeshi law in which IC participated in , with his consent being given on his behalf by a “marriage guardian”, and his bride participated in . IC’s marriage was valid under Bangladeshi law. initiated proceedings under the High Court’s inherent jurisdiction in relation to vulnerable adults. A key issue was the validity, or otherwise, of IC’s marriage under domestic law.

The Court of Appeal held that IC’s marriage was not to be recognised under the law of and . It said that “not every marriage valid according to the law of some friendly foreign state is entitled to recognition in this jurisdiction”. The Court went on:

“[The parents’] engineering of the telephonic marriage is potentially if not actually abusive of IC. It is the duty of the court to protect IC from that potential abuse. The refusal of recognition of the marriage is an essential foundation of that protection.”

So, what does it mean for a marriage not to be entitled to “recognition” under domestic law? This was addressed by the High Court in X City Council v MB, NB and MAB (by his Litigation Friend the Official Solicitor) [2006] EWHC 168 (Fam) where it said that:

“The short point is that [B’s] incapacity to marry in the eyes of English law means that no marriage entered into by him, either in this country or abroad, will be recognised in English law. And if it is not recognised in English law it will not be recognised by English public authorities.”

The most obvious public authority that will be called upon to refuse to recognise the marriage dealt with in the present case is the Immigration Service. IC’s bride has applied for permission to enter the under those provisions of the Immigration Rules which deal with spousal entry. As a result of the court’s ruling in this case, she will not be treated as if she were married to IC for the purposes of the rules.