Examiners’ reports 2019

Examiners’ reports 2019

LA1031 Legal system and method – Zone B

Introduction

The question paper followed the same format as in 2018 and was split into three parts. Part A was a series of short questions on the seen case, Part B was a choice of two essays from six and Part C was a problem question to be answered with reference to a seen statute, which was also provided in the examination.

Comments on specific questions

PART A Candidates must answer these COMPULSORY questions about the seen case Swift v Secretary of State for Justice [2013] EWCA Civ 193. General remarks on Part A The Swift case was identified as the case to be studied in preparation for Part A in November 2018. Candidates intending to sit the May/June examination were required to submit a case note by 13 March 2018 and, ideally, this case note would have been used as a revision aid in preparation for the examination. Part A of the examination focuses solely on the text of the case of Swift and candidates should not have referred to any material other than Swift in answering the questions in Part A. An indicative answer to each of the questions in Part A and an excellent answer would have included almost all of this detail. Common errors The inability to formulate the ratio of the case was the most common error; given that this is an element of the case note it must be assumed that most candidates did not prepare this part well when writing their case note. Many candidates provided too much detail in their answers and in doing so obscured their main points and strayed into answering another question. When questions are specific, it is important to answer the question asked and only that question.

Question 1 Explain the claimant’s (Ms Swift) Convention claims under the European Convention on Human Rights. Ms Swifts’ claim was that s.1(3)(b) of the 1976 (FAA) was incompatible with her rights under Article 14 of in conjunction with Article 8 of the Convention because it unjustifiably discriminated against couples who lived together as husband and wife for less than two years, by excluding them, but not

1 those who have been cohabiting for two years or more, from the classes of family members entitled to claim damages for loss of dependency under the FAA. In the alternative, Ms Swift claimed, that the provisions of the FAA interfered with her right to respect for family life contrary to Article 8(1) of the Convention alone and that this interference was not justified under Article 8(2).

Question 2 What reasons does Lord Dyson MR give for his conclusion that ‘a wide margin of discretion should be accorded to the legislature’ in this case? Lord Dyson MR took into account three factors in deciding that a wide margin of appreciation should be given to the legislature in Swift. First, he identified that a difference in treatment based on a cohabitation period was not founded on what are termed ‘suspect’ grounds of discrimination. These are grounds based on personal characteristics (including sex, race and sexual orientation), which an individual cannot change and would require greater scrutiny. Secondly, the difference in treatment in Swift is based on general measures of economic or social strategy and in such cases the ECtHR decisions allow a wide margin of appreciation. His Lordship referred to a number of cases to support his view including Draon v France and Mosley v . Thirdly, the decision about providing a statutory right of action to the dependant of a victim of a wrongful death for damages for loss of dependency also raises important and difficult issues of social and economic policy. These three factors mean that the court should give a generous or wide margin of discretion to Parliament in relation to the legislative choices that it made in enacting s.1(3) of the FAA.

Question 3 Describe the ‘proportionality’ issue as explained by Lord Dyson MR. The proportionality issue relates to the period of time required for couples cohabiting as husband and wife to establish the necessary degree of permanence or dependency required for a right of action under the FAA. Lord Dyson MR said that it is not a question of whether the law is fair or could be made fairer or even if the law is the fairest way of pursuing the legitimate aim(s) of the Act. The obligation on the state is that it chooses a way which is proportionate.

Question 4 What is the ratio decidendi of this case? This is an example of a wide formulation of the ratio in Swift: Where discrimination is alleged based on difference in treatment in breach of Article 8 (in conjunction with Article 14) of the Convention and the difference in treatment is based on general measures of economic or social strategy, the court should give wide discretion to the legislature’s decision.

Question 5 In his judgment, Lord Dyson MR says: ‘The Act contained no provision for the right to claim damages for loss of dependency by cohabitants’. Which ONE of the following Acts is he referring to? a) The Fatal Accidents Act 1976. b) The Administration of Justice Act 1982. c) The Civil Partnership Act 2004. d) The Human Rights Act 1998.

