Family law: capacity to consent

By David Burrows

Consent: mental capacity and understanding

What does ‘consent’ mean when applied to such situations as living apart for two years and consenting to a divorce; consent of a birth parent to adoption; or consent to the terms of a pre-nuptial agreement or settlement of matrimonial financial negotiations? This article looks at two aspects of consent and its fundamental component: understanding. First, does the mental capacity of the person consenting make any difference to consent; and how in outline can this be assessed? Secondly, is the answer any different if the person whose consent is sought is a child under 16?

Mental capacity – the first question – is assessed according to Mental Capacity Act 2005 (MCA 2005) and as explained by case law decided before and after that Act. The question of consent of a child under 16 is dealt with by the common law as (see Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7, [1986] 1 AC 112, [1986] 1 FLR 224 as discussed in eg Re S (Child as Parent: Adoption: Consent) [2017] EWHC 2729 (Fam), [2017] WLR(D) 726, Cobb J (considered further below).

Where any question as to the capacity of an individual arises, the starting point is that he or she “must be assumed to have capacity unless it is established that he lacks capacity” (MCA 2005 s 1(2)); or, as Kennedy LJ in the Court of Appeal explained, the common law doctrine which s 1(2) encapsulates in Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889, [2003] 1 WLR 1511:

“[17] It is common ground that all adults must be presumed to be competent to manage their property and affairs until the contrary is proved, and that the burden of proof rests on those asserting incapacity.”

In Masterman-Lister and in the more recent Dunhill v Burgin (Nos 1 and 2) [2014] UKSC 18, [2014] 1 WLR 933 the Court of Appeal and Supreme Court respectively were concerned with whether or not a person who might have lacked capacity were in a position to accept settlement of their claim for damages though adult when settlement was agreed. In the first case the answer was that the claimant had capacity to settle; and in the second, that she had not – and her lawyers should have realised this. The cases mainly turned on how court rules were to be interpreted to deal with court approval in situations like this.

In Dunhill v Burgin Lady Hale explained the test of capacity as follows:

“[13] The general approach of the common law, now confirmed in the Mental Capacity Act 2005, is that capacity is to be judged in relation to the decision or activity in question and not globally. Hence it was concluded in [Masterman-Lister] that capacity for this purpose meant capacity to conduct the proceedings (which might be different from capacity to administer a large award resulting from the proceedings)…. In my view, the Court of Appeal reached the correct conclusion on this point in Masterman-Lister’s case and there is no need for us to repeat the reasoning which is fully set out in the judgment of Chadwick LJ.”

Mental Capacity Act 2005 and “understanding”

MCA 2005 ss 2 and 3 provide a definition of capacity and understanding under the 2005 Act in the case of adults. MCA 2005 s 2(1) asserts that any person “lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter”. Section 3(1) continues–

“(1) … a person is unable to make a decision for himself if he is unable—

(a) to understand the information relevant to the decision,

(b) to retain that information,

(c) to use or weigh that information as part of the process of making the decision, or

(d) to communicate his decision (whether by talking, using sign language or any other means).”

Section 3(2) confirms that a person may be treated as able to understand information relevant to the decision in question or subject matter “if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means)”.

As Lady Hale makes clear in Dunhill v Burgin the approach of this part of MCA 2005 owes much to the common law, and as explained by Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889, [2003] 1 WLR 1511. The test of capacity depends on two questions:

(1) Can an individual (C) understand the transaction in question: that is, the question is subjective to C (and see MCA 2005 s 2(1)); and is specific to the transaction C is required to understand (ie it is “issue-specific”; such as agreement to a settlement of proceedings or to a pre-marital agreement); and

(2) Can the transaction concerned be understood C in the light of relevant and appropriate information given to C (MCA 2005 s 3(1)(a))?


“Issue-specific”: capacity to understand the particular transaction

Chadwick LJ explained the first of these propositions – that capacity was to be assessed only in relation to a given issue – in Masterman-Lister:

“[57] English law requires that a person must have the necessary mental capacity if he is to do a legally effective act or make a legally effective decision for himself….

