The importance of protection in the Court of Protection

In the recent case of BU, Re [2021] EWCOP 54, a 70-Year-old lady (BU) who suffered from vascular dementia had been in a relationship with a male in his forties (NC), for five years. During this period, many relatives grew concerned about the relationship and the coercive behaviour being demonstrated by NC upon BU. Subsequently an application was made by her daughter, seeking an order that her mother lacks capacity and therefore, her contact with NC needs to be suspended or restricted at the very least.

The background of the relationship was flagged to have particular importance by Mrs Justice Roberts, considering NC’s past convictions including blackmail, dishonesty, and the attempted liquidation of BU’s assets worth £700,000 in 2020. BU was safeguarded by the COP at this time, as a financial deputy was appointed, and BU was deemed to lack capacity to manage her affairs as per Section 2 of The Mental Capacity Act 2005 (The MCA 2005).

Whilst Mrs Justice Roberts was satisfied that BU lacked capacity to manage her finances, the question was raised as to whether she lacked capacity to make decisions about her contact with NC. BU was adamant that her relationship with NC was integral to her emotional wellbeing, and that the survival of her welfare depended on the existence of this relationship. It was clear upon consideration of all the facts by Mrs Justice Roberts found that BU had been so manipulated by NC, that he had “engaged on a deliberate and calculated attempt to subvert any independent decision-making”.

Considering the professional medical input received, it became clear that BU lacked capacity and was unable to make well informed or reasonable decisions about her relationship with NC, or anyone who may pose as a threat to her wellbeing. As a result, Mrs Justice Roberts considered her powers under Section 16 of the MCA 2005 and made an order to prevent contact. Considering the severity of abuse, she additionally ordered an interim forced marriage protection order (FMPO) for 12 months during which time BU would undergo therapy and rehabilitation.

Whilst the granting of an FMPO is not decisive upon capacity, it is a type of injunction to protect those most vulnerable and was of particular use in this case. It should be recognised that this was an especially sensitive matter as it was imperative that BU’s rights were upheld, but the protection of her wellbeing by the Court of Protection was fundamental.