Justice CommitteeWritten evidence from the APPG for Runaway and Missing Children and Adults
1. Overview
1.1 The APPG for Runaway and Missing Children and Adults led an inquiry into support for families of missing people in June 2011. The second inquiry session examined whether there is a need to reform current presumption of death provisions in England and Wales.
1.2 After listening to and carefully considering the oral evidence presented in this session, alongside written submissions (including from the Ministry of Justice and the Scottish Government) APPG members unanimously agreed that specific presumption of death legislation is necessary and recommended in its inquiry report:
“That the Ministry of Justice provides a framework for consultation on presumption of death and guardianship provisions, exploring the evidence base that exists in relation to presumption of death in Scotland and Northern Ireland and in relation to guardianship in Australia.
The Inquiry recommends that this framework, along with a timetable for future action, should be in place by the end of the current session, with any resulting provisions to be implemented by the end of the current Parliament.”
1.3 The APPG therefore welcomes the Justice Select Committee’s decision to hold a short inquiry into this issue and is pleased to submit written evidence as part of the inquiry process.
2. Response to Inquiry Questions
2.1 Does the current system work effectively?
2.11 The APPG inquiry heard from a range of stakeholders about their attempts to navigate the legal system around presumption of death as it stands in England and Wales. Their accounts strongly suggest that the current system does not work effectively.
2.12 Patricia Barratt, a senior associate at Clifford Chance, told the APPG that presumption of death in England and Wales is a confused area of law; a patchwork of statutory legislation, primary legislation, secondary legislation and probate laws mixed with common law provisions - something that was illustrated by the Ministry of Justice’s written submission.
2.13 Martin Houghton-Brown, CEO of the charity Missing People, noted that the emergency measure around presumption of death which was introduced following the Asian Tsunami appears to indicate that the Government recognises this.
2.14 The presumption of death inquiry session uncovered the following problems with legal provisions as they currently stand:
The provisions that exist in common law, statutory legislation, primary legislation, secondary legislation and probate laws do not apply for all circumstances where proof of presumed death is required.
Neither the limited statutory provisions, nor the common law can assist in the issue most directly affecting a person’s status—the registration of their death.
One of the measures, a certificate of presumed death, is only available to servants of the Crown ie armed forces, merchant seamen and embassy workers and not to civilians, highlighting potentially discriminatory treatment.
Legal professionals are unfamiliar with and confused by presumption of death provisions and are therefore unable to give advice effectively.
Police forces struggle to provide families of missing people with guidance about this issue.
Demands by legal professionals and families are placed on charities such as Missing People to provide clarity.
Some applications to the courts fail as a consequence of uncertainty about what will happen if the missing person re-appears.
Presumption of death processes cause confusion and emotional distress to the families of missing people in England and Wales.
2.2 Does the current system create difficulties for families, and if so, how can these be resolved?
2.21 In the course of its inquiry, the APPG heard from family members of missing people who communicated a number of difficulties with the current system. These were mostly related to its complexity. Issues that arise for families when attempting to use different provisions in law for different purposes include:
The length of time that applications take.
The expenses incurred by families as they navigate the legal system.
The time and costs to families of having to prepare paperwork and other evidence.
The mistaken belief that action can only be taken seven years after a person has disappeared, leading many families to delay taking action even where there is evidence to indicate the missing person is likely to be dead ie a suicide note
Legal professionals being unable to advise and guide families through the legal system as it currently stands resulting in frustration and confusion.
Legal professionals providing unhelpful responses to families as a consequence of their lack of understanding about current provisions—for example, suggesting that the cost of accessing legal provisions is more costly than a missing person’s estate is worth.
The legal documentation acquired by the family through the court system not being accepted by banks/insurers.
Perceived unfairness that families living in Scotland and Northern Ireland have access to a single legislative process that results in the issuance of a presumption of death certificate for all purposes.
2.22 The family members who provided evidence to the APPG inquiry indicated that many of these difficulties could be resolved through the introduction of a single, straight forward and standard system that is easily accessible to families and legal professionals.
