On 26 August 2025, the Court of Protection judgment of Re W [2025] EWCOP 32 (T2) was published. The case looked at whether a 32-year-old woman with a learning disability had the mental capacity to engage in sexual relationships and to marry. The Court found that she did. But it also recognised that she remains vulnerable and will need support to exercise that capacity safely. This case matters because it highlights the balance Courts must strike between protecting vulnerable adults and respecting their right to make their own choices, even where those decisions may be considered unwise by others. Background The woman at the centre of the case (referred to as “W”) was born in 1992. She has a learning disability and lived in supported accommodation. She works part-time, enjoys social activities and travels. She’s described as someone who needs reminders for daily tasks but is generally independent with support. In 2014, W entered into a marriage that was later annulled after it was found to have been forced. Following that, in 2016, the Court stated that she lacked capacity to engage in sexual relations or to marry. That decision remained in place until this recent case. What prompted the new case? In 2020, W’s care provider referred her for specialist support to help her understand the earlier Court decision and to improve her understanding of relationships and consent. Over the next few years, she worked with professionals to build her knowledge and confidence. By 2025, her legal team believed she had made enough progress to revisit the earlier decision. The Court was asked to decide whether W now had the capacity to: Engage in sexual relations Enter into a marriage or civil partnership Everyone agreed that she still lacked capacity to make decisions about contact with others (for example, who she spends time with), so that issue wasn’t in dispute. The legal test The Court applied the Mental Capacity Act 2005, which says a person has capacity if they can: Understand the relevant information Retain that information Use or weigh it to make a decision Communicate their decision and if they can’t, then that inability is as a result of a disturbance in the functioning of, the mind or brain. The Court also looked at previous cases, especially A Local Authority v JB [2021] UKSC 52, which set out what someone needs to understand to have capacity for sexual relations. This includes: The nature of sexual activity The importance of consent (both their own and the other person’s) The risks of pregnancy and sexually transmitted infections The arguments The local authority’s view W’s care provider (Company A) argued that she still lacked capacity. Their main concern was that W is highly suggestible and struggles to say “no” in pressured situations. They pointed to past incidents where she had been taken advantage of or had difficulty removing herself from uncomfortable situations. They believed that even if she understood the information in theory, she couldn’t apply it in real life, especially when under pressure. W’s legal team W was represented by the Official Solicitor as her litigation friend considered that she did have capacity. They said she had worked hard to understand the issues and could make decisions when supported and not under duress. They accepted that she was vulnerable but said that vulnerability alone doesn’t mean someone lacks capacity. They also warned against setting the bar too high, which could unfairly restrict her rights. The Court’s decision Judge Farquhar agreed with the Official Solicitor. He found that: W understands the relevant information about sex and marriage She can retain and communicate that information She can use and weigh it, though she may need support to do so in practice The judge accepted that W is vulnerable and may struggle in some situations. But he said that difficulty in acting on a decision isn’t the same as lacking capacity to make that decision. He also stressed that the law must not be paternalistic. People with disabilities should not be held to a higher standard than others when it comes to making personal decisions. Why this case matters This case is a reminder of the importance of not assuming someone lacks capacity because of their circumstances or past decisions and that individuals can be supported to gain, regain and retain capacity to make a decision. For professionals working in health, social care or law, Re W is a useful example of how to apply the Mental Capacity Act in a way that respects both safety and autonomy. How can Morr & Co help? If you would like to discuss your situation with an experienced solicitor, our experienced Court of Protection team will be able to answer any questions you may have. You can contact them by email info@morrlaw.com or by calling 0333 038 9100. Disclaimer Although correct at the time of publication, the contents of this newsletter/blog are intended for general information purposes only and shall not be deemed to be, or constitute, legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article. Please contact us for the latest legal position. Authored by Holly Chantler Partner, Head of Department Message Tags Insights On this page Contact our team today to find out more get in touch