2 Examiners’ reports 2019

Question 6 Eady J (the judge at first instance), cited by Lord Dyson MR, made a number of comments about the two-year period. Which ONE of the following did he NOT say? a) The two-year period is a bright line which provides a practical means of achieving a legislative objective. b) The two-year period is disproportionate and arbitrary. c) Where the balance should be struck is a matter of social policy. d) The two-year period is well within the broad margin of appreciation allowed in the context of decisions on social policy. Question 7 Which of the following, according to Lord Dyson MR, is the legitimate aim of section 1(3) of the Fatal Accidents Act? a) To confer a right of action on dependents of primary victims of fatal wrongdoing to recover damages in terms of their loss of dependency. b) To confer a right of action on dependents of primary victims of fatal wrongdoing to recover damages in terms of their emotional distress. c) To confer a right of action on dependents of secondary victims of fatal wrongdoing to recover damages in terms of their emotional distress. d) To confer a right of action on dependents of secondary victims of fatal wrongdoing to recover damages in terms of their loss of dependency. PART B

Question 8 Describe the sources of English law and explain which takes precedence or primacy over the other. General remarks Very few candidates answered this question, probably because a question on this topic has not appeared in Part B of the examination in recent years. It is, nevertheless, a straightforward question and required candidates to (1) describe both the domestic (national) and European (international) sources of English law and (2) to explain the interactions between these sources in terms of primacy. Law cases, reports and other references you might use R v Secretary of State for Transport, ex p Factortame (No 2) (1991); R v Secretary of State for Transport, ex p Factortame (No 3) (1991); Human Rights Act 1998; Earl of Oxford’s Case (1615); Costa v ENEL (1964). Common errors There were insufficient answers to this question to note any common errors but a number of answers misunderstood the question and thought it was about the doctrine of binding precedent.

3 A good answer to this question would… start by describing the sources of English law. The module guide describes these as law made by Parliament; law decided in the courts; EU law and law made under the ECHR. Many textbooks split it into primary legislation; delegated legislation; common law as judge-made law; EU law and ECHR. It would also be legitimate to discuss the distinction between the judge-made law that emerged through the courts of common law and the judge-made law that emerged through the Court of Chancery (Equity). In terms of precedence/primacy, the most obvious way forward would be to discuss the primacy of EU law over national law and better answers would also discuss law made by Parliament prevailing over judge-made law and possibly that equity trumps common law. Poor answers to this question… described, or partially described, the sources of English law but did not discuss the issues of primacy or precedent.

Question 9 ‘Only if judges follow the reasoning and decisions of their judicial colleagues will the common law become certain and predictable.’ Explain how judges follow the reasoning of other judges and discuss the benefits of having certainty in the law. General remarks This was a very popular question. In explaining how judges follow other judges’ reasoning the obvious starting points are the concepts of ratio decidendi and stare decisis and perhaps to highlight these as key features of the English common law. A discussion of the horizontal and vertical effects of binding precedent was also relevant in explaining in discussing how judges follow precedent. Reasons offered for maintaining certainty in the law might include: doing justice (like cases treated alike); enabling citizens to organise their affairs; efficiency and reducing the need for litigation. Law cases, reports and other references you might use The material you might use in answering the question depends on the approach taken. The Practice Statement (Judicial Precedent) (1966); Austin v Mayor and Burgesses of the London Borough of Southwark (2010); Knuller v DPP (1973); R v Shivpuri (1986); British Railways Board v Herrington (1972); Murphy v Brentwood (1990); R v R (1991); Knauer v Ministry of Justice (2016); Young v Bristol Aeroplane Co Ltd (1944); Gallie v Lee (1969); Davis v Johnson (1978). Ivey v Genting Casinos (2017) and Hedley Byrne & Co Ltd v Heller & Partners Ltd (1964) for discussions of how obiter dicta can be important in the future development of the law. Common errors The most common error was to answer only the first part of the question and to limit the answer to the doctrine of precedent without any discussion of whether certainty was beneficial in law-making. A good answer to this question would… start by identifying the scope of the answer and then begin by explaining the nature of precedent in English law through the concepts of ratio decidendi and stare decisis. Excellent answers might also include some discussion of how obiter dicta can sometimes be as important as the ratio of a case in future developments of the law. A description of the vertical and horizontal nature of precedent with examples as needed might lead to a discussion of Davis v Johnson and the reinforcement of the need for vertical precedent to be strictly followed and then to offer reasons for (or against) maintaining certainty through precedent.

