Court approves £10k settlement over delays in providing sex education

The Court of Protection has approved a £10,000 damages settlement plus costs to a man with Down's Syndrome and an associated learning difficulty over delays in the provision of sex education.

Judge Sir Mark Hedley said 38-year-old CH in 2010 married WH and they have since lived together in CH's parent's home.

They enjoyed normal conjugal relations until March 2015 when a consultant psychologist concluded CH lacked capacity to consent to sexual relationships after the couple sought fertility treatment.

WH was told not to have sex with CH as his lack of capacity to consent would mean she would be committing an offence.

Giving judgment in CH v A Metropolitan Council [2017] EWCOP 12, Sir Mark said: “WH had reasonably understood from the local authority that should she fail to comply, safeguarding measures would be taken which would require the removal of CH (or herself) from their home. “

She moved into a separate bedroom and in order not 'to lead him on' significantly reduced any physical expressions of affection. “The impact of all this on CH is not difficult to imagine,” the judge said.

The consultant psychologist said CH needed a course of sex education to achieve the necessary capacity, but “for reasons that have never been satisfactorily explained, the local authority failed to implement that advice despite requests and protracted correspondence”.

CH’s sister then gained an order from the Court of Protection and the course finally began in June 2016 and was successfully completed with the couple resuming normal relations in May 2017.

“The gravamen of the claim is the delay in implementing the advised programme of education: that is to say the period between 27 March 2015, when conjugal relations were required to cease...and the start of the first sexual education programme on 27 June 2016,” Sir Mark said.

He concluded that the case was unusual but “logically the question of capacity must apply also to married relations and the criminal law makes no distinction between settled relations and sexual disinhibition or indeed between sexual relations within or outside marriage.

“Society's entirely proper concern to protect those who are particularly vulnerable may lead to surprising, perhaps even unforeseen consequences. Such, however, may be the price of protection for all.”

He added: “Many would think that no couple should have had to undergo this highly intrusive move upon their personal privacy yet such move was in its essentials entirely lawful and properly motivated. As I have said, perhaps it is part of the inevitable price that must be paid to have a regime of effective safeguarding.”

Mark Smulian