A Local Authority v C & Ors [2021] EWCOP 25 (26 April 2021)

A Local Authority v C & Ors [2021] EWCOP 25 (26 April 2021)

Assisting C, an adult with capacity to consent to sexual relations, to access the services of a sex worker by care workers or others involved in his care would fall within the scope of 'causing or inciting' sexual activity under s.39 Sexual Offences Act 2003, and would therefore be a criminal offence. The court cannot interpret the statute to exclude such conduct from criminal liability, nor can it make a declaration of incompatibility with the ECHR on the facts of this case.

Citation
[2021] EWCOP 25
Parties
Applicant: A Local Authority; 1st Respondent: C (by his litigation friend, AB); 2nd Respondent: A Clinical Commissioning Group; 3rd Respondent: Secretary of State for Justice
Jurisdiction
England and Wales
Judgment Date
26 April 2021
Procedural Posture
Court of Protection Application / Judgment on Preliminary Legal Issues
Outcome
Declarations made as to C's lack of capacity in certain domains; court declines to authorise or sanction care plan facilitating contact with a sex worker; no declaration of incompatibility made.
Legal Topics
Sexual Offences Act 2003, Capacity to Consent to Sexual Relations, Care Planning for Disabled Adults, Deprivation of Liberty, Article 8 ECHR, Best Interests, Criminal Liability of Carers
Mental Capacity Law Criminal Law Human Rights Sexual Offences Act 2003 Capacity to Consent to Sexual Relations Care Planning for Disabled Adults Deprivation of Liberty Article 8 ECHR +2 more

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Parties

A Local Authority

Applicant

C (by his litigation friend, AB)

1st Respondent

A Clinical Commissioning Group

2nd Respondent

Secretary of State for Justice

3rd Respondent

Procedural Posture

Court of Protection Application / Judgment on Preliminary Legal Issues

Legal Issues

  1. 1 Whether care workers facilitating contact between an incapacitated adult and a sex worker commit an offence under s.39 Sexual Offences Act 2003
  2. 2 Whether the Sexual Offences Act 2003 can be read compatibly with the European Convention on Human Rights in this context
  3. 3 Whether a care plan facilitating such contact is lawful and/or in C's best interests

Ratio Decidendi

Assisting C, an adult with capacity to consent to sexual relations, to access the services of a sex worker by care workers or others involved in his care would fall within the scope of 'causing or inciting' sexual activity under s.39 Sexual Offences Act 2003, and would therefore be a criminal offence. The court cannot interpret the statute to exclude such conduct from criminal liability, nor can it make a declaration of incompatibility with the ECHR on the facts of this case.

Court Disposition

Declarations made as to C's lack of capacity in certain domains; court declines to authorise or sanction care plan facilitating contact with a sex worker; no declaration of incompatibility made.

Orders

  • Declarations that C lacks capacity to conduct proceedings, decide where to live, decide what care and treatment to receive, decide to use the internet and social media, and decide his financial affairs.
  • No authorisation or approval of a care plan facilitating contact with a sex worker.