4 Examiners’ reports 2019

Poor answers to this question… described the nature of precedent and went into excessive detail about the Practice Statement (Judicial Precedent) (1966) and the cases considered using the Practice Statement and paid little or no attention to how this contributed to creating certainty in the law.

Question 10 ‘If the words of an Act are clear, you must follow them, even though they lead to a manifest absurdity. The court has nothing to do with the question whether the legislature has committed an absurdity.’ (Lord Esher MR.) Explain why the literal rule has generally been abandoned by the courts and discuss how approaches to statutory interpretation today have improved statutory interpretation. General remarks The quotation illustrates the literal rule at its most extreme. The attitude exemplified by Lord Esher in the quotation from the case of R v The Judge of the City of London Court (1892) is that the job of the judiciary is to interpret the law following the words enacted by Parliament and, if this leads to an ridiculous outcome, then so be it. This approach attempts to draw a clear line between the roles of the judiciary and the legislature. The question asks candidates to do two things: first, to explain why the literal approach is no longer much used; and secondly, to discuss how the approaches used in interpret statutes today have improved matters. When discussing how something has improved matters, it is important to remember that things can only be said to be better (or worse) than another thing if you have something to measure them against. A person who is 1.8 m tall is taller than average once you know that average height is 1.7 m but what is the benchmark for saying that a particular approach ‘improves’ statutory interpretation? Perhaps approaches to statutory interpretation that iron out the technical absurdities created by Parliament and try to achieve the purpose Parliament intended are better than those which simply highlight the absurdity? There is no single answer to this but it is an issue that should have explored. Law cases, reports and other references you might use The module guide identifies a number of cases exemplifying the literal rule, such as R v Harris (1836); R v Maginnis (1987); R v Brown (1996). Candidates might also have made reference to cases illustrating the purposive approach to interpretation such as Magor and St Mellons RDC v Newport Corporation (1950) but the cases cited would very much depend on the approach taken in answering the question. Common errors The most common error was to rehearse a formulaic answer simply working through a list of cases under the literal; golden and mischief ‘rules’ and to otherwise ignore the specific question. Such answers rarely achieve a pass mark and where they do are limited to a third class mark. A good answer to this question would… begin by explaining how the candidate would answer the question and the approach to be adopted. It might then have explained that the approaches to statutory interpretation are judge-made rules and have varied from time to time. Rather than simply describing the ‘rules’ of interpretation better answers would identify what judges are trying to achieve when they interpret statutes and then built on this to evaluate why a literal approach may not be the best approach.