2.23 Missing People also indicated that a single piece of legislation which would result in a single framework and point of entry is what needs to be aimed for. This would facilitate the development of clear guidelines so that families of missing people and legal professionals alike would know how to approach the issue of evidencing a presumed death and what to expect.
2.3 What can we learn from the experiences of Scotland and Northern Ireland which have Presumption of Death Acts?
2.31 Members of the APPG heard from families in the course of its inquiry who are aware of the Presumption of Death Acts in Scotland and Northern Ireland and who believe that they provide a better response than the system that currently exists in England and Wales.
2.32 Missing People indicated that, unlike the current system in England and Wales, it is not aware of any evidence to suggest that families are experiencing any difficulties in relation to presumption of death legislation in Scotland and Northern Ireland.
2.33 The written evidence received by the APPG from the Scottish Government states that over the 30 years that the Presumption of Death (Scotland) Act 1977 has been operating, the general perception is that it is operating effectively. This view is confirmed by the Registers of Scotland.
2.34 The introduction of Presumption of Death legislation in Northern Ireland, just two years ago, carefully considered the experience of Scotland and found legislation to be necessary, despite the existence of sensitive sectarian issues that might have created political discord.
2.35 Having compared the legislation that currently exists in England and Wales with the rest of the UK, Patricia Barratt of Clifford Chance told the APPG that there is a lot to learn from the simple systems which operate in Scotland and Wales.
2.36 APPG members were usefully referred by the Scottish Government to the 1974 Report on Presumption of Death produced by the Scottish Law Commission (SLC). This highlights the policy considerations that led it to recommend to the Scottish Government that: the law on this subject should be embodied in a single comprehensive statute. Many of the issues raised by the SLC report are similar to those identified in relation to England and Wales:
Presumption of life at common law: in the absence of direct or circumstantial evidence of earlier death, the onus of proof of the death of a missing person is always on the person who asserts it.
Existing statutory presumptions of limitation of life are not suitable for all purposes
The expense occasioned by the multiplicity of proceedings.
The SLC report also highlighted to the APPG additional considerations, including:
The variety of processes required to establish a person’s death for different purposes constitutes a “serious defect” in the current law. For example, a wife whose husband has disappeared must initiate one action to establish her right to re-marry but must initiate another process to recover monies under insurance policies on her husband’s death. To see a person being treated as alive for some purposes under the common law, but dead for others by virtue of statute law is puzzling.
Multiple processes could lead to judgements in apparent conflict since, if one proceeding presumes the missing person has died, this is not automatically binding in other proceedings.
Common law around this area was developed against a social and technical background which has radically changed. Whereas when the law was developed, mere silence was not held to be sufficient per se to overcome the presumption of life, the ease of modern communications is such that, where a person has been continually absent for their home and family and there is no evidence of him/her being alive, then they should be treated as dead.
2.4 Is there a need for legislative or procedural change in England and Wales? If so, what form should these changes take?
2.41 Work undertaken by APPG member Tim Boswell MP (now Lord Boswell of Aynho) on presumption of death has considered a number of possible options for change, with the primary objective being to simplify court and administrative procedures for the families of missing people who are presumed to be dead.
2.42 Options include: administrative steps in the form of a Code of Conduct for financial and insurance organisations dealing with the affairs of a missing person and corresponding guidance for public sector organisations; new powers for coroners; changes to the system of death registration; and a new system allowing certification of presumed death.
2.43 Lord Boswell concluded, along with Clifford Chance and Missing People, that the last option, a new system of certification of presumed death has advantages over the other options in terms of clarity and effectiveness.
2.44 After hearing the evidence outlined in response to questions one and two above, the APPG is convinced that a new, single piece of legislation is still required. This would ensure that the legal system around presumption of death is comprehensive and deals with every circumstance that families find themselves, whilst at the same time safeguarding their emotional and financial well-being.
