Re C – the Court of Appeal’s view

22 October 2021

Re C [2021] EWCA Civ 1527

The Court of Appeal has today handed down judgment in the case of Re C – the appeal from the decision of Hayden J on whether it was lawful for carers of a man with a mental impairment to help him to engage the services of a sex worker.

Readers may recall that the main issue was whether in so doing carers would act in breach of s39 Sexual Offences Act 2003, which makes it an offence for a carer of a person with a mental disorder to ‘cause or incite’ that person to engage in sexual activity. Hayden J decided that, on the outline plans presented about C, no such offence would be committed. The plans included his being provided with assistance to navigate the website of a charity specialising in the provision of sexual services and in making the necessary payment.

The Court of Appeal has now allowed the Secretary of State for Justice’s appeal. The Lord Chief Justice was firstly concerned as to whether the Court of Protection could make decisions or grant declarations as to whether the criminal law was engaged in these circumstances. On the assumption that it could do so, the court found that the steps proposed crossed the threshold of what would constitute ‘causation’ – and thus that C’s carers would be putting themselves at the risk of committing a criminal offence. The court found that although s39 arguably created a state of affairs in which C was treated differently to persons without a mental disorder (for the purposes of Art 14 ECHR) this was justified in the circumstances and must have been what Parliament intended when enacting the section.

The court did not see that it was necessarily creating any difficulty for the wide range of persons who receive some sort of carer ‘help’ to start or continue sexual relationships, considering that such cases would, in future, require a fact specific analysis by the court of whether there was when they arose. Baker LJ specifically considered examples of situations in which the court might consider s39 not to be engaged; carers taking a wife to visit her husband for ‘private time’ together, or carers assisting a young person who wishes to go out and meet people in social situations. And despite the court’s concern at whether the question of whether C’s carers were acting in breach of s39 was properly for the CoP to answer, Baker LJ clearly envisaged that that precise question could and should be asked in other cases in future.

The Secretary of State had sought to amend his grounds of appeal to make points regarding the application of s53A Sexual Offences Act 2003, but the court refused permission for him to do so. The judgment in fact – incorrectly – describes C and the local authority as having asserted that s53A was incompatible with the ECHR. This had not been argued, and at first instance Hayden J and all the parties had agreed that that particular statutory provision was unlikely to arise on the facts of the case.

So on the face of it, this judgment makes one thing clear. It says that carers might easily find themselves committing a criminal offence under s39 if they become too involved in providing help and assistance to a person with a mental disorder.

The difficulty will now be working out what is – and what is not – possible. When will ‘help’ become ‘causing’? For example:

  1. Could a property and affairs deputy (who may well be considered a ‘carer’ given the wide definition in s42 SOA 2003) set aside a sum of money for P, where she knows that P will then spend that on accessing a sex worker? Or would that be ‘causing’ the resultant sexual activity too?
  2. Could carers take practical steps to hoist P into position in a bed, prior to P’s sexual partner arriving to visit? Is that just ‘setting the scene’? Or something beyond that?
  3. Can carers charged with making best interests decisions as to with whom P has contact, safely make a decision that P can have a relationship they anticipate would be sexual with one person, but not with another? How causative are the carers’ actions of any sexual relationship that results?

The implications of the decision will affect many more people than simply those who want to pay for sex, and it now remains to be seen how it will work out on the ground, with carers, deputies and public authorities having to risk assess the prospect of committing offences in a wide range of situations.

Ben McCormack of GCN’s Court of Protection Team was Junior Counsel for C, instructed by Philippa Curran of Odonnells Solicitors and led by Victoria Butler-Cole QC of 39 Essex Chambers

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