5 Poor answers to this question… described the literal, golden, mischief and purposive approaches with an accompanying list of cases associated with each approach and not give any consideration to why the literal rule is not used much today. Student extract The statement supplied quotes Lord Esher MR in the case of R v Judge of London City. This was the case decided in the late 1800s. The date of the case adequately sums up the place of the literal rule in history. It is a complete new landscape in regards to statutory interpretation in the UK today. This answer will discuss briefly the shift in the courts away from the literal rule towards the approach that is used today before commentary on the ways better statutory interpretation has been achieved in the current legal landscape. Statutory interpretation involves courts applying the law. In theory, it is merely a simple task of taking an Act that spells out the will of Parliament and applying it to a set of facts. However, in practice it was never that easy. Bennion, in his book ‘Statute law’ identified a number of factors that caused hardship in deciphering or interpreting a statute, forcing the courts to actively interpret and develop approaches towards construing the meaning of a piece of legislation. The difficulties include punctuation such as ellipsis that altered the meaning of a statement, the generality of language used as it is meant to cover a wide range of situations but also being vague and even deliberate vagueness where the provision is politically contentious. There are multiple issues to consider under the sphere such as the approaches, rules of language, presumptions and aids to interpretation. However, this answer will pay the most attention to the approaches to interpretation to highlight the courts’ shift. This is so, as rules of language apply across the board. The first ever approach to statutory interpretation was the literal rule. The literal rule is perfectly encapsulated in Lord Esher MR’s statement that we are supplied with, in the sense that the courts would give the words in a piece of legislation its ordinary meaning and apply it quite literally. There was no room for considering justice even if it could result in manifest absurdity. … The evolution of approaches to statutory interpretation has improved the legal landscape many times. Cases such as Quintavalle v SS for Social Security and Safety show us that courts are willing to adapt using a purposive approach to technological and social changes. The mane [sic] modern approach to statutory interpretation has allowed judges to make law in limited circumstances and that is generally satisfactory owing to their ability to apply legislation practically to factual situations. Furthermore, despite critics alleging the usurpation of Parliament’s mantle, it is submitted that only by deciphering Parliament’s intention proactively as it is done in today’s times, can true statutory interpretation be achieved. Comments on extract The first paragraph, the introduction, is not a great introduction but it contains some interesting elements. First, it shows that the candidate knows the case name (it is in fact R v The Judge of the City of London Court but this is a very minor point) and that the literal rule belonged to a particular historical period. It would have been helpful to say a little more about the ‘approach used today’ and give a few more pointers as to what path the essay would take.

6 Examiners’ reports 2019

The second paragraph recognises that the theory that the courts simply apply the statutory words is, in reality, a much more complicated task and suggests that the very nature of language in an Act created in general terms makes for difficulties in applying these words to specific situations. There is an opportunity here to connect the discussion more explicitly to the quotation in the question, for example: the literal approach suggests that the statutory interpretation simply involves the courts applying the words in an Act to a given set of facts but in reality statutory interpretation is never that easy. The third paragraph doesn’t take the essay very far. It mentions a shift in direction, but like the introduction, does not give any hint of what this might be. It is incorrect in the assertion that the literal rule is the ‘first ever approach to statutory interpretation’ in historical terms and it overlooks the facts that the courts still use the literal approach as shown by the House of Lords decision in R v Brown (1996). The final paragraph, which is the concluding paragraph of the essay, provides a good end to the essay. Although the candidate has not explicitly identified the fact that the approaches to statutory interpretation are ‘rules’ the court themselves have made and involve the courts deciding how far they can go in trying to achieve what Parliament intended, the candidate recognises that judges engage in limited law- making and considers that statutory interpretation is improved when judges are proactive in terms of technological and social change.

Question 11 ‘The Judicial Appointments Commission, the senior judiciary, and the legal professions have all expressed their commitment to a diverse judiciary, but despite this commitment, little has changed.’ Describe the attempts by the Judicial Appointments Commission and others to create a diverse judiciary and discuss why these have not resulted in significant changes. General remarks The question considers the topical matter of diversity in the judiciary and asks for an account of what has been done to try and create a more diverse judiciary and an exploration of why, despite these attempts, the judiciary remains relatively homogenous. Law cases, reports and other references you might use The Essential and Further reading at 5.10 in the module guide. Common errors The lack of up-to-date knowledge was a particular issue. Many candidates noted that Lady Hale was the first woman to be appointed to the Supreme Court but failed to mention that she is also the court’s first woman President and that she was joined by Lady Black in October 2017 and Lady Arden in October 2018. Many answers restricted the idea of diversity to the gender imbalance in the judiciary. A good answer to this question would… perhaps start by outlining what is meant by a diverse judiciary in terms of representation of society, equal opportunity and the legitimacy of the judiciary and underrepresentation on the basis of race, gender and social background. An account of what has been done to create diversity among the judiciary would include discussion of the Judicial Appointments Commission (JAC) noting that the JAC recommends for appointment rather than appoints and that it selects solely on merit but is required to encourage diversity in the selection pool but the equal merit provision in the Crime and Courts Act 2013 enables the balance to tip in favour of underrepresented groups (gender/race only). A discussion of why there have been

