A Local Authority v AC (Consent to Marriage) [2026]: considering capacity to consent to marriage and the interplay between the criminal courts and the Court of Protection

A link to this judgment is here: A Local Authority -v- AC and others (Consent to Marriage) - Courts and Tribunals Judiciary

Background 

AC was in her twenties with diagnoses including a moderate learning disability and a genetic condition known as microduplication. The full background to this case is outlined in paragraphs 1-5 of this judgment.

AC’s capacity to marry was relevant because she had undertaken an Islamic marriage in Pakistan with her family. 

When AC and her family returned to England, her family were arrested for allegedly subjecting her to a ‘forced marriage’, a criminal offence outlined in Section 121 of the Anti-Social Behaviour, Crime and Policing Act 2014, which provides (emphasis added): 

“(1)A person commits an offence under the law of England and Wales if he or she— 

(a) uses violence, threats or any other form of coercion for the purpose of causing another person to enter into a marriage, and 

(b) believes, or ought reasonably to believe, that the conduct may cause the other person to enter into the marriage without free and full consent. 

(2) In relation to a victim who lacks capacity to consent to marriage, the offence under subsection (1) is capable of being committed by any conduct carried out for the purpose of causing the victim to enter into a marriage (whether or not the conduct amounts to violence, threats or any other form coercion).”

This means that there are concurrent criminal proceedings examining whether AC had the capacity to consent to this marriage. Additionally, AC was subject to interim safety measures, including a forced marriage protection order, pursuant to the Family Law Act 1996.

The Court of Protection was asked to consider whether AC had the capacity to marry and whether she was able to consent to having her capacity assessed for the purpose of the criminal proceedings. 

Legal test – capacity to marry 

The statutory test for capacity under section 2 and 3 of the Mental Capacity Act 2005 remains the same (i.e. whether: the 1) client has an impairment to the mind or brain, and as a result of this 2) is unable to a) understand b) use and weigh c) retain or d) communicate information in a given area. 

This court looked at the information that the client would need to apply to a-d) above or, in other words, the ‘relevant information’ to this decision.

To address this, the court looked at the relevant information outlined in previous cases and whether a new legal test needed to be established. Mr Justice Hayden held that new relevant information needed to be applied and outlined this at paragraph 45: 

“Thus, marriage is a formal agreement between two adults in which the fact of the agreement requires to be understood, not the fairness of the terms nor the wisdom of the decision. It requires a simple recognition by two people that they are making a commitment for their lives to be joined together, and that they wish that status to be recognised by others. It is necessary to understand that a formal process is required to enter into marriage and to leave it. Further, and for all the reasons set out above, both parties to a marriage must have capacity to engage in sexual relations, whether they choose to do so or not.”

Therefore, this case confirmed that capacity to engage in sexual relations forms part of the legal test for capacity to marry. It also establishes that it is an agreement between to adults rather than a man or a woman. 

Legal test – capacity to consent to a capacity assessment for the purpose of criminal proceedings 

Mr Justice Hayden outlined that the information that AC needed to understand was set out carefully at paragraph 14, which is outlined in broad terms below:

1. why the criminal proceedings had been brought;

2. why another expert assessment was being requested;

3. the purpose of the assessment;

4. that the expert's role was to be independent;

5. what the expert will be assessing; 

6. how the report might be used in court; and

7. that AC had a choice about whether to take part and the impact of this decision on the criminal case. 

It is clear that this information is specific to this case but provides helpful guidance should this issue arise in other cases. 

Summary 

Before this case, there was uncertainty about whether a person needed to have capacity to engage in sexual relations in order to marry. The Court provides important clarification by confirming that a person must have capacity to engage in sexual relations as part of the test for capacity to consent to marriage. 

It provides helpful guidance around the test that would be applied where assessing whether a protected party within Court of Protection proceedings has the capacity to consent to capacity assessments for the purpose of related criminal proceedings.

Finally, the decision highlights the interaction between the Court of Protection, family law and criminal law in cases with overlapping issues of forced marriage within the Court of Protection.