Justice Committee Presumption of Memoranda

PD 01 Dr R Nelson PD 02 Rachel Elias PD 03 Hugh Eddowes PD 04 Ministry of Justice PD 05 Claire Chandler PD 06 Stephanie Hynard PD 07 Missing People PD 08 Clifford Chance LLP PD 09 UK Missing Persons Bureau PD 10 Judy Lancaster PD 11 Vicki Derrick PD 12 APPG for Runaway and Missing Children and Adults PD 13 Association of British Insurers (ABI) PD 14 Kirsten Bennett PD 15 AnastasiaRomanos PD 01

Written evidence from Dr R Nelson

Summary This submission relates to my brother who had been missing for over 10 years. It represents only a small financial value but points to the difficulties in dealing with the system. My experience indicates that the HMCS and system are just not set up to deal with such cases and that most solicitors have essentially no experience in this field. There needs to be a simple and clear system in place to deal with .

1. My brother suddenly disappeared in 2000, he had been living “outside the system” for some time. He was unemployed, had no income, had no bank account, did not receive any benefits and had not paid taxes etc. He had no real fixed abode, but I kept in touch through a mobile phone that I gave him. This suddenly went dead and I had not heard from him since then. I went to his last known “address” but found nothing, I then reported him as a to the police. In 2001, by chance a letter arrive at my mother’s old address, she had been dead for many years, which was forwarded to me by the then current occupants. This letter was from Scottish Widows addressed to my brother informing him that a paid up pension was due, this was in fact only for £1500. I contacted Scottish Widows, but they said that they were unable to pay the money until a had been submitted.

2. I waited for some 10 years (I understood that at least 7 years was necessary) before I re- contacted Scottish Widows. I took advice and realised that the sum of money involved was so little that it was not appropriate to use a solicitor. I searched the WEB and found advice from the “Missing Peoples” organisation, who suggested that I contact the Courts directly, by letter. Luckily I had an old Will which my brother and I had organised well before his disappearance.

3. After some time a helpful junior officer in the HMCS replied asking for full details including what steps I had taken to find my brother. I submitted a detailed report, this junior officer submitted this to the Probate Registrar who agreed to accept a personal submission for probate as the sum of money was so small. After numerous e-mails and letters and very helpful guidance from the Registrar I eventually submitted an acceptable request which included appropriate affidavits and a completed PA1 together with letters from Scottish Widows. All the paperwork was the passed to a Probate Commissioner to deal with. By now the process had taken some 8 months.

4. At this stage I had assumed that it now would be dealt with quickly, but this was far from the case. It took another year to be dealt with, the case being passed from person to person, the excuse being that it was an unusual case which had no death certificate etc. I contacted the Chief Officer, who agreed to sort it out, but nothing happened. I then threatened to contact my MP, and at last this got things moving. At the final face-to-face interview, there was concern that there was no death certificate. However, eventually The Grant of Representation was granted. This was sent to Scottish Widows and the small was paid.

5. I think that the HMCS and Probate system are just not set up to deal with such cases. If the financial amounts are small then it is perhaps too costly to use Solicitors. In any case I have found that most solicitors have essentially no experience in this field. There needs to be a simple and clear system put in place to deal with Presumption of Death, This would save significant costs, time and worries. I believe that I was particularly lucky because, by chance, I found a junior officer in the HMCS who took it upon himself to help out. The “Missing Peoples Organisation” were also very helpful

August 2011 PD 02

Written evidence from Rachel Elias

1. I Rachel Elias, welcome the opportunity to contribute to the Justice Select Committee Inquiry into Presumption of Death.

2. I have a missing brother, Richard James Edwards, who disappeared on the 01st February 1995 and has not been seen or heard of since that date. At the time of his disappearance he was a member of the successful British band the ‘Manic Street Preachers.’

3. On the 13th October 2008, the , Probate Registry of Wales, issued my family a Grant of Representation in respect of my missing brother Richard James Edwards in order to resolve his legal and financial affairs.

4. On the 16th June 2011, I contributed to the ‘All-Party Parliamentary Group for Runaway Missing Children and Adults’ – Inquiry – Support For Families of Missing People – Report with recommendations (July 2011.) I provided oral evidence at the session entitled ‘Resolving Practical Affairs – Presumption of Death’ (16/06/11 – 10.00 – 12.00 – Committee Room 5, House of Commons.)

THE CURRENT SYSTEM

5. From my own personal experience of obtaining a court order for leave to swear the death of my brother, I found the current system does not work effectively and proved to be a confusing and unclear process.

6. Initially it proved difficult to find information about how to get started. There appeared to be no advisory organisations that I could access. In addition the family solicitor, from an established and experienced firm, stated that he had never before dealt with such a matter. Indeed he informed us that he would be required to ‘go away and look further into the matter’ before he could proceed and assist us.

7. Regrettably, and from the outset, I was unclear on the processes that I would be required to follow in order to obtain the court order for leave to swear the death of my brother. Constant questions were raised in my mind such as – would I be required to go to court and give evidence? Would there be a death certificate? Would an be held? Would H.M. be involved? Such questions remained unanswered for me during the whole process and were a source of great distress to me.

8. The whole procedure for obtaining probate took approximately 3 years and cost £3,500.00. The final amount was assessed and charged to us at the end of the procedure. Up until this point, my family were not aware of how much the matter would cost as there were no advisory organisations to signpost this question to. PD 02 9. This was the first application for probate. Initially the Probate Registrar was not satisfied with my affidavit and returned it on its first draft. In total it had taken me approximately three months to write and I found this a difficult piece of work as I was unclear as to the precise nature of what the Registrar requested. Once satisfied with my affidavit, the Registrar then requested second and third affidavits to be sworn from other parties in order to corroborate the main affidavit and also requested copies of additional corroborative evidence.

10. I found obtaining copies of the additional corroborative evidence difficult as there had been a thirteen year gap since the date of his disappearance.

FURTHER DIFFICULTIES

11. Regrettably, and despite being issued a Grant of Representation from the Probate Registry of Wales for my missing brother Richard Edwards, I have still encountered problems with Institutions not accepting the Grant.

Examples have included PRS – The Publishing Rights Society – and Lloyds TSB. Both institutions explicitly refused to accept the Grant of Representation stating that it was not a ‘death certificate.’ Such matters have since been resolved following us, as a family, having to send the original court order to each organisation and further having

to explain the nature of the court order to them. This proved both time consuming and upsetting to us as a family.

12. I also remain disappointed with the current system as the law states that

“An order for leave to swear death is retained in the registry and copies of it are never given out.” (Applications Without Notice – 25.31.)

The application was examined, and the Grant issued, by the District Registrar and involved no third parties or hearing. We had taken over three years to achieve it and kept it confidential to us as a family.

13. However, despite this, and within days of the Grant being issued, the information became public knowledge and leaked into all of the national and regional newspapers, music magazines, and television and radio articles. His was written and published in the broadsheet newspapers citing the Grant of Representation as evidence that he had died. In addition the financial value of his said estate, as stated on the Grant of Representation, was also leaked to the media and published accordingly.