7 no significant changes might note some signs of diversity in terms of gender and race and excellent answers would note that the women in the Supreme Court are all white and primarily from the Oxbridge backgrounds of their male peers. Reasons for the slow pace of change would include: experience deficit; self-exclusion; selection bias; the illusion of merit as concept for selection. Poor answers to this question… rehearsed the ‘pale, male, stale’ debate without considering the modest changes that have been achieved and the complexity of the problem.

Question 12 ‘The Legal Aid and Advice Act 1949 was designed to provide legal advice for those of limited resources, so that no one will be financially unable to bring a just and reasonable claim or defend a legal right.’ Briefly describe the civil justice system in and discuss the extent to which it can still be said to fulfil the aims of the Legal Aid and Advice Act 1949. General remarks The question called for an explanation of the civil justice system and a discussion of whether the aims of the Legal Aid and Advice Act 1949 were still being met today. Law cases, reports and other references you might use The Essential and Further reading at 6.3, 6.4 and 6.5 of the module guide. Common errors A number of answers failed to describe the civil justice system at all and restricted their discussion to the topic of legal aid. It is important to answer both parts of the question to achieve good marks. A good answer to this question would… start by describing the breadth of the civil justice system: contract law, the law of tort, land law, landlord and tenant, family law, administrative law, company law and employment law and so on. They might describe the different burdens of proof, the civil court structure and the fact that the individual claimant (rather than the state) must initiate proceedings and the remedies available. The scope of Legal Aid has been reduced since the 1990s and LASPO (2012) further reduced this to exclude most civil and family cases. LASPO has not ensured that even those who are entitled to Legal Aid get it; it has reduced publicly funded legal services; increased litigants in person and reduced the use of mediation. Inevitably, any conclusion would be that the aims of the Legal Aid and Services Act 1949 are no longer met, or at best met inadequately. Poor answers to this question… tended to be either too descriptive of the civil justice system or omitted discussion of the civil justice system entirely. They also ignored the aims of the Legal Aid and Services Act 1949 and offered only a critique of LASPO.

Question 13 ‘Juries that are not representative of society weaken public confidence in the criminal justice system. The defence should be able to insist that three members of the jury are from the same background and ethnicity as the defendant.’ Describe the way in which juries are selected and discuss the arguments for and against allowing the defence to demand a jury include jurors selected on the basis of background and ethnicity.

8 Examiners’ reports 2019

General remarks The question called for a brief description of the system of jury selection and a discussion of whether or not juries should have an element of ethnic composition. The quotation also drew attention to the point that public confidence in juries could be undermined if juries were not seen as representative of society and this provided scope for candidates to discuss what ‘representation’ might mean. Law cases, reports and other references you might use R v Ford (1989); R v Smith (2003). Common errors None. A good answer to this question would… start by outlining how the question would be answered and go onto explain how juries are selected today on the principle of randomness from the electoral roll and by a court official for a particular trial. R v Ford establishes that there is no requirement in English law for a defendant to demand the inclusion of jurors on the basis of race or ethnicity and the issue has been considered by the Runciman Commission; the Auld Review and under the HRA in R v Smith (2003). The arguments pro might include: public confidence in fairness; juries that fail to represent the diversity of British society; perceptions that the high number of BAME defendants are caught in a justice system that is overwhelmingly white. The module guide refers to the work of Thomas (2007, 2010), who found that there is no underrepresentation of BAME groups summoned for jury service or willing to serve on juries and her analysis of jury verdicts and trial reconstructions found no evidence of discrimination. Further considerations might include: the principles of random selection; the risk of creating tensions within the jury by placing undue weight on those specially selected; the requirement for a process for determining what numbers should be of the same race/ethnicity as the defendant on a particular jury. Poor answers to this question… described at length the system of jury selection pre-1974, under the 1974 Act and post-2003 and ignored the question of the part juries play in strengthening public confidence in the criminal justice system and arguments for and against including jury on the basis of their background and ethnicity. Student extract The question focuses on the composition of the jury panel and the issue that if the composition of the jury appears unfair that this will erode public confidence in the jury system. This statement will be discussed and whether jury composition should be changed. The right to jury trial can be traced back to the 1215 which provides ‘right to be tried by own peers’. This is after the abolishment of the trial by ordeal and trial by battle. This shows that from the very start, the issue of guilt and innocence has been determined by some other means rather than leaving it to the government or the court. This is to prevent oppression by the government and for the lay people to decide based on facts as to determine the guilt and innocence as this involve liberty of the accused. It has been propounded by Zander that jury plays a symbolic role and it was further stated by Devlin J that jury is the lamp that shows freedom lives. It must be noted that the jury system provides lay participation and a barometer of public feeling towards the law.

