Judge to consider if husband can maintain intimate relationship with vulnerable wife

A judge in a specialist court might have to decide whether a man can keep making love to his wife of more than 20 years.

The woman has learning difficulties, and social services bosses with responsibility for her care say there is evidence that her mental health has reached a stage which means that she no longer has the capacity to make decisions about whether she wants to have sex.

They want a judge in the Court of Protection, where issues involving people who lack the mental capacity to make decisions, to consider the case.

Lawyers representing social services bosses have suggested that a judge might have to make an order barring the man from continuing to have sex with his wife in order to ensure that the woman is not raped.

Mr Justice Hayden has considered issues at a preliminary Court of Protection hearing in London.

The judge was told that the man had offered to give an undertaking not to have sex with his wife.

But the judge said he wanted to examine evidence in detail – and hear arguments from lawyers representing the woman, the man, and the council involved – before making any decisions.

The judge said the man might be put in a situation where he could face prison if he breached an order, or an undertaking, not to make love to his wife.

He also suggested that such an order would be difficult to police.

“I cannot think of any more obviously fundamental human right than the right of a man to have sex with his wife – and the right of the State to monitor that,” he said.

“I think he is entitled to have it properly argued.”

A full hearing is expected to take place in the near future.

Mr Justice Hayden said the couple involved could not be identified in media reports of the case.

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