14. After having finally reached probate, this development was upsetting and has caused enormous implications to the family that continues to this day. As part of this Inquiry I would like the Committee to consider whether current provisions are adequate in respect of this. PD 02

CONCLUSION

● I welcome the opportunity of contributing to the Justice Select Committee Inquiry into Presumption of Death and I remain committed to a Presumption of Death Act.

● I recognize the challenges that I faced in resolving the practical and legal affairs of my brother. Further, I recognize that, had my brother had wider issues to deal with, such as a marriage dissolution or having to deal with joint issues, then the procedure would proved to have been even more challenging and distressing.

● I welcome a framework to improve the current system for Presumption of Death that could address the challenges that exist to the current system in and Wales for Presumption of Death provisions. I call for a Presumption of Death Act to address this.

September 2011

PD 03 Written evidence from Hugh Eddowes

1 Summary: This contribution is my story of obtaining Probate and settling the affairs of my brother, David Eddowes, who had disappeared, particularly of how to obtain Probate and then settling the Inheritance Bill due on his estate.

2 My brother disappeared in August 2002 from his home in Seaview, Isle of Wight. Our Mother had died the previous February and her Executors had applied for Probate which was received very soon after his disappearance. My brother's half share in our Mother's estate was left mostly in Trust for him, similar to our father's estate when he had died in 1993. I and my two sons eventually became the Trustees for my brother's Trusts. A few days after the last known sighting, I was in touch with the Police and soon after with the charity Missing People. Despite their advertising in Big Issue and with snippets appearing in the Isle of Wight County Press, culminating in a substantial article in the County Press 28 August 2009, no credible reports of his existence were received.

3 As part of the evidence for presumption of death, my brother's doctor was requested to write a report about him in the quest for probate and he wrote... “In today's parlance we would describe David Eddowes as having learning disabilities but his medical records do not reveal any such formal assessment or diagnosis. In plain words he was a simple man, competent to communicate in speech and writing albeit in clumsy and simple terms”.

4 Nowhere could I find any guidance of what to do about the affairs of a missing person, not even from the charity Missing People! Having sought and received legal advice informally from various sources, I waited the accepted seven years and then instructed solicitors to apply for a Presumption of Death. The Solicitors first assumed that they would be applying in the Family Court for a judgement of Presumption of Death but they then found the route via the non- Contentious Rules for Probate and eventually the Probate Office ordered that an application for a Grant of Probate could be made, 9 April 2010. There being no evidence available to apply for a more precise date, I was advised that the date of death should be taken as 13 August 2002. The application was duly made but this had to include HMRC's receipt for the initial payment of Inheritance Tax as determined by their formal methodology. This required that interest was payable on this payment as from March 2003, being 6 months after the date of death. The Grant of Probate was duly issued on the 25 October 2010 on the basis of death being on or after the 13 August 2002. The payment to HMRC was accompanied by a letter from the Solicitor requesting that due to the unusual circumstances they give consideration to allowing the legal costs of applying for Probate to be offset against the IHT ( as costs are in normal circumstances) and charging interest from the date of grant of probate.

5 The methodology and procedures of HMRC were that very quickly they claimed interest on the late payment of all due instalments from March 2003 resulting in my being charged an extra 34% on the basic IHT demand. In order to minimise further interest charges, the necessary amount of money was raised and paid. At that stage, HMRC read the solicitor's letter sent several weeks previously and decided to allow the requests made by the solicitor. Tthey eventually repaid all the money with a little interest, but not before their systems demanded a compliance check. This resulted in them having to check the value of a property as at August 2002 when they had already accepted the value at February 2002 when our mother had died. This just added to the delays.

6 The costs of a missing person to the relatives are not trivial. There are the search costs which may or may not be significant. Because of the rule that the property of the missing person PD 03 can not be disposed of nor managed, I had to put my brother's belongings into storage which cost over £9000 and was considerably more than the they were worth. His money in the Bank could not be touched so it has not been possible to invest or get any return on it.

7 To answer your specific questions, I would say: (1a) Does the current system work effectively? No! (1b) How easy was it to find information to get started? I had to go to the Solicitors because the Internet was in no way helpful and even the Solicitors had to do a lot of research to find the processes they needed to follow to get 'Presumption of Death'. Once these things were established there were no legal issues. (2) Does the current system create difficulties for families and, if so, how can these be resolved? These difficulties were: (i) the inability to manage my brother's affairs for the seven years, and (ii) the associated costs as mentioned above. (3) What can we learn from the experiences of and Northern Ireland which have Presumption of Death Acts? My understanding is that these set out definitive procedures to follow. (4) Is there a need for legislative or procedural changes in England and Wales? If so, what form should these changes take? Follow the procedures of Scotland and Northern Ireland, except that: (i) Inheritance Tax should be based on the date of disappearance (ii) no interest is due until six months after the the date of the Application for the Grant of Probate has been approved, (iii) legal costs and maybe other costs should be allowed against Inheritance Tax.

September 2011 PD 04 Written evidence from the Ministry of Justice

Executive Summary

1. The Department is aware that there are concerns about the working of the law in England and Wales in relation to the property and affairs of persons who have disappeared and are thought to be dead. These have been expressed most recently by the All Party Parliamentary Group for Runaway and Missing Children and Adults in the report of its Inquiry into support for families of missing persons published in July 2011. The Department is giving careful consideration to this report, which includes recommendations on issues relating to presumption of death.

2. The Department welcomes the Inquiry by the Justice Committee into presumption of death. The Department has not reached any conclusion as to whether any legislative or procedural changes are necessary in relation to presumption of death in England and Wales and will not do so until it has had the opportunity to consider the outcome of the Justice Committee’s Inquiry in detail.

3. The Department acknowledges that unlike the situation in Scotland and Northern Ireland there is no single procedure for obtaining a certificate of presumed death equivalent to a death certificate in England and Wales. Instead, there are a number of procedures leading to specific outcomes.

4. The Department considers that consideration of changing the law or practice relating to presumption of death in England and Wales should take into account the experiences of the systems in operation in Scotland and Northern Ireland.

The issue

5. This memorandum has been prepared in response to the announcement by the Justice Committee on 18 July that it would be holding an Inquiry looking at the issues around the presumption of death in England and Wales. The announcement specified that “presumption of death for these purposes is the process by which people can register a death where there is no body, and resolve their affairs, including financial, marital and probate.”

6. The memorandum addresses each of the questions set out in the announcement.

Does the current system work effectively? Does it create difficulties for families, and if so, how can these be resolved? 7. Under , when a person dies proof of his or her death is set out in a death certificate. This facilitates dealing with the affairs of the deceased. A death certificate will usually only be issued where there is an identifiable corpse in existence. In the case of a person who goes missing there will be no corpse to prove death, and consequently no death certificate will be issued. The usual procedures for dealing with the affairs of a dead person are therefore not available.

8. When a person who has disappeared is thought to be dead, the consequences for those left behind vary from case to case. The disappearance of a sole breadwinner will, for example, give rise to very different issues from the disappearance of a dependant. In the context of presumption of death the legal problems are likely to relate to the missing person’s property or his or her status as a spouse or civil partner. PD 04 9. In the case of the missing person’s property, the problem is likely to be that those left behind want or need to use the property to pay for outgoings or other expenses but they cannot deal with the property to make the payments or to enter the transactions that the missing person would have done. The objective of obtaining a presumption of death in these cases will usually be to distribute the property under the missing person’s will or the intestacy rules as if the missing person had died.