9 Before the Juries Act 1974, the jury was selected based on ‘property qualifications’ i.e. only certain people who own property can be selected for jury service. This is very narrow as women and poor people do not own property at that time meaning only rich people could be jury members. This was changed by the Juries Act 1974 which provides that juries are ‘randomly selected’ from the electoral register and only 18-75 year old people are qualified. Furthermore there is a residency requirement. Random selection was aid to provide a cross-section of people and is representative of the public. However, Zander propounds that this may not be true as ethnic minority people generally do not register on the electoral roll and as younger generations have greater mobility, they don’t sit as jurors. The composition of the jury is further weakened where it used to be that there are certain people who are excluded as of right or by application from serving on a jury. This is where they are serving in the administration of justice or the clergy. Doctors, police and judges used to be excluded. Sir Robin Auld criticised this exclusion for depriving the jury of the skill and experience of these people and seems to indicate that jury is for the people who are not smart and educated enough to avoid jury service. Comments on extract The first paragraph interprets the question fairly well. The mention of trial by ordeal and trial by battle in the second paragraph is unnecessary and something of a distraction from the point that a jury trial is a trial by one’s peers. The third paragraph rightly draws on relevant material and draws the general discussion to a close. The fourth, fifth and sixth paragraphs go into too much detail about the selection of juries before 2003. The question asks for a description of how juries are selected not how they were selected and, while it is relevant to identify the principle of random selection, there is no need to discuss the formerly excluded categories. The point about the problem of using the electoral roll to select jurors and the impact on different groups is interesting but is not picked up in the later discussion and could have made a good transition from the discussion of how juries are selected to whether they should include people from the same background as the defendant.

PART C

Question 14 Eric works in the timber industry and frequently travels to South America for work. On 6 March 2019 Eric travelled to Brazil, he was last seen in his company’s office in the city of Boa Vista, Brazil on 10 March 2019. On 20 March 2019 Eric’s employer received a letter from an environmental group opposed to the deforestation caused by the timber industry stating that they had kidnapped Eric and demanded $1 million for his safe return. The Brazilian police believe that Eric is being held in a remote part of the Brazilian Amazon. Eric usually lives in Cardiff, Wales with his mother Freda and his son Giles (aged nine). Eric, Giles and Freda live in a large family home that Eric also shared with Holly, his wife. Holly separated from Eric and left the family home six months ago, she lives in a small apartment in Cardiff and Eric pays the monthly rent. Freda is unable to pay Giles’s school fees, which are due on 20 May 2019, as well as the household gas, electricity and property tax bills. Holly owes two months’ rent on her apartment. General remarks The problem question requires the application of the law found in the Guardianship (Missing Persons) Act 2017 as provided to the facts of the question.