“[58] The authorities are unanimous in support of two broad propositions. First, that the mental capacity required by the law is capacity in relation to the transaction which is to be effected. Second, that what is required is the capacity to understand the nature of that transaction when it is explained. Those two propositions find expression in the passage from the judgment of Mr Martin Nourse QC in In re Beaney, decd [1978] 1 WLR 770, 774e–f…..”

In Masterman-Lister Kennedy LJ explained the first of these propositions as follows

“[27] What [is] of some importance is the issue-specific nature of the test; that is to say the requirement to consider the question of capacity in relation to the particular transaction (its nature and complexity) in respect of which the decisions as to capacity fall to be made. It is not difficult to envisage plaintiffs in personal injury actions with capacity to deal with all matters and take all lay client decisions related to their actions up to and including a decision whether or not to settle, but lacking capacity to decide (even with advice) how to administer a large award….”

Re Beaney, decd, [1978] 1 WLR 770, 774 Martin Nourse QC, sitting as a deputy judge of the Chancery Division (cited in Masterman-Lister ) said (of an elderly woman – ultimately held not to have capacity – to transfer to one daughter her house, which formed the main part of her estate) of understanding “relative to the particular transaction”:

“… it seems to me that the law is this. The degree or extent of understanding required in respect of any instrument is relative to the particular transaction which it is to effect. In the case of a will the degree required is always high. In the case of a contract, a deed made for consideration or a gift inter vivos, whether by deed or otherwise, the degree required varies with the circumstances of the transaction….”

Reference was made in Masterman-Lister to Mason v Mason [1972] Fam 302 where Sir George Baker P considered whether consent had validly been given to a divorce under Matrimonial Causes Act 1973 s 1(2)(d) (then Divorce Reform Act 1969 s 2(1)(d)). He considered the consent required for a valid marriage and then continued (at 306):

“… I have no hesitation in coming to the conclusion that the test for the capacity of a man to give a valid consent for the dissolution of his marriage is exactly the same as the test for the validity of the contract of marriage, and that is the test propounded in In the Estate of Park, decd [1954] P 89.

It was for the petitioner to prove the consent (this was in the days before consent was proved by identification of the respondent’s signature on the acknowledgement of service). The President envisaged a possible problem

“… when it appears that the respondent is under some incapacity, either a mental incapacity or an incapacity because of age which might arise in the case of a foreign marriage, that the problem has to be considered.”

In Mason there was medical evidence which showed him that at the appropriate time “the husband was capable of understanding the nature of his consent, of expressing that consent, and of appreciating the effect and result of so expressing it”. The statutory requirements for granting a decree “had therefore have been fulfilled” he concluded.

For present purposes it is sufficient to draw attention to the proposition put forward by the majority in the Supreme Court Radmacher (formerly Granatino) v Granatino  [2010] UKSC 42, [2011] AC 534, [2010] 2 FLR 1900 (Lady Hale agreed with this formulation, in effect, if in slightly different terms [169]: see Lord Mance at [129). Said the Supreme Court, if a pre-marital agreement was based on the following as to understanding (“appreciation” as Radmacher calls it) and “of its implications” then the court should generally give “weight” to it:

“[75] … The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.”


Capacity, understanding and a child mother

The second question posed at the beginning of this article – is the meaning of “understanding” any different if the person whose consent is sought is a child under 16? – is considered in In re S (A Child) (Child Parent: Adoption Consent) [2017] EWHC 2729 (Fam);  [2017] WLR(D) 726, where child law and MCA 2005 principles coalesce. Cobb J sets out the legal framework for professional assessment of understanding of the process and effect of adoption for a mother, S. We know only that she is “under 16 years of age”. She suffers from “developmental delay and learning difficulties”. She has not seen her child T, who is at the centre of the case. S wants T adopted. In law is she able to consent to this.

Cobb J stresses that though a child’s understanding is a matter of common law (Gillick), and mental capacity a matter of statute law (ie MCA 2005), each area of law is complementary to the other:

“[15] … the approach of the courts to decision-making by adults and children ought (with appropriate adjustments to reflect age and maturity) in my judgment to be complementary. Therefore, in applying the Gillick test in the context of determining the competence of a child to make decisions, I regard it as appropriate, and indeed helpful, to read across to, and borrow from, the relevant concepts and language of [MCA 2005].”