10. In the case of status as a spouse or civil partner, the problem is likely to be the inability of the spouse or civil partner left behind to enter a new marriage or civil partnership while he or she is still married or partnered to the missing person. The objective in these cases will be to end the existing marriage or civil partnership.

11. Where a person goes missing and there is sufficient evidence that he or she is probably dead then there are a number of specific procedures under which he or she may be presumed dead. In most of these cases the presumption of death is limited to the purposes of the specific procedure in question. This diversity may make resolving problems more complicated but the department would recommend that persons left behind by a missing person should take legal advice to identify the best way to deal with their predicament. The details of the specific procedures are as follows.

Coroner’s Inquest 12. Section 15 of the Act 1988 provides that a coroner may report to the Secretary of State where he or she has reason to believe that a violent, unnatural or sudden death with unknown cause has occurred in or near his or her district but that the body is irrecoverable or has been destroyed. On receipt of such a report the Secretary of State, if he considers it desirable, may issue a direction to the coroner to hold an inquest. A death certificate will be issued as a result of the inquest.

13. Table 1 below sets out the number of section 15 applications received, directions made and not made since 2008. In cases where directions were made under section 15 table 2 indicates the certainty of the death.

Table 1: section 15 applications received, directions made/not made 2008-2011

2008 2009 2010 2011 Totals (Jan - Sept)

Section 15 applications received 18 14 14 20 66 from coroners

Direction made 10 13 13 11 47

Direction not made 3 1 1 2 7

4 0 0 3 7 Coroner able to proceed without a direction

Report permanently withdrawn 1 0 0 0 1

Under consideration 0 0 0 4 4

PD 04 Table 2: statistics on certainty of death for directions made 2008-2011

Directions made - estimated 2008 2009 2010 2011 (1 Jan- 14 Totals degree of presumption (10) (13) (13) Sep) (11)

Death is a known fact 4 8 9 5 26

Death is almost certain 2 2 2 2 8

Death is presumed on the balance 4 3 2 4 13 of probabilities

14. The Ministry of Justice is currently in liaison with the Missing Persons Bureau (MPB) on the drafting of guidance which is to be published on the MPB website. This guidance will contain details about circumstances where coroners can consider applying for a section 15 direction to open an inquest. This is significant as it may be possible for the families of missing persons who are believed to have died violent, unnatural or sudden to obtain a death certificate following the opening of an inquest under section 15. This would enable them to undertake some administrative tasks surrounding the deceased’s estate. In addition, putting more information in the public domain could aid some families, in certain circumstances where persons are missing, presumed dead and the body is believed to be irrecoverable, to become aware of the role of coroners and .

Decree of Presumption of Death and Dissolution of Marriage and Presumption of Death Order 15. Under section 19 of the Matrimonial Causes Act 1973 and section 37 of the Civil Partnership Act 2004 where a married person or civil partner goes missing and the surviving spouse or civil partner wishes to dissolve the marriage or civil partnership, he or she can apply for a ‘decree of presumed death and dissolution of marriage’ in the case of a marriage or in the case of a civil partnership a ‘presumption of death order’. A decree or presumption of death can be obtained at any time after the spouse or civil partner goes missing and will be granted if the court is satisfied that there are reasonable grounds that the missing person is probably dead. The decree or presumption of death order can only be used to dissolve the marriage or civil partnership. They cannot be used to obtain a death certificate and do not allow a person to obtain financial or property orders against the former spouse of civil partner. Such ancillary relief will only be available if the missing person returns.

16. The decree or presumption of death order will allow the spouse or civil partner left behind to marry or enter a civil partnership.

17. The Ministry of Justice does not hold information centrally on the number of High Court applications or orders made for decrees of presumed deaths and consequent dissolution of marriage or civil partnerships made under section 19 of the Matrimonial Causes Act 1973 or section 37 of the Civil Partnership Act 2004.

18. Information for applicants on these procedures can be downloaded from the Family Procedure Rules section of the Justice website. Form D8D "Petition for a presumption of death decree/order and the dissolution of a marriage/civil partnership " contains information to help people complete the form, whilst Form D8D Notes PD 04 contains further guidance about the application and the evidence required and the other applications which can be made (for example in respect of financial arrangements).

Leave to Swear Death 19. Where a person goes missing and a member of the missing person’s family wishes to obtain a grant of probate in order to administer the estate of the missing person then he or she can apply for a ‘leave to swear death order’. A leave to swear death order is made pursuant to Rule 53 of the Non-Contentious Probate Rules 1987. It is an order made solely for the purpose of allowing probate to be granted to the estate of a missing person. It is not, and will not be accepted as, conclusive proof of death. An application is made ex parte on affidavit, usually by the applicant for the grant of probate or letters of administration, to a District of the Principal Registry of the Family Division or a District Probate Registrar. Appeals from the Probate registry are made to the Chancery Division of the High Court.

20. Probate is the process by which the estate of a deceased person is administered: that is gathered in, the debts paid and the net estate distributed in accordance with the will or the intestacy rules. The administration is conducted by executors named in the will under a grant of probate or administrators appointed by the court under letters of administration in the case of intestacy.

21. A leave to swear death order enables an application for probate or letters of administration to be made. The estate of the missing person can then be administered.

22. The numbers of leave to swear death orders made between April and March in each of the last three years were 17 in 2008/09, 16 in 2009/10, and 14 in 2010/11.

Certificate of Presumed Death 23. Where a person has gone missing in identifiable circumstances it may be possible to obtain a ‘certificate of presumed death’. These can be made under a variety of Acts and regulations.

24. Circumstances where such legislation can apply include where a member of the armed forces has gone missing in action; if a merchant seaman goes down with his ship; where someone cannot be found after a tragedy on an offshore installation; or where someone working in a particular Government department cannot be found after an incident while he or she was on duty, for example, an embassy worker who goes missing in a bomb blast.

25. These certificates are not usually issued by the courts but by the authority responsible for the missing person. They are issued once the authority is satisfied that the person probably died as a result of the incident. They can be used, at the discretion of the court, for probate purposes, but they cannot be used to obtain death certificates.

Social Security benefits 26. Section 8 of the Social Security Act 1998 governs the Secretary of State's power to make decisions in relation to a person's entitlement to a range of benefits, including decisions that a person's spouse may be presumed to have died. Section 3 of the Social Security Administration Act 1992 enables claims for bereavement benefit to be made outside the usual twelve month period where it is difficult to establish death.

PD 04 Consular Death Registration 27. The FCO has the power to issue consular death registration documents once the relevant local authorities issue official notification of the death - presumed or otherwise. This type of document does not constitute a UK death certificate and does not replace a locally issued death certificate. Consular death registration is not a legal requirement but it means: an entry will be made in the death register by the British Consulate in the country concerned; an applicant will be able to obtain a British style certificate; and a record of the death will be held by the General Register Office in the UK.