10 Examiners’ reports 2019

The statute was discussed in a Lecture Plus and a sample question and detailed answer and marking guide were also provided. The quality of answers varied enormously and it seems that many candidates did not make use of the extensive resources available for this question. The answers below illustrate how the statute should be cited and applied in answering the question. Please note that the statute for LSM changes each academic year. Law cases, reports and other references you might use Excerpts from the Guardianship (Missing Persons) Act 2017 as provided. Common errors Failing to cite the Act precisely and properly was a common error. It is not enough to say that a provision is found is s.1 when it is in fact is s.1(1)(a). Another common error was to spend time copying out the Act in full. This is a waste of time; you have the Act and so does the examiner and the Act needs to be cited only insofar as it is necessary to apply it to the facts. Many candidates thought that Eric and Holly were divorced when they are merely separated and Holly is still Eric’s wife and so performed badly in part (b). a) Is Eric a ‘missing person’? To determine if Eric (E) is a missing person we must look at s.1. E is ‘absent from [his] usual place of residence’ he left the family home on 6 March to travel to Brazil and so s.1(1)(a) is fulfilled. E is also absent from his ‘usual day-to-day activities’; he was last seen at his office on 10 March and so s.1(1)(b) is fulfilled. To be ‘missing’ for the purposes of the Act, E must also meet the first or second condition required by s.1(1)(c) as set out in s.1(2) and s.1(3). Section 1(2) is relevant here, specifically s.1(2)(b) where a ‘person’s whereabouts are not known with sufficient precision…’. This applies to E, he has not been seen or heard from since 20 March 2019 and the police believe he is being held in a remote part of the Brazilian Amazon. b) On 10 May 2019 could Freda and/or Holly apply for a guardianship order and, if so, could the court make such an order? An application would be made under s.2 of the Act. Freda (F) cannot apply to be appointed guardian since E was not living in England and Wales on the day before he disappeared (s.2(2)(a)) and so only Holly can apply as she is E’s wife and lives in Cardiff, Wales (s.2(2)(b)). To make the order, the court has to be satisfied that H is 18 years old (s.4(1)(a)). On the facts she must be; she has a nine-year-old son. We do not know if H will consent to be appointed (s.4(1)(b)) but there is nothing to suggest that will not when she and her son will benefit from the action. Likewise, we do not know if H is a suitable person (s.4(1)(c)) but there is nothing to suggest otherwise. Also, in s.4(1)(d), the court would need to be satisfied that H would act in E’s best interests and it is probably in E’s best interests that in his absence, his son G has his mother around. Under s.5, a guardianship order can relate to some or all of E’s property (s.5(1)(a) and (b)) and it can only relate to the affairs of one person. However, under s.5(4) the court must be satisfied that the absence condition in s.3(2)(b) or the urgency condition in s.3(3) must be met before making an order. The condition in s.5(4) is also found in s.3(1). Under s.3(2)(b) there is a 90-day period for the absence condition and E went missing on 10 March 2019. On 10 May 2019 he has been missing about two months and this falls well short of 90 days. This means that

11 s.3(3)(a) – the urgency condition – must be satisfied. The facts point to decisions being needed – school fees; household bills; rent – before the absence condition is met. c) Can the court make a guardianship order in respect of: i) Giles’s school fees As noted above, any guardianship order made by the court will need to satisfy the urgency condition in s.3(3). Since there appear to be no other funds to pay G’s school fees expenses it seems the urgency condition is satisfied. School fees and other maintenance expenses are not specifically mentioned in the Act but under s.6(3)(h) a guardian may make a gift from the missing person’s property and s.6(7) allows for gifts to be made for the maintenance of dependants which are defined in s.6(9) as those who would ‘reasonably rely’ on the person who is missing for their maintenance. We know that G, as E’s nine-year-old son, relies on his father to pay his school fees and so the Act seems to permit such a payment. It should also be noted that the court has wide discretion in making an order as per s.5(1)(b), s.5(3) and s.6(1)(b). ii) the household bills The household bills: gas; electric and property taxes are probably best seen as debts and obligations of E under s.6(3)(e) and thus also fulfil the urgency condition noted above. iii) the rent for Holly’s flat? The rent for Holly’s flat is likewise probably debts and obligations of E under s.6(3)(e) and thus also fulfil the urgency condition noted above.

12