Why “no capacity means no consent” is the safeguard the world is still failing to apply
By Aneeta Prem MBE
Founder of Freedom Charity and safeguarding campaigner.
Across the world, abuse carried out in the name of family, tradition or control continues to be misinterpreted as consent. This misunderstanding costs lives, freedoms and futures.
Girls are forced into marriage.
Babies are cut before they can speak.
Adolescents are treated as willing when they are terrified.
Disabled adults are married off for care, control or convenience.
In every one of these cases, the same safeguard is missed.
Capacity.
This article explains why capacity matters, why the law is not working in practice, and where the real shortfalls lie. It is written for governments, safeguarding professionals, researchers and victims alike, because the failure is systemic, not individual.
What is dishonour abuse?
Dishonour abuse is a pattern of harm driven by control, compliance and family enforcement. It exists globally, including in the UK and across diaspora communities. It is not confined to any one religion, country or culture.
Dishonour abuse can include:
- forced marriage and child marriage
- Female Genital Mutilation (FGM)
- forced pregnancy or sexual control
- restrictions on education, healthcare or movement
- family-enforced violence
- abuse of disabled or dependent adults framed as “care”
- surveillance, isolation and coercion
The form varies. The mechanism does not.
Power is exercised over someone who cannot freely refuse.
Capacity: the legal foundation of consent
Capacity is not a technical assessment. It is the legal gateway to consent.
In plain English, a person has capacity to make a decision only if they can:
- understand the relevant information
- retain it long enough to decide
- weigh it as part of the decision-making process
- communicate a decision in any way
Capacity is decision-specific and time-specific. It is not a judgement about intelligence, obedience, maturity or family agreement.
If a person cannot understand what marriage or a harmful practice actually involves, they cannot consent to it.
Silence does not create consent.
Compliance does not create consent.
Family approval does not create consent.
No capacity means no consent.
This principle underpins safeguarding law in the UK and aligns with international human rights standards.
Children and legal protection
In England and Wales, a person must be 18 or over to marry or enter a civil partnership. A child cannot lawfully consent to FGM or other serious harm.
Safeguarding action must not depend on a child making a clear objection or disclosure. Professionals should assess the individual risk and follow current statutory guidance.
Babies and unborn children: the most overlooked victims
Safeguarding systems repeatedly fail babies and very young children.
Risk assessments too often depend on disclosure, physical signs or previous intervention. Babies cannot disclose. By the time physical signs appear, harm has already occurred.
Where:
- a mother has undergone FGM
- older siblings have already been harmed
- forced marriage is known in the family
- extended family enforce control
those factors may indicate heightened risk and require an individual safeguarding assessment.
This is not speculation. It is safeguarding reality.
The law allows early intervention based on risk. Practice often waits for certainty. Babies pay the price for that delay.
Adolescents: mistaken for consenting when they are controlled
Adolescents are frequently misclassified as making free choices.
Professionals may say:
- “She hasn’t said no.”
- “She says she agrees.”
- “She’s nearly 18.”
- “She seems mature.”
This misunderstands coercion.
In dishonour abuse, adolescents are often groomed into compliance from childhood. They are monitored, emotionally blackmailed, threatened with abandonment, violence or disgrace. Agreement becomes a survival strategy.
Compliance under control is not consent.
When professionals confuse calmness or silence with choice, safeguarding collapses at the moment it is most needed.
Adults, disability and coercion
Capacity failures do not only affect children.
Adults with learning disabilities, cognitive impairment, mental ill-health, neurodivergence, trauma, communication barriers or high dependence on family members face heightened risk.
A critical error occurs when coercion is treated as separate from capacity.
Coercion can prevent consent from being free and full. Where fear, pressure, surveillance, dependency or deception may be present, professionals must examine the circumstances rather than rely on apparent agreement.
Marriage used as a tool of exploitation
One of the most serious and least acknowledged safeguarding failures is marriage being used to secure care.
Families arrange marriages for sons with significant learning disabilities or mental illness, not to create an equal adult partnership, but to guarantee a full-time carer.
The woman is often not told the truth.
She may be brought from overseas.
She may be told the man is “quiet” or “needs support”.
The reality is concealed until she is trapped.
Once married, she is expected to provide round-the-clock care, alongside sexual access, domestic labour and isolation. Immigration dependency is used to prevent escape. Threats, shame and blackmail replace choice.
This is not marriage. It is exploitation. In many cases, it meets indicators of modern slavery.
Capacity matters on both sides.
Material deception may undermine free and informed consent.
A person who lacks capacity to consent to marriage cannot give valid consent.
When this is ignored, safeguarding legitimises abuse.
Why capacity was written into forced marriage law
When forced marriage law was developed in the UK, capacity was deliberately embedded. This was fought for because practitioners knew forced marriage does not only occur where someone says “no”.