28. Records held of the number of deaths registered by FCO do not distinguish between those issued on presumption of death and those issued on known death.

Common law presumption of death 29. The question whether a person who has disappeared has died may arise in many different circumstances. The effect of the terms of a gift in a will or under a trust may for example turn on whether a missing person is dead or alive. In these cases the court may have to decide whether a person is to be deemed alive or dead. Where this situation arises, there is a rule of evidence that if a missing person has not, despite thorough enquiries, been seen or heard of for seven years, he or she is presumed to be dead. This presumption can be used generally, but it is only a presumption and not a rule and cannot be used to obtain a death certificate. The court can accept evidence of absence over a shorter period if it wishes. In other words, an interested party does not have to wait for seven years to make an application for an order relating to the presumed death.

30. The Ministry of Justice does not hold centrally information on the number of applications made to the High Court for orders relating to presumed deaths or for the number of orders made.

What can we learn from the experiences of Scotland and Northern Ireland which have Presumption of Death Acts?

31. In Scotland and Northern Ireland there are single statutory procedures to obtain a certificate of presumed death.

32. In Scotland, the law governing the procedure for obtaining a certificate of presumed death is contained in the Presumption of Death (Scotland) Act 1977 (“the 1977 Act”). The 1977 Act implemented recommendations of the Scottish Law Commission in its Report on Presumption of Death published in 1974.1

33. The 1977 Act provides that where any person who is missing is thought to have died or has not been known to be alive for a period of at least seven years, a person having an interest may raise an action of declarator of death of that person in the Court of Session or the Sheriff Court subject to certain conditions concerning domicile or residence. The certificate can be used for the same purposes as a death certificate.

34. About 40 declarations of presumed death were made under the Act in Scotland between 2000 and 2010.

35. In Northern Ireland, the law governing the procedure for obtaining a certificate of presumed death is governed by the Presumption of Death Act (Northern Ireland)

1 http://www.scotlawcom.gov.uk/download_file/view/429/ PD 04 2009. It was originally envisaged that the Act would be for the benefit of the families of “the Disappeared” (those people who are thought to have been killed during the Troubles, and whose remains have not yet been located). As the provisions were developed it became clear the Act should also cater for families of people who have gone missing and are thought to have died in other circumstances. The provisions of the Act are broadly analogous to those of the 1977 Act.

36. No applications have yet been made under the 2009 Act.

37. The legal systems in each of the three jurisdictions within the United Kingdom are different from one another. The Department considers that in deciding whether to take forward any proposals to change the law or practice in relation to presumption of death in England and Wales it would be useful to consider the experiences of the other two jurisdictions.

Is there a need for legislative or procedural change in England and Wales? If so, what form should these changes take?

38. The Department has not reached a conclusion as to whether legislative change is necessary in England and Wales and looks forward to the findings of the Committee on this point.

September 2011 PD 05 Written evidence from Claire Chandler

Executive summary 1 Since my partner disappeared I have received little guidance on dealing with his affairs or information about accessing presumption of death provisions. Some of the information I have obtained has been contradictory. I believe that there is sufficient evidence that my partner has died, but I have thus far been discouraged from taking matters further before seven years have elapsed. I have been frustrated and upset by the attitude of the companies and authorities with which I’ve dealt and by their lack of clear procedure. In addition, dealing with my partner’s possessions has been a financial burden on top of the emotional distress. My partner deserves to have his estate settled as he wished, and I would like to see the law changed to make it much easier to deal with the affairs of a missing person where there are reasonable grounds to suppose that the person has died.

Does the current system work effectively? 2 No, I believe that the current system creates emotional and financial strain for families at a time when they are already experiencing great distress.

Does the current system create difficulties for families and, if so, how can these be resolved? 3 My experience is that the current system creates difficulties for families. I have not found it easy to obtain information about what should happen, and what to do, when a person goes missing. The information I have received from different sources has sometimes been contradictory. My partner disappeared from a cross-Channel ferry in February 2011. After the ferry company informed me that he had not disembarked with the other passengers and that all his possessions had been found in his cabin, my initial dealings were with the Missing Persons Unit of the Metropolitan Police. I cannot remember how long it was before I heard about the seven-year period before presumption of death; I recall being told by the police only that, unless my partner’s body was found (and I was told that this was unlikely), it would be a long time before there could be any resolution of my partner’s affairs. 4 Three or four weeks after my partner’s disappearance I met with his accountant. The accountant invited to the meeting a solicitor experienced in probate who works in the same building. The solicitor was the first person to mention to me the possibility of using presumption of death provisions before seven years have elapsed. He had made some calls and was at that time unable to find anybody at the Bar who had experience of seeking an order for presumption of death. He was, however, reasonably confident that, subject to getting a barrister’s advice, it would be possible to seek an order, if the police were able to issue a report that was sufficiently positive about my partner’s fate – that is, there was reasonable evidence that he had died. 5 When I discussed this matter with the police, they told me that, because I did not live with my partner and have no legal status, it would fall to my partner’s family to bring proceedings and provide evidence of the likelihood of death. They advised that presumption of death is granted only in very particular circumstances, such as a plane crash or another disaster, when it is established that there were no survivors. I was further informed that the matter would be PD 05 complicated by the fact that my partner went missing in the Channel, crossing both British and French waters. 6 A few months later, I asked the charity Missing People if it could recommend a lawyer experienced in dealing with the affairs of missing people. The lawyer with whom I spoke told me that she believed any interested party could seek an order for presumption of death, not just the missing person’s family, but she said that it would be very unusual to attempt to do so before seven years. In the meantime, my partner’s next of kin, a brother who lives abroad, informed me that he does not wish to be involved in any decisions regarding my partner’s affairs. Therefore, if I do not myself at some point seek a presumption of death order, it will never happen, and I feel strongly that it would be a disservice to my partner if there were never any resolution of his affairs and his estate were not settled as he instructed in his will. 7 Missing People has now put me in touch with the charity Missing Abroad, to help me look into the possibility of obtaining a consular death certificate for my partner. Neither the police nor any other authority or lawyer has informed me about this possibility. 8 If the possibility of a consular death certificate comes to nothing, I appear to be faced with two options: wait for seven years, and effectively feel as if my life is on hold, constantly worrying about my partner’s affairs being in limbo; or spend what is likely to be a considerable amount of money on legal representation, with no guarantee of getting a presumption of death order. I have only recently discovered that, even after seven years, one still has to apply to the High Court to obtain such an order; the process is not automatic. 9 In addition to trying to obtain information about presumption of death, I’ve found it very stressful to deal with financial institutions and other organizations regarding my partner’s affairs. The police suggested to me and my partner’s brother that we inform the relevant authorities about my partner’s disappearance, giving them details of the investigation. Only a couple of authorities responded to the letter; all continued to send correspondence to my partner’s flat. The utility companies began to send legal letters to my partner because bills were unpaid, and when I rang them to explain the situation they told me either to ignore the letters or that there was simply nothing they could do to stop the legal process. One utility company even told me that its debt collectors would manage to find my partner. I felt as if my partner were being criminalized, but he’s not hiding from these companies; he’s died. None of the authorities appears to have a policy regarding missing people, and my partner’s affairs are left in a mess. 10 My partner had policies with two different companies. One company has been sympathetic and responsive (primarily because my partner’s accountant is a trustee of the policy, and so has been able to get replies to his queries), although it has indicated that it would not pay out on the policy before seven years. The other company has been much more difficult and slow to respond, and has said it cannot answer any questions about the policy until probate is obtained. No one has the authority to look into my partner’s financial affairs at this time, but these insurance policies appear to be the main assets of his estate, and I am anxious about what will happen because I understand that the cost of an application for presumption of death is usually covered by the missing person’s estate. PD 05 11 In his will, my partner asked me to distribute his possessions among friends and charities. The legal advice I have been given is that I cannot do this until such time that his affairs can be administered. My partner rented his flat from a housing association, and the association sought an order to repossess the property once the rent had not been paid for a certain period. Fortunately, it was sympathetic in allowing me access, but I am now in a position of having to store as many of my partner’s things as I can, including in paid storage, for up to seven years. The paid storage is a significant financial burden, but I could not otherwise bear to see my partner’s possessions end up being sold or thrown away rather than distributed as instructed in his will. 12 The loss of one’s partner is one of the worst things in life; to lose your partner without knowing for sure what happened to them, not to have their body, not to be able to organize a , is unbearable. There is no sense of closure. The lack of clear guidance since my partner’s disappearance has been incredibly frustrating; I feel utterly abandoned, and my uncertainty about the future causes me a great deal of stress. At this time I have no idea when my partner’s estate may be settled. I wish to see things resolved primarily for my partner’s sake, but also to allow me at least to attempt to get on with my life without this constant worry about his affairs. I could understand objections to obtaining a presumption of death order if my partner had walked out of his flat and disappeared into the crowds, but he disappeared in the middle of the Channel with no possessions. There seems to me no possibility that he is still alive, and to have to wait seven years for this to be recognized in the eyes of the law only adds to my considerable distress. In such circumstances – where there is evidence that the missing person is likely to have died – it should be easier for presumption of death to be granted. 13 I would like to see better guidance for families dealing with financial authorities, utility companies and other organizations when a person goes missing, and most importantly a single clear procedure for obtaining a presumption of death order. If a solicitor had not mentioned to me the possibility of obtaining such an order, I don’t know how long it would have taken me to find out the relevant information by myself – and even now I’m not clear if this is a realistic option at this stage. No one can give me a straight answer. Families face so much anguish when a loved one goes missing, and it’s distressing for them to learn that the law at present is virtually non-existent as far as missing persons are concerned.