Everyone agreed that the baby, T, was likely to be adopted. However, first the court must assess the capacity of S to consent, then how her consent could be validly accepted and adoption thereby achieved ([5]). The case explained the link between understanding and capacity in family proceedings (in particular under Adoption and Children Act 2002 (ACA 2002)) and under MCA 2005. The test for Cobb J was to secure the baby’s legal status by adoption or some other course.

Therefore there must be an assessment of the ability of S, as a child under 16, to consent so that – if valid consent was given – then the local authority could place for adoption (ACA 2002 s 19), and then for her to consent to a final order (s 20). The court can make a placement order with a parent’s consent (s 21(3)(a)); though not if a parent “lacks capacity (within the meaning of [MCA 2005]” (ACA 2002 s 52(1)(a)).


Gillick: “sufficient understanding and intelligence”

For a young person like S, her competence was tested on common law principles, by reference to Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7, [1986] 1 AC 112, [1986] 1 FLR 224. For example, he referred to Lord Scarman – the central passage in Gillick – to explain the development of a mature child’s understanding (in Gillick the “understanding” was whether a doctor could provide contraceptive information to a child under 16 without her parent’s consent or knowledge; and the answer was, yes):

“The underlying principle of the law … is that parental right yields to the child’s right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision….” ([1986] 1 AC 112, 186).

So, said Cobb J in In re S [2017] EWHC 2729 (Fam), certain principles in relation to a decision under MCA 2005 can be in the same way as they are following Gillick ([17]):

(1) Determination of competence must be “decision-specific”: evaluation of competence demands assessment in the specific factual context (and see Chadwick LJ in Masterman-Lister at [62] (above) and MCA 2005 s 2(1)).

(2) Competence must be assessed in the context of the issue in question: “Just because S lacks litigation competence in the placement order proceedings for example does not mean that she lacks subject matter competence (say, in relation to consent)”; and see MCA 2005 s 3(2).

(3) Assessment of competence must be made on the current evidence for the current and specific decision.

A child’s Gillick-competence can be tested using MCA 2005 principles, though MCA 2005 does not apply directly to children under 16 (MCA 2005 s 2(5)):

“[19] … There is an advantage in applying relevant MCA 2005 concepts and language to the determination of competence to the under-16s, for this will materially assist in maintaining consistency of judicial approach to the determination of capacity or competence of a parent to give consent to adoption or placement, whether that parent is under or over 16 years of age. The capacity to give consent under the ACA 2002 for the over-16s is specifically to be determined by reference to the MCA 2005: see s 52(1)(a); it would be illogical if the court applied a materially different test of capacity/competence depending on which side of their 16th birthday the parent fell.”

MCA 2005 s 1(3) states positively that a person can be treated as able to make a decision; but not if “all practicable steps to help him to do so have [failed]”. MCA 2005 s 1(4) continues that a person is not to be regarded as unable to make a decision “merely because he makes an unwise decision”; or is thought to have been unwise. In terms of akin to those of Nourse QC in Re Beaney, decd, [1978] 1 WLR 770 (above) – Cobb J concluded that “on an issue as significant and life-changing as adoption, there is a greater onus on ensuring that the child understands and is able to weigh the information than if the decision was of a lesser magnitude” ([61]).

The contexts referred to at the beginning of this article are all very different; but what legislation and common law affirm is that central to assessment of understanding is the seriousness of the transaction to be understood and the extent to which appropriate information (MCA s 3(2)) – whether “age-appropriate” or otherwise appropriate to the individual – is provided by the person who is assessing the understanding and consent. For S, assessment of her competence must go back to the Professor who had so far assessed her ([63]). Prior to this she must have information appropriate to her age and understanding ([57]).


David Burrows

16 November 2017


David BurrowsDavid is a solicitor advocate, trainer and writer. His latest book is Children's Views and Evidence (Bloomsbury Professional).
David Burrows

David is a solicitor advocate, trainer and writer. His latest book is Children's Views and Evidence (Bloomsbury Professional).

Subscribe to the blog. Get Weekly Notes in your inbox.
More Recent Posts