By: Clare Ciborowska


Capacity to engage in sexual relations: the relevance of the partner’s consent

26 November 2021 by

A Local Authority (Respondent) v JB (by his Litigation Friend, the Official Solicitor) (Appellant) – UKSC 2020/0133 Court of Appeal (Civil Division)

The Supreme Court has upheld the Court of Appeal’s decision that to have capacity to engage in sexual relations, a person needs to be able to understand that their sexual partner must have the capacity to consent to the sexual activity and must, in fact, consent before and during the sexual activity.

The appellant, JB, is a 37 year-old single man with a complex diagnosis of autistic spectrum disorder combined with impaired cognition. He has a complex diagnosis of autistic spectrum disorder (Asperger’s syndrome) combined with impaired cognition as a result of suffering significant brain damage from epilepsy.

JB has expressed a strong desire to have a girlfriend and engage in sexual relations. Part of JB’s diagnosis of Asperger’s syndrome caused him to be

…obsessionally fixated on a particular woman, sending inappropriate sexual messages, inappropriate touching, and targeting the vulnerable

His previous behaviour towards women has led the respondent local authority to conclude that he cannot safely have unsupervised contact with them. JB had argued in the Court of that he had capacity to consent to sexual relations in circumstances where the expert evidence had found that JB understood the mechanics of sexual acts and the risks of pregnancy and sexually transmitted disease but that his ‘understanding of consent’ was lacking.

The outcome for JB, if he was found to lack capacity to make decisions in respect of sexual relations, would be that he would be deprived of all sexual relations and that no other person could consent on his behalf (S27(1)(b) Mental Capacity Act 2005(MCA).

JB was successful at first instance in the Court of Protection, but the Court of Appeal reversed the decision and found in favour of the Local Authority. On further appeal to the Supreme Court the court agreed with the Court of Appeal the result being that JB did, in fact, lack capacity.


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Local authorities and the duty to consult with parents

16 April 2013 by

126415R (on the application of H) v Kingston Upon Hull City Council & KS, AS, SS, TS and FS (Interested Parties) [2013] EWHC 388 (Admin) read judgment

This was a successful claim for judicial review brought by a mother in care proceedings in respect of her two children who were removed from the care of the paternal grandparents. To that extent, it is a first. It concerns the duty on the Local Authority to consult with parents when an Interim Care Order is in place.

The claim raised two points. The first concerned whether it was permissible to bring a claim for JR when there were ongoing care proceedings and secondly the extent of the Local Authority’s duty to consult with parents when an ICO is in force. As to the latter point, there were two decisions that were challenged by the mother. The first was a decision taken on 31st January 2013 and the second concerned a decision taken on 1st February 2013 both concerning the placement of her children under the ICO.

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Child’s welfare is paramount in contact dispute

16 March 2012 by

A v Band C [2012] EWCA Civ 285    – read judgment 

In a case concerning a lesbian couple and a known biological father, Court of Appeal reconfirms approach when dealing with cases under the Children Act 1989 – the child’s welfare is paramount.

Background

This case concerned an application by a biological father for contact with his son who was living with his mother and his mother’s long-term lesbian partner. The three adults in the case had been friends for many years and indeed the father had married the mother before the child was born in an attempt to placate the mother’s family who were deeply religious. It was accepted that this was a marriage of convenience and as a result the father acquired parental responsibility for the child.
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Discrimination at London’s first gay pub

17 January 2011 by

In its heyday

Lisboa v. Realpubs Ltd & Ors [2011] UKEAT 0224_10_1101 (11 January 2011) – Read judgment

The Employment Appeals Tribunal (EAT) has ruled that a well-known gay pub’s strategy to encourage straight customers led to gay customers being treated less favourably, meaning that the a gay employee was forced to resign.

The policies included seating straight customers at the front of the pub where they would be most visible to passers by. The Claimant was an employee of the well-known London pub the Coleherne. The Coleherne was thought to be the city’s first ‘gay pub’ and had been operating as such for the past forty years, but in September 2008 reopened as a gastro-pub, The Pembroke.

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War crimes arrest warrant law to change

7 December 2010 by


Tzipi Livni

Updated | A new bill which seeks to reform the powers of the police also seeks to make it harder to issue private arrest warrants for universal jurisdiction offences, such as war crimes, torture and hostage taking,

The controversial change would mean that they can only be issued where there is a reasonable prospect of a successful prosecution (see our previous post).

The Police Reform and Social Responsibility Bill has now started its passage through Parliament, following its introduction to the House of Commons on 30 November 2010.


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