September 2011

PD 06

Written evidence submitted by Stephanie Hynard

1. Current Situation

My husband left home on 1st March 2011, leaving behind a note and information for the person finding his body. This was the third attempt to end his life. His car was found, but to date his body has not been located.

2. Does the Current System Work Effectively?

I have been involved with 2 Police authorities. One has been very supportive and able to talk about a potential death following a possible suicide. The other was unwilling to do this and unable to provide me with any information about the correct procedure to follow in dealing with legal issues or whom to turn to for advice. I believe a document explaining the procedure would have been useful.

After a month I carried out my own research on the internet and found several articles that indicated that the procedure for ‘presumption of death’ was complicated and would involve the District Probate Registry or the Secretary of State. I was unable to find information on how to deal with the legal issues about payment of debts that were in my husband’s name. I have replied to financial letters that were addressed to him explaining the situation, but usually do not receive a response or an acknowledgement.

I approached one of the Police forces I was working with for guidance, but they were of the opinion that I could do nothing until 7 years had passed, and were negative about an application to the Coroner’s Court. My impression was that the police were concerned that I might be involved with an ‘insurance scam’. Initially I requested meetings with the police, but as the intensity of the search for him has decreased, I have been unable to find out how the investigation is being managed or what is planned for future investigation. As I am now suffering from depression, I find I do not have the energy to pursue this.

I felt that I needed legal advice and asked my solicitor to investigate how I could manage my husband’s affairs that had a direct impact on my life and well‐being. She made it clear that it would be a long, complicated and potentially expensive procedure, with no guarantee of a positive outcome. She made a telephone call to the Coroner’s Court and was provided with a list of evidence that would be needed. However, it wasn’t clear to me on what basis I was making an application i.e. a) Presumption of death or b) Power to manage my husband’s financial affairs

The Probate Manager of HM Courts responded saying this information was useful, but until the Police report was released the case could not proceed. My solicitor has written to one of the Police forces on two occasions and made several phone calls, but they were not cooperative in providing any documentation dealing with their enquiry or the level of search that had been undertaken. They indicated that they would only produce evidence if they were directly required to do so by the Coroners’ Court.

3. Does the Current System Create Difficulties for Families?

As technically I am not bereaved, I have been unable to access the services of SOBS and CRUSE. I have paid for my own counselling in order to deal with the situation. I feel lonely and isolated and as I am not a ‘widow’ no‐one knows how to deal with difficult issues. There seems to be a complete lack of guidance on what to do.

Banks and Insurance companies have quoted the Data Protection Act as their basis for not assisting me. It was only when my husband’s account went into debt that the bank decided to freeze his account. Pet Insurances were cancelled when I tried to change the insurance to my name.

If I told an organisation about my husband’s missing status, they were unable to offer advice. Problems have included payment of mortgage, car insurance, legal ownership the car, applying for tax, what to put on the electoral register, how to inform the tax office, stopping payment on direct debits.

4. Legislative or Procedural Changes

The officer allocated to my case is of the opinion that until my husband’s body is found, the police service will not provide information for the Probate Service. I was informed that this might mean that I will have to wait for the full 7 years. Having officially retired I have now had to returned to part time work to meet our financial commitments.

A change in the legislation would assist in these rare, but distressing cases where mental health has been an issue for many years and suicide was the intention of the person who is now missing.

September 2011 PD 07

Written evidence from Missing People

‘The loss of one’s partner is one of the worst things in life; to lose your partner without knowing for sure what happened to them, not to have their body, not to be able to organize a funeral, is unbearable. There is no sense of closure. The lack of clear guidance since my partner’s disappearance has been incredibly frustrating; I feel utterly abandoned, and my uncertainty about the future causes me a great deal of stress. At this time I have no idea when my partner’s estate may be settled. I wish to see things resolved primarily for my partner’s sake, but also to allow me at least to attempt to get on with my life without this constant worry about his affairs.’ Partner of a missing man1

1. Executive summary

1.1. Missing People is a UK charity providing support to missing people of all ages and the families they leave behind. Last year we took more than 114,000 calls to our helplines, and worked with approximately 1,000 families at any one time.

1.2. The charity has been campaigning for a Presumption of Death Act for England and Wales since 2008. This stems our research report ‘Living in Limbo: the experiences of, and impacts on, families of missing people,’2 which demonstrates the deep legal and financial problems families can face following a disappearance.3

1.3. ‘Living in Limbo,’ along with our wider policy and research work with families, demonstrates how families in England and Wales can find the presumption of death system confusing, costly and cumbersome. It requires some to go to court several times to deal with their missing relative’s affairs, which can exacerbate an already difficult time. Our work also indicates low awareness of the system across all sectors, including those that support families through the measures and those delivering a service within them.

