Home > Family > England and Wales > 2008-03-19 - High Court of Justice, KC and NNC v City of Westminster Social (...)

2008-03-19 - High Court of Justice, KC and NNC v City of Westminster Social and Community Services Department and IC, [2008] EWCA Civ 198

Family · England and Wales · Marriage · Ordre public

Under English law, a mentally ill person cannot marry by telephone even if the marriage is valid under sharia and Bangladeshi law

Key facts of the case - IC was born in 1981 and suffered from severe impairment of intellectual functioning and autism. Expert evidence showed that IC’s skills were that of an average three year old or below. He required considerable support in all areas of his life and could not be left alone without risk; he was highly suggestible and vulnerable; and received home care five mornings a week before attending a day centre, and additionally received a high level of respite care. The local authority had been involved in supporting and protecting him since he was four years of age. IC and his family were of Bangladeshi origin and were British nationals, although only IC was born in the UK.
The question of IC’s marriage had been discussed between his parents and the local authority in April 2006 and, in 2007, the local authority applied to the High Court for a declaration about IC’s capacity to marry, stating that it did not consider IC had the capacity to marry. However, sometime in August or September 2006, IC was married in a Muslim ceremony which took place by telephone. The telephone link was between IC in England and his bride, NK, who had been chosen by his parents and was in Bangladesh.
The High Court judge, Roderic Wood J, after a hearing in December 2007 made the declarations that (a) IC was domiciled in England, (b) he lacked capacity to conduct litigation, (c) he lacked capacity to marry, (d) he lacked capacity to consent to sexual relations, (e) he lacked the capacity to consent to circumcision, (f) circumcision would not be in his best interests, (g) the marriage of IC and NK on or around September 2006 took place in Bangladesh and was valid in Muslim law and in Bangladesh civil law as the expert report by Prof. Werner Menski showed, and (h) the marriage was not valid under English law. Pending a full hearing of the issues, the judge also made orders to prevent IC being brought into contact with NK. In January 2008 an appeal notice was filed concerning in particular the declaration at (h) and challenging the court’s jurisdiction to permanently prevent IC’s removal to Bangladesh.

Main reasoning of the court - Thorpe and Wall LJJ issued the only reasoned speeches with which Hallett LJ agreed.
The question of the court’s power to prevent removal was part of its inherent jurisdiction and was also covered by legislation, i.e. the Mental Capacity Act 2005, sections 15-17, specifically section 17(1)(a). The point had already been dealt with by Munby J correctly in the case of Local Authority X v MM & KM [2007] EWHC 2003 (Fam).
As to the question of validity of marriage, the court agreed with the challenge on the basis that a marriage of the type concerned with in this case was, under the Matrimonial Causes Act 1973, sections 12 (c) and (d) (inter alia dealing with consent), only voidable and not void from its start. Further, under the Family Law Act 1986, section 55(1), the court may make declarations as to marital status as to whether a “marriage was at its inception a valid marriage”. There is, however, no sub-paragraph permitting a declaration that the marriage was invalid at its inception.
Thorpe and Wall LJJ differed slightly about basis upon which the marriage should be construed under private international law. There were three possible tests according to which the validity of a marriage could be construed. The ‘dual domicile test’ required the capacity of both parties to be determined respectively by their laws of domicile. Where this test did not function to recognise a marriage then the alternatives were the ‘intended matrimonial home test’ and the law with which the marriage has its most ‘real and substantial connection’. Thorpe LJ accepted that the marriage was valid under Muslim law and Bangladeshi law and could be regarded as such for the purposes of English law using one of the three tests for validity.
However, considerations of public policy meant that the marriage could not be recognised under English law. Wall LJ specifically thought that in this case the dual domicile test should apply. According to that test, the marriage would not be valid since IC was domiciled in England and, under English law, he did not have the capacity to enter the marriage. Both Thorpe and Wall LJJ expressed some doubt about the validity of telephonic marriages in the manner conducted in this case and would have welcomed the chance to investigate the matter further. They did not decide the matter, however, because of the consensus among the legal representatives that the place of celebration of the marriage had been in Bangladesh. Thorpe LJ noted that the French Civil Code had been amended in 1993, with a new article 146(1) requiring the presence of a French person at his marriage even when contracted in a foreign country. According to the judge, the reason for this was to deal with problems arising from marriages of convenience celebrated by proxy in Morocco and Algeria.

Comment - This case is indicative of an increased willingness among local authorities to intervene in cases of ethnic minority families and, in particular, those considered vulnerable.
The above cited case Local Authority X v MM & KM [2007] EWHC 2003 (Fam) is another such example. Although they do so on different bases, the reasoned judgments reveal a real effort on the part of the Court of Appeal judges not to allow recourse to Muslim law or Bangladeshi law to uphold the marriage and, conversely, to assert English values in the evaluation of whether the marriage should be recognised. They do not however explain how English values in principle come to override those accepted by the parents and in Bangladesh, how the future care for IC would be organised by the state, and how that was necessarily preferable to or ruled out care provided by members of his family and his wife.
The judges expressed some concerns about exposure of IC to sexual activity. The remarks by the judges about telephonic marriages show some confusion about the differences between telephonic marriages and proxy marriages, but also signal that English judges are sufficiently worried about the phenomena to want to curtail them at some point in the future when a case arises for decision.

See the decision : High Court of Justice, 2008-03-19, [2008] EWCA Civ 198.