Key Facts
- •Appeal against a Court of Protection order preventing a young man (J) with severe learning difficulties from travelling to Afghanistan with his family.
- •J lacks capacity to make decisions about travel and marriage.
- •Family planned to travel to Afghanistan for a holiday and for J and his sister to enter arranged marriages.
- •Local authority obtained a Forced Marriage Protection Order (FMPO) and a port alert.
- •FMPO discharged for J's sister, but remained for J.
- •Judge refused the family's application to allow J to travel, citing significant risks outlined in FCDO travel advice.
- •Appeal based on inadequate best interests analysis under s.4 Mental Capacity Act 2005 and potential Article 14 discrimination.
Legal Principles
Best interests determination under s.4 Mental Capacity Act 2005
Mental Capacity Act 2005
Weight given to wishes and feelings of incapacitated person
Aintree University Hospitals NHS Foundation Trust v James
Balancing risks and benefits in best interests decisions
An NHS Trust v P & Another
Article 14 rights against discrimination
European Convention on Human Rights, Article 14
Weight afforded to non-statutory public guidance in best interests decisions
Various cases concerning public health guidelines (referenced but not specified)
Outcomes
Appeal dismissed.
Court found the judge conducted a thorough best interests analysis, considering all relevant factors despite time constraints. The FCDO advice, while influential, was not treated as decisive. The judge's decision was considered open to her on the evidence available.