1.4. These issues were explored in the APPG for Runaway and Missing Children and Adults’ inquiry into support for families of missing people. Missing People provides secretariat to this group.

1.5. Missing People understands the Scottish and Northern Irish Presumption of Death Acts have functioned successfully since introduced in 1977 and 2009 respectively – for both families and institutions. This noteworthy, as the absence of safeguards in the disparate English and Welsh system can lead to failed applications and institutions being unwilling to accept the documentation it yields.

1 Excerpt from a Select Committee submission shared with Missing People. 2 Holmes, L. Living in Limbo: the experiences of, and impacts on, families of missing people. Missing People, 2008. 3 Ibid, pp. 31-4. 1.6. Missing People believes all families should have access to a straightforward presumption of death system – regardless of where they live in the UK. A Presumption of Death Act for England and Wales would additionally clarify the law for institutions families approach for support, as well as introduce safeguards to assist the public and financial sectors.

2. Does the current system work effectively?

2.1 Missing People’s policy and research work and direct contact with families clearly demonstrates that the present presumption of death system does not work effectively.

2.2. Families report the current systems to be confusing, costly and complex, and that the institutions they approach for help can struggle to provide them with accurate advice. The charity understands public sector institutions can also be cautious in working with families because of the lack of safeguards in the system, and some financial institutions are unsure what documentation they should request to administer a missing person’s assets.

2.3. Missing People believes presumption of death provisions in England and Wales are fragmented and not fit for purpose. It is imperative that a clear, effective and accessible system is introduced.

3. Does the current system create difficulties for families, and if so, how can these be resolved?

3.1. Whilst only a relatively small proportion of families accessing our services will want – or indeed need – to declare their relative as presumed dead, those that do report a number of problems associated with the current English and Welsh system.

3.2. Research demonstrates the pain associated with having a loved one go missing is unlike other forms of loss, such as death where there is a body.4 Termed ‘ambiguous loss’, this does not alleviate with time, as families are unable to grieve without answers of what has become of their relative. Therefore whilst many families wait some years before pursuing presumption of death, the pain of their situation will not necessarily lessen, and thus it can be a particularly difficult time.

3.3. The majority of families pursue presumption of death out of necessity rather than want, with many reporting it as borne from the need to administer their relative’s estate. As each missing person case is different this can be for any number of reasons, yet those most cited are to: resolve joint ownership / liability issues; access monies to overcome debt caused by the loss of the missing person’s income, or; halt debts the missing person may be accruing whilst away. Others may access the system to remarry.

3.4. Acting from necessity rather than need, families describe conflicting emotions. Many report feeling guilty, fearing they may be perceived as ‘giving up’ on their relative, whilst also relief from the thought that financial complications may finally be resolved. With such emotionally fraught circumstances, it is vital families can access a straightforward system

4 ‘Ambiguous loss’ was identified by psychologist Dr. Pauline Boss, as discussed in Living in Limbo, p.17, 25-26. that sensitively meets their needs. Unfortunately however, this is often not the case, as families can encounter a range of issues when attempting to access the present system:

3.5. Lack of awareness of present measures

3.5.1. Awareness of the presumption of death system, what it comprises of, and what it can yield, is low amongst families and professionals. At the outset many assume there is a single court process through which a person can be declared ‘presumed dead’ for all purposes and their affairs administered. Many also believe Certificates of Presumed Death are widely issued and can be used in place of a Death Certificate when required. Neither assumption is correct.

3.5.2. Families often only discover the complexities of the system – and their proactive role – through their own research. With cost, time, and emotional implications, this can be very daunting, and not all families will have the financial or intellectual resources to take such a proactive approach.

3.6. Onerous system

3.6.1. Depending on circumstances, families may need to go through several court processes to resolve a missing relative’s affairs. For example, if a missing person’s spouse wants to administer their loved one’s estate and dissolve their marriage, they need to seek Leave to Swear Death, Probate, and a Decree of Presumption of Death and Marriage Dissolution Order. This demonstrates the fragmented nature of the system; indeed, the Ministry Justice described it as ‘onerous’ in its submission to the APPG inquiry into support for families of missing people.5

3.6.2. The system is cumbersome, with cost implications stemming from multiple court proceedings, which can exacerbate an already emotionally difficult time. The disjointed system also leaves open the possibility that while one court may rule a missing person as presumed dead, another may not, resulting in a very contradictory legal predicament.

3.6.3. With little public information as to which processes families should follow, Missing People understands families can be advised to pursue a range of different legal paths to achieve broadly similar ends. This tends to be influenced by what their solicitor believes is the most appropriate route, and what paperwork is required by financial institutions to administer a missing person’s assets (e.g. life insurance). Yet with low awareness of the system, errors can be made.

3.6.4. Families aware of the more straightforward systems in Northern Ireland and Scotland can find their situation particularly frustrating, as it presents a ‘postcode’ element to it.

3.7. Absence of knowledgeable support

3.7.1. Missing People understands legal professionals can also find the system challenging, with our policy and research team receiving information requests from firms seeking advice on how to work with families.

3.7.2. Family accounts cohere with this as they can struggle to find knowledgeable legal assistance. Some describe approaching several solicitors before feeling confident they have

5 APPG inquiry transcript, session two, p. 13: www.missingpeople.org.uk/appg. found one capable of unravelling the confusion of the present system. Others describe being turned away by firms, and some have even been told the costs associated with pursuing an order would not make it worth the family’s time or money – even when an estate is worth tens of thousands of pounds.

3.7.3. Other institutions, such as the police, can also struggle with presumption of death. Sean Sutton, Head of the NPIA Missing Persons Bureau told the APPG inquiry his team has “identified a lack of knowledge in police officers in this area.”6 This can have serious repercussions for families. For example, some forces may not be cooperative when asked to evidence the search for applications.

3.7.4. The charity has been looking at presumption of death from a policy and practice perspective for several years whilst fielding calls from families and professionals alike, and yet we still lack the legal clarity we would like and which would enable us to more effectively support our service users. For example, we would like better knowledge of what circumstances would enable families to instigate proceedings ahead of the seven year common law rule, however this information (to our knowledge) is not available. It is likely other voluntary advisory organisations are in a similar position.

3.7.5 Overall, this lack of knowledgeable support can lead to families being given misguided advice, which can impact on crucial matters such as when they pursue presumption of death and which paths they follow. This can lead to families waiting unnecessarily for seven years before making an application, 7 perhaps accruing debt in the meantime, or failed applications.

3.8. Legal documentation

3.8.1. The fragmented system can result in families having a range of different legal documents depending on the route they pursue. This lack of standardisation can be problematic, as different institutions may require different documents from a family before they will administer a missing person’s assets.

3.8.2. Low awareness of the system also means institutions may request documentation families cannot provide. For example, whilst Certificates of Presumed Death are not available from the courts,8 families report some institutions still requesting these before administering a missing person’s assets. As many families are only able to obtain Probate, this can effectively leave them at a frustrating and upsetting legal dead-end.

