Background
Hull City Council issued proceedings in the Court of Protection to safeguard KF, who was in a long-term abusive relationship with KW which resulted in a serious sexual assault. Following the assault KF had to endure surgery and blood transfusions and, without medical intervention, likely would have died. KW was charged with s.18 (Grievous Bodily Harm) assault under the Offences Against the Person Act 1861 and subsequently entered a plea to an offence under the s.20 (Unlawful Wounding/Grievous Bodily Harm) assault under the same Act. It was likely that KW would receive a sentence of imprisonment and the sentencing was scheduled within 4 days of the Court of Protection hearing. Nevertheless, after a period of separation, KF returned to live with KW. In January 2022, KF endured further violence at the hands of KW and was moved into emergency accommodation.
Sadly, KF was diagnosed with stage 4 breast cancer with a prognosis of two months to two years to live. An urgent application was made to the Court of Protection to determine whether it would be in KF’s best interest to have unsupervised and overnight contact with KW knowing that it would likely lead to sexual relations. It was of the understanding that when KW was released from prison, KF could have possibly passed away.
A capacity assessment was undertaken and it was concluded that KF lacked capacity to make decisions relating to the proceedings, her care, residence and contact with others, but she was deemed to have capacity to engage in sexual relations.
KF had expressed her wishes to live with, and engage in unsupervised contact with, KW as she missed him and wanted to hug him. KF’s solicitor asked her whether she wanted to have sex with KW and she replied “I am open to having sex if it progresses to that”.
The capacity assessor had commented that he did not believe that KF retained the information about the assaults and the risk that she might be assaulted by KW again.
The barrister instructed to represent KF acknowledged the fact that many people would ask why anyone would allow a woman in the circumstances of the case to have contact with a man who had inflicted this harm on her. It was explained to the judge that KF had clearly expressed her dying wish to have unsupervised contact with KW before she passed away and before he was sentenced.
The judge, Mr Justice Poole, had to consider two matters; whether KF had capacity to engage in sexual relations with KW, and specifically whether the relevant information included the risk of harm to KF from KW during sexual contact, and secondly whether it was in KF’s best interests to spend private, unsupervised time with KW to include overnight contact.
In Mr Justice Poole’s judgment, he stated “Weighing all the circumstances I am sure that it is not in KF’s best interests to have unsupervised contact with KW, whether overnight or during the day, and support could be offered before and during private unsupervised contact, however such support would be impractical and could not effectively keep her safe”. He further stated that “it is difficult to see how a person who lacks capacity to decide to have contact with a specific person could have capacity to decide to engage in sexual relations with that person.”
The full judgement can be read here
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