2.45 The table below illustrates how a Presumption of Death Bill would address the difficulties that were highlighted through the APPG inquiry session:
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Difficulties with the current system |
Solutions proposed within the draft Presumption of Death Bill |
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The provisions that exist in common law, statutory legislation, primary legislation, secondary legislation and probate laws do not apply for all circumstances where proof of presumed death is required. |
The practical and legal effect of a declaration of presumed death is that the missing person may be treated as dead. The draft Bill provides explicitly that the declaration shall be effective for all purposes. |
|
|
Neither the limited statutory provisions, nor the common law can assist in the issue most directly affecting a person’s status—the registration of their death. |
The draft Bill makes provision for the maintenance of a Register of Presumed Deaths by the Registrar General. The draft Bill also introduces a new mechanism by which the families of missing persons would be able to apply for a presumption of death certificate which would be valid for all purposes, in the same way as a death certificate. |
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|
One of the measures, a certificate of presumed death, is only available to servants of the Crown ie armed forces, merchant seamen and embassy workers and not to civilians, highlighting potentially discriminatory treatment. Perceived unfairness that families living in Scotland and Wales have access to a single legislative process that deals with all aspects of resolving the missing person’s affairs. |
The draft Bill harmonises presumption of death legislation across the UK. |
|
|
Some applications to the courts fail as a consequence of uncertainty about what will happen if the missing person re-appears. |
The draft Bill deals with the possibility that the missing person is later found to be alive or to have died at a different time from that stated in the declaration of presumed death, by giving the court the power to make a variation order. The draft Bill places a duty/may require a trustee/person receiving any capital sum to take out insurance for any claim which may arise. |
|
|
Presumption of death processes causing confusion and emotional distress to the families of missing people. Legal professionals being unable to advise and guide families through the legal system as it currently stands resulting in frustration and confusion. Legal professionals are unfamiliar with and confused by presumption of death provisions and are therefore unable to advise families effectively. Police forces struggle to provide families of missing people with guidance about this issue. Demands placed by both legal professionals and families on charities such as Missing People to provide clarity. |
The draft Bill establishes a single and straight-forward process that can be understood by all. |
2.46 The APPG noted during the oral evidence sessions that families may seek presumption of death provisions some years after the missing person’s disappearance and that a mechanism is also required to manage a missing person’s affairs in the short term. As such, the APPG’s recommendation in relation to introducing Presumption of Death legislation also includes the need for consultation on and provision around a system of guardianship.
3. Conclusion
3.1 Members of the APPG were very disappointed that the Ministry of Justice chose not to attend its oral evidence sessions on presumption of death and guardianship.
3.2 It is the APPG’s understanding, based on the oral evidence provided by Missing People, that the Ministry of Justice is not contesting that changes to the presumption of death system are necessary; rather that they do not consider them to be a business priority and, as such, have been unwilling to give any time to this matter and take it forward.
3.3 The APPG believes that legislative change in this area would do a great deal to strengthen the cross-governmental policy approach to missing people. It is delighted that the Home Office Minister responsible for missing people, James Brokenshire MP, accepted the overarching recommendation in its inquiry report which called for the Government to develop a national strategy on missing persons.
3.4 The APPG recognises the difficult financial times in which the Government is currently operating, but believes that having one system for presumption of death through which family members would be able to obtain a certificate of presumed death for all purposes would result in cost savings, not least in relation to reduced court time.
3.5 Time and resources have already been channelled by Clifford Chance, Missing People and Lord Boswell into developing a draft Presumption of Death Bill for England and Wales. Clifford Chance and Missing People have also worked together and with the Ministry of Justice to develop a public consultation paper. The charity has further indicated that it would be willing to manage a consultation on the Ministry’s behalf.
3.6 Based on these considerations and balancing them against the urgent needs of families, the APPG hopes that the Ministry of Justice will be prepared to advance the process towards creating Presumption of Death legislation for England and Wales to a stage where a timetable for future action is in place by the end of the current session, with any resulting provisions implemented by the end of the current Parliament.
September 2011