3.9. Time, expense and failed applications

3.9.1. Some families wait unnecessarily for years before instigating proceedings as they have no information to clarify the exceptions to the so-called “seven year rule”. This wait may be financially damaging for families if they are liable in maintaining their relative’s payments in the meantime, e.g. a joint mortgage.

3.9.2. Once families embark on presumption of death, finding out information and processing applications can be very slow; Missing People is aware of families who have

6 Ibid, p. 39. 7 Missing People understands that when there is evidence to suggest a person faced immediate peril at the point of going missing, their family can apply for presumption of death before seven years have passed. 8 APPG inquiry transcript, session two, p. 12-3 been tackling the system for more than seven years. This stems from low awareness of provisions and the lack of safeguards built into the system leading approving agencies to move very tentatively.

3.9.3. This latter point can also lead to applications failing, or Probate Registrars requesting families to seek insurance before they will consider approving an application. This adds another layer of complexity for families, and costs them additionally in time, money and their emotional wellbeing.

3.10. Concerns not addressed by the current system

3.10. The overall lack of clarity around the system can cause deep concern for families, and many have problems that fall through the cracks of the current patchwork of provisions. For example, families have asked Missing People about whether the police continue to look for a missing person if they are legally presumed dead, and whether they will remain as next of kin and kept abreast of any developments stemming from the search if their marriage is dissolved. These questions are not addressed in the present system and must be for families and professionals alike.

3.11. Whilst families continue to face these issues, their financial and emotional wellbeing can be severely compromised, with Missing People aware that some have faced the risk of having their homes repossessed as they wait for a resolution. The current system does not provide a clear and coherent legal pathway to resolution. In addition the current system is not understood by professionals within the legal, financial and law enforcement sectors and varieties of interpretation often prejudice the best interests of the families and the estates of missing persons. The charity proposes a Presumption of Death Act for England and Wales is introduced to overcome these concerns.

4. What can we learn from the experiences of Scotland and Northern Ireland which have presumption of death Acts?

4.1. Missing People understands the Scottish and Northern Irish legislation is working efficiently; indeed, the charity has not received a request for guidance from families or professionals around how to use it.

4.2. The charity has also spent some time assessing their legislation with its pro bono lawyers, Clifford Chance LLP, by way of ascertaining whether it is suitable for families. We agreed it is, as it brings all existing provisions together into one streamlined process. It also contains inbuilt safeguards (such as an indemnity insurance requirement for applicants), and provisions which create a central register of presumed deaths and a Certificate of Presumed Death to act as a Death Certificate. These elements overcome many issues created by the current system.

4.3. The Acts in Scotland and Northern Ireland also overcome the existing loophole that one court may rule the person as presumed dead whilst another may not.

4.4. As a result of this assessment, Missing People worked with Clifford Chance and Tim Boswell MP (now Lord) to table a Presumption of Death Act for England and Wales in 2009. Whilst this fell, the charity has continued to call for the legislation through other avenues since this date with the support of families using our services.9

4.5. Missing People believes that both families and professionals would benefit if the presumption of death system in England and Wales be reformed along the lines of the Scottish and Northern Ireland Acts.

5. Is there a need for legislative or procedural change in England and Wales? If so, what form should these changes take?

5.1. This submission outlines how the current system does not provide for an equitable or transparent legal process. The legislative provision of a Presumption of Death Act for England and Wales in line with other nations within the United Kingdom and developed nations all over the world is the just next step. The outline of this act has been considered in detail by the Ministry of Justice and a consultation paper has been drafted to take it through to a legislative process.10

5.2. The scale of need – families

5.2.1. Recent Parliamentary questions tabled by Lord Boswell demonstrate there is no complete, centralised data held on the number of presumption of death applications made annually under existing legal provisions.11 Whilst this means there are no firm numbers of how many people are affected by this issue each year, Missing People has estimated numbers based on Scottish data.12

5.2.2. The charity understands that, on average, approximately five deaths are registered in Scotland each year under the provisions of the Presumption of Death (Scotland) Act 1977.13 In relation to population statistics, it can be estimated that similar measures in England and Wales would results in approximately 50 registered deaths each year. It is possible that other cases might reach the courts but not be granted.

5.2.3. Yet as seen in Scotland, it is likely that this number would be higher in the immediate years following legal reform, with a peak of 14 deaths being registered in Scotland in one year. Missing People anticipates a similar trend in England and Wales, as families and professionals struggling with the present system would have clarity on how to proceed. Those with previously failed applications are also likely to re-apply. Proportionate to the uplift in Scottish deaths registered, Missing People estimates registered deaths in England and Wales could reach approximately 150 in the years immediately following legal reform.

5.3. Scale of need – professionals

5.3.1. Further to families, it is clear that clarifying the law would also benefit professionals, including:

9 Please see http://bit.ly/pTSGR7 for a full account of our campaigning on presumption of death. 10 Ibid. 11 Please see questions HL11855, HL11707 and HL11643 for examples of these. 12 As families are able to apply at any time depending on the circumstances of the disappearance, simply looking at cases open for seven years or longer would provide an underestimation. 13 Statistics obtained through direct contact with the National Records of Scotland. • Institutions approached for advice, such as solicitors, the police and voluntary sector organisations, as evidenced in the APPG inquiry • Organisations with a role within the system, including Probate registry staff,14 courts, and agencies required to evidence the search. • Financial sector organisations holding missing people’s assets.

5.4. Missing People’s view is that the simplest way of achieving a more straightforward system – whilst also achieving legal parity across the UK – would be through a Presumption of Death Act for England and Wales. We urge the Committee to recommend that the Government explore this option.

September 2011

14 Former District Probate Registrar Keith Biggs stated to Missing People that he received ‘many applications where there was no body and no proof of actual death. It is not a common event but when it does occur is always difficult for family and for the court.’ (via private correspondence). PD 08

Written evidence from Clifford Chance LLP

About us 1. This submission is made by Clifford Chance LLP in response to a call for evidence on 21 July 2011 by the Justice Committee.

2. Clifford Chance is one of the largest global law firms with 33 offices in 23 countries, and over 3,500 legal advisors, the largest number of whom are based in London. We are regulated by the Solicitors Regulatory Authority of England and Wales.

3. Our interest in the presumption of death stems from our relationship with the charity Missing People, for whom we have worked in a pro bono capacity for over 5 years. On behalf of, and in conjunction with, Missing People we drafted the Private Member's Bill1 introduced by Tim Boswell MP (now Lord Boswell) in January 2009. Following meetings with, and at the request of, officials at the Ministry of Justice, we also drafted a consultation paper on the issue, with a view to its publication as a government consultation paper (with a draft Bill attached). Unfortunately, due, we believe, to competing priorities, this paper was never finalised, and was not issued. We would be happy to send the Committee a copy of the draft consultation paper, should the Committee feel this would be helpful.

Does the current system work effectively?

4. The current law in England and Wales does not, in our view, provide a clear process by which a missing person can be presumed dead, with universally applicable effect at a point when factors such as the passage of time and, more pertinently, the circumstances of the disappearance would make such a presumption reasonable. The existing law is piecemeal and specific to particular situations, and is contained in a mixture of different statutory provisions and the common law.

