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When two mentally challenged adults elect to cohabit and then marry, the nature of their relationship is brought into question, after a pattern of domestic abuse overshadows any informed choice to start a family. It is then that the local authority seeks forced contraception to prevent the continuation of suffering and a potential loss of children through predicted adoption.
With diagnosed Atypical Autism, the applicant in this Court of Protection case found herself at an emotional impasse when trying remain in her marriage and evaluate the sensibility of motherhood under the suffocating grasp of a controlling partner. The two parties involved met when working as community volunteers, and while the husband had enjoyed the security of a close family relationship, the wife had been fatherless from a young age, before being forced to live alone (albeit with community support) when her mother emigrated a number of years later.
Through a series of dysfunctional relationships, the applicant had also found herself pregnant on two separate occasions, both of which resulted in her surrendering the child to the care system, on grounds that her limited intelligence and reasoning skills fell far short of those required to provide a safe parenting environment. In fact it was only after having met her now husband, that the couple were given the freedom to live together under the regular supervision of the local authority. In order to prevent further unwanted pregnancies, the applicant was asked to undergo routine depot injections under the terms of her Guardianship order as enacted under the Mental Health Act 1983.
During the course of their time together, the husband (who himself suffered from low intelligence) began to exhibit domineering behaviour over the applicant, often obstructing access to those assigned her monitoring, until reaching the level that her social activity was virtually non-existent, and when seen by her case managers, she displayed minor bruising and complained that she was both unhappy and afraid of her partner.
It was also disclosed that in recent months they had decided to start a family, and that she no longer wished to receive the injections; although when given the freedom to respond alone, the applicant often expressed her reservations, but that unless complied with she feared becoming homeless, as the property shared was beneficially his. Despite making concerted attempts to maintain regular contact, the aggressive manner in which her husband denied them access left the council unable to assess both her personal safety, and the risks of her falling pregnant while under the pervasive influence of a man lacking any cogent understanding of her fragility and fear of reprisal.
Having exhausted all options surrounding the management of the applicant’s social care, it was left to the Court of Protection to determine (i) that the applicant understood the concept of motherhood, (ii) that she could likewise make a measured decision as to her cessation of contraception, and (iii) that an injunction need be applied to her husband to prevent future interference in her autonomous rights. What distinguished this matter from many before, was that the issue of contraception had not been properly considered when assessing mental capacity, so the validity of applying a judicial test raised genuine doubts as to the widening of qualifying criteria over and above that of a State medical clinic.
While it was also considered that the applicant had undergone a number of interviews concerning parental responsibility and contraception, her answers often ran risk of appearing scripted, therefore the balance hung in equal measure regards any certainty of mind when entering into pregnancy, or likewise preventing it. It was on this additional evidence that the court found a test of mental capacity was by extension, unfair when her freedom to choose was strangulated by external persuasions.
It was then decided that the best way forward was through deliberate post-natal education and greater inclusion of the husband into the decision making process, which would not only show support of art.8 of the ECHR (right to respect for private and family life) and art.12 (founding a family), but preclude the need for State intervention where mediation and continued encouragement for capacitous thinking would hopefully give rise to the best possible outcome for all.
“[T]he administration of contraception is different from any other medical procedure, since (leaving aside sterilisation) no other medical procedure, or the refusal of it, produces such significant social consequence as the potential creation of a child.”
“Although in theory the ‘reasonably foreseeable consequences’ of not taking contraception involve possible conception, a birth and the parenting of a child, there should be some limit in practice on what needs to be envisaged, if only for public policy reasons.”
“To apply the wider test would be to ‘set the bar too high’ and would risk a move away from personal autonomy in the direction of social engineering. Further, if one were to admit of a requirement to be able to foresee things beyond a child’s birth, then drawing a line on into the child’s life would be nigh impossible.”
“[A]ny opinion as to Mrs A’s capacity based in part on an assumption as to what might happen to a child of Mr and Mrs A, must be flawed as to both the test itself and the assumed likely facts.”
“In view of what I find to be the completely unequal dynamic in the relationship between Mr and Mrs A, I am satisfied that her decision not to continue taking contraception is not the product of her own free will.”
“[A]ny step towards long-term court imposed contraception by way of physical coercion, with its affinity to enforced sterilisation and shades of social engineering, would raise profound questions about state intervention in private and family life.”
“I certainly do not think the court should intervene at a stage when Mr A has not yet been included in any ability-appropriate discussion or help on the contraception issue; when Mr and Mrs A have not yet had any therapeutic input as a couple about it (as recommended by Dr K), nor about their relationship generally; and when they have not yet had the chance to be helped to understand this judgment.”