It also occurs where a person cannot consent at all.
Without capacity provisions, the law would have protected only those able to articulate refusal, not the most vulnerable: children, disabled people and those under overwhelming control.
The intention was clear.
Forced-marriage law and statutory guidance focus on whether a person entered marriage without free and full consent. Lack of capacity, violence, threats and other forms of coercion may be central to that assessment.
Silence was never meant to be treated as consent.
Apparent agreement was never meant to override incapacity.
This was the safeguard. It remains the safeguard.
Legal clarity: how forced marriage law treats capacity
UK forced marriage law recognises that forced marriage is not limited to situations where someone verbally refuses.
In law, a marriage is forced where free and full consent is absent. That absence can arise because:
- consent is obtained through coercion, pressure or deception, or
- a person lacks the capacity to consent at all.
This framework was deliberately designed to protect children, disabled people and those under overwhelming family control, even where no explicit refusal is made.
In practice, this means:
- silence does not equal consent
- apparent agreement does not override incapacity
- family approval has no legal weight
- professionals do not need to wait for harm to occur before acting
A person who lacks capacity to consent to marriage cannot give legally valid consent. Professionals should follow the Mental Capacity Act 2005 and current forced-marriage statutory guidance.
How practice has drifted from the law
Despite clear legal intent, practice has narrowed.
Capacity is too often treated as:
- a secondary issue
- something to assess only if concerns are obvious
- or something to revisit after harm
This was never the purpose of the law.
Capacity was designed as an early warning system, not a retrospective explanation.
When professionals wait for disclosure, resistance or visible distress, they are no longer applying the law as written. They are diluting it.
Why the law is not working in practice
The failure is systemic and predictable.
Disclosure culture
Professionals wait for victims to speak. Babies cannot. Children often cannot. Coerced adults may not dare.
Cultural hesitation
Fear of being seen as insensitive leads to delay. Safeguarding law does not permit neutrality where harm is suspected.
Fragmented systems
Health, education, social care, police and immigration act separately. Dishonour abuse does not fit neatly into one service.
Late use of protection powers
Courts have strong tools to prevent harm, but they are often used after abuse has occurred, not before.
Misreading silence as safety
Lack of disclosure is treated as reassurance. In safeguarding law, it is often the opposite.
This is not a loophole in law. It is a failure of application.
Why dishonour abuse is under-reported and under-counted
Research and official data significantly understate the scale of forced marriage, FGM and wider dishonour abuse. This is not because the problem is small, but because much of the harm is structurally invisible.
Key reasons include:
Silence is misread as absence
Babies cannot disclose. Children may lack language or safety. Adolescents may comply to survive. Disabled adults may communicate through perpetrators.
Harm occurs outside reporting systems
Abuse frequently takes place overseas during family travel, where evidence is lost and safeguarding oversight is absent.
Cases sit in the wrong data sets
Many victims are recorded under immigration, domestic abuse, mental health or disability services rather than as forced marriage or FGM cases.
Fear suppresses reporting
Victims may fear retaliation, destitution, immigration consequences or total isolation if they speak.
Prevention is not measured
Early intervention that successfully stops harm is rarely recorded, creating the false impression that risk was low.
Absence of data is often misread as absence of harm. For safeguarding and research purposes, this is a serious analytical error.
Official figures cannot capture abuse that is never disclosed or correctly identified.
Why language matters
The term “honour-based abuse” is widely used. I use dishonour abuse deliberately.
There is no honour in:
- forcing a child into marriage
- cutting a girl’s body
- trapping someone through fear or dependency
The dishonour lies with the perpetrator, not the victim.
Language shapes judgement. When abuse is softened, safeguarding weakens. When it is named clearly, action follows.
Capacity as the global safeguarding red line
Across countries, cultures and legal systems, one principle holds.
Where a person lacks capacity or freedom, consent is invalid.
Treating capacity as non-negotiable does three things:
- removes ambiguity
- triggers early protection
- prevents irreversible harm
Capacity and consent are not Western ideas. They are human safeguards.
What must change now
To protect babies, children, adolescents and vulnerable adults:
- risk must be enough to act
- silence must be recognised as a warning sign
- coercion must never be mistaken for consent
- cultural explanations must not override legal duty
- capacity must be assessed early and properly
- prevention must be prioritised over reaction
The law already allows this. Practice must catch up.
Where there is no capacity, there is no consent.
Where there is no consent, there is no marriage, no procedure, no justification.
There is only abuse.
Safeguarding will continue to fail until this principle is applied clearly, consistently and early, everywhere.
About the author
Aneeta Prem MBE founded Freedom Charity in 2009. Her work has focused on forced marriage, FGM, dishonour abuse, safeguarding and the protection of children and adults at risk.
Verified source
Forced marriage statutory guidance and mental capacity — GOV.UK
