Muslims and the care of those with learning disabilities
A few months ago I wrote here about the needs of some converts, particularly those with disabilities, which was reproduced on MuslimMatters a few weeks later, and mentioned the problems with setting up a charity that specifically caters to Muslims with disabilities. Recently, however, an issue within our community (and, perhaps, other minority and foreign-origin religious communities) has been exposed which makes this appear more of a necessity. Last week a British judge annulled the marriage of a woman with severe learning disabilities who had been given away in marriage by her family in Bangladesh, and whose husband had moved to the UK (the marriage still legally stands in Bangladesh, but is disregarded here). The BBC’s radio programme Face the Facts has also exposed a widespread problem with such people, men and women, being married off by their families abroad where there are fewer checks, sometimes as an immigration scam, but often to provide them with a younger carer who will be able to continue caring when the parents are no longer able. (The Face the Facts programme can be listened to or a transcript of it read here.)
In the UK, the rights of people with learning disabilities to make decisions for themselves are governed by the Mental Capacity Act, and as the programme points out, it starts from the assumption that people do have capacity and that unwise decisions do not mean that someone lacks capacity, but in the event that someone does not, it allows for someone else to make decisions for them, but the Act does not allow that person to consent to marriage or sex on that person’s behalf. So it is illegal to marry someone who does not have the capacity to consent to marriage, and sex with them is unlawful, even within a supposed marriage. The programme did point out that some people with learning disabilities can consent to marriage and have every right to do so, although in this country that right has sometimes been impeded by social workers in the case of even mildly disabled adults, and their rights to be parents even more so.
The programme interviewed several families including one which may fall foul of this particular law, but which appeared to be a happy marriage. However, community activists they interviewed were aware of a number of cases in which the marriages were abusive, resulting in self-harming behaviour from the disabled spouse. They also interviewed a mother and daughter who had been planning a marriage abroad (the ethnicity was not specified and she was given the pseudonym Janine), and although the daughter said she liked the man and was keen to get married, she did not really know what marriage entailed and when asked why she wanted to get married she said, “because that’s when I grow up” — perhaps this meant that women are not really considered adults in her culture until they are married.
One reason the programme did not touch on is why an Asian Muslim (or perhaps Hindu) family might be more likely to get an unsuitable marriage for their cognitively disabled son or daughter than any other. Families typically now look after their disabled children until their parents become too old and weak to do so (or die), and after that there are group homes which are a world away from the old long-stay hospitals although I do not doubt that there are also bad homes where there is bad care or even abuse. The situation is terrifying for any family in that situation and I have heard some parents say they hope they outlive their disabled children, so they are never forced into institutional care. Religious families would also be anxious that their children’s religious rights be respected, that they would not be required to eat food that is forbidden in their religion (like pork, or any meat if they were brought up vegetarian), and that they would not be cut off from the culture they had always lived in — they might have always spoken an Asian language rather than English, for example, so settling into any group environment might be much harder for them than for any of the other residents, and they would be terribly lonely. The family might also fear that they would suffer outright racism, or victimisation that targets their religion, from staff and other residents, something that cannot be overlooked in the light of the Winterbourne scandal.
Still, giving away in marriage people who cannot consent and do not understand what they are getting themselves into is not the answer to all this. It not only exposes the disabled person to risks but is also unfair on the non-disabled spouse, who may not have been in a position to give or withhold consent themselves (particularly if female), and may have expected a spouse who might look after them rather than to be a full-time carer to someone they cannot hold a proper conversation with. Much as the Jewish community has established kosher old people’s homes, Muslims (and other religious communities with special religious and dietary needs) must establish foundations to run similar homes for elderly and disabled Muslims and to provide some suitable home assistance where families are in difficulty, so that nobody feels the need to enter their disabled children into unsuitable and illegal marriages to make sure they are provided for when their families can no longer do so.
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