High Court judgment upholds status specific test for capacity to marry: Sophia Roper KC and Jake Rylatt act for the Official Solicitor
27th November 2025
Judgment was today handed down in the first case to specifically consider the impact of Re JB [2021] UKSC 52 on the question of capacity to marry. In Stockport Metropolitan Borough Council v EKK [2025] EWCOP 42, Sophia Roper KC and Jake Rylatt successfully argued that the line of authority set out by Munby J in Sheffield CC v E [2004] EWHC 2808 (Fam) remains good law, and that the person specific test, which the local authority contended should now be applied, was wrong. Mr Justice Trowell accepted that the Sheffield test, which mandates that the question to be asked is does P have capacity to marry, rather than does P have capacity to marry their intended spouse is right as a matter of principle and that it follows the approach endorsed by the current President of the Family Division in PC v City of York Council [2013] EWCA Civ 478. Sophia and Jake were instructed by Caroline Hurst at Simpson Millar LLP on behalf of the Official Solicitor.
At paragraph 46 of his judgment, Trowell J said:
“The approach set out in Sheffield and developed thereafter enables the right balance between the protection of the incapacitous and a restriction on paternalistic involvement of the court. P needs to have capacity to understand what marriage is. If P does have that capacity it is not for the court to evaluate the person whom they wish to marry. To do so would be an overreach of the court’s role.”
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