5. At common law there is a presumption that a person lives a natural life span unless there is a reason to suspect he or she is dead. The expectation therefore is that a missing person will live into old age if he or she was in good health prior to disappearance and in the absence of evidence to the contrary. This expectation has been refined by case law, notably in Chard v Chard2, which has allowed the court to presume death under certain conditions. These conditions are: that there are persons who would be likely to have heard from the missing individual

1 The Presumption of Death Bill 2009. 2 [1955] 3 WLR 954

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during a period of seven years or more; that those persons have not received information of the missing person during that period; and that enquiries have been made as to the person's whereabouts. A combination of these three factors will enable a court to make a presumption that, for the purposes of the specific proceedings before it, the individual is dead. However this presumption does not then have wider application to all the missing person's property or affairs - only to those which touch on the case being heard in court at the time. This approach therefore risks considerable duplication of effort, and consequent additional cost, both for the courts, and for the missing person's family and other connections.

6. Alongside the common law, there are statutory provisions addressing presumed deaths in specific scenarios, such as the Matrimonial Causes Act 1973 and the Civil Partnership Act 2004; the Offences Against the Person Act 1861; the Non- Contentious Probate Rules (made by Statutory Instrument in 1987 under the authority of the Supreme Court Act 1981) and the Social Security Act 1998.

7. The High Court may make a presumption of death as a basis for an order for dissolution of a marriage or partnership3. Such a presumption can be made if the missing spouse or civil partner has been absent for a period of seven years or more and the other spouse/civil partner has no reason to believe that he/she was alive during that seven year period. These provisions are, however, very rarely used as a spouse or civil partner who wishes to remarry has the alternative option of petitioning for divorce or dissolution on grounds of desertion after only five years.

8. The Non-Contentious Probate Rules allow a district judge or registrar to grant an applicant leave to swear to the death of a person "to the best of his information or belief" in cases where death is presumed rather than proven4. Such leave can be taken at any point after the person's disappearance, i.e. there is no need for the elapse of seven years. It is important to note, however, that in granting leave the High Court is not making a presumption of death but merely giving the applicant the opportunity to swear to the death as a pre-condition for obtaining a grant of probate in order to administer the missing person's affairs.

9. Furthermore while a grant of probate is obviously essential to enable a missing person's estate to be administered it will often not be enough to undertake that administration effectively. Banks and other holders of investments frequently require to see both a grant of probate and a death certificate before they will release funds to executors or administrators.

3 Matrimonial Causes Act 1973 s.19 and Civil Partnership Act 2004 s.37 4 Rule 53 Non-Contentious Probate Rules (SI 1987/2024)

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Does the current system create difficulties for families and, if so, how can these be resolved?

10. As a large commercial law firm, our knowledge of the difficulties caused for families by the current system is purely second-hand, gained through our association with Missing People. However, it was precisely the difficulties faced by families of missing persons that created the impetus for the drafting of the Bill and the consultation paper (see paragraph 3 above).

11. Moreover, as a matter of principle, we consider it inevitable that the current system will cause difficulties for the families of missing persons. The complexity and overlapping nature of the differing rules and procedures for different situations creates considerable scope for both confusion and duplication of resources and effort. Lawyers advising the families of missing persons are likely to have to spend a disproportionate amount of time researching the common law and law provisions, and families may need to take a number of different proceedings to court in order to resolve all outstanding issues.

12. In our opinion, establishing a procedure to enable families to obtain a certificate of presumed death, which would have equivalent effect to a normal death certificate, would greatly simplify and clarify the current confused system, and bring benefits for families, at the same time as saving court time.

Approaches to reform other than primary legislation

13. It could be argued that the difficulties could be resolved through guidance and revised codes of practice rather than legislation. However there are two problems with that administrative approach. Firstly, private institutions could be a risk of civil action if they were merely following a code in the absence of a statutory framework, and may not be willing to release assets on that basis. Secondly, given the very wide scope of the institutions that might be involved, including for example public bodies such as the Land Registry, the process of creating and implementing such codes would be onerous compared with the effects of legislation.

14. Another option might be to extend the jurisdiction of the Coroner to cover missing persons in some circumstances. Coroners currently have a duty to investigate within their area when there is a deceased person reported5 and a duty to make a report to the Chief coroner when that duty does not arise due to

5 Coroners and Justice Act 2009 s1

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the "destruction, loss or absence of a body"6. This, however, assumes that there is at least evidence that a death has taken place, which in the case of a missing person there may not be. Moreover their established expertise is in ascertaining how a person died rather than to take responsibility for determining that a death has taken place in the absence of any definitive evidence.

15. Another alternative could be to amend the existing legislation7 concerning the registration of deaths in order to allow an investigation by a public body such as the police to conclude and certify a missing person as dead, provided the person has been missing at least seven years. While an attractive option this once again raises the possibility of involving existing public officials in a process which is outside their traditional remit. Furthermore it is difficult to see how the elements of intervention, variation and insurance, all of which are necessary safeguards, could be easily incorporated into the existing system without primary legislation.

What can we learn from the experiences of Scotland and Northern Ireland which have Presumption of Death Acts? 16. When drafting the Presumption of Death Bill introduced in 2009, we looked closely at both the Scottish and Northern Irish precedents, noting that officials drafting the Northern Irish Act (only passed in 2009) had in turn given close consideration to the Scottish legislation.

17. It would appear that the driver behind the Presumption of Death (Scotland) Act 1977 was a report by the Scottish Law Commission report8 which criticised the multiplicity of different legal frameworks dealing with the question of missing persons and recommended a single piece of legislation which could be used to obtain a presumption of death.

18. The Act provides that "any person having an interest" (s1.(1)) can raise an action in the Court of Session or the sheriff court to have a missing person "thought to have died or not known to be alive for a period of at least seven years" (s1.(1)) declared dead by decree. Any person having an interest would obviously include close family members and civil partners but could also include others such as creditors. The Scottish law, and the more recent Northern Irish law, have, in common with the established common law principle, used seven years as the minimum time elapsed since disappearance but we understand that a number of American states use shorter periods. The court also has the power to determine

6 Ibid s1(4) 7 The Births and Deaths Registration Act 1953 and the Registration of Births and Deaths Regulations 1987 (SI 1987/2008) 8 Report on Presumption of Death, Scottish Law Commission 34 (1974)

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any questions relating to interests in property arising as a result of the missing person's death.

19. The decree is subject to a variation order (except in so far as it applies to marriage or civil partnership) in the event that new information arises concerning the missing person, such as a change in the estimated date of death or, in extreme cases, the reappearance of the disappeared. Trustees of the missing person's estate are required, unless directed otherwise by the court, to insure against any variation orders being made. In a similar vein the beneficiaries of any life insurance policies that pay out as result of a declaration are required to insure themselves against a variation.

20. We understand that in Scotland approximately four to five orders are made each year, and that there has been only one occasion since inception that a missing person has reappeared and applied for the revocation of the order.

21. The Private Member's Bill9, is very closely modelled on the Presumption of Death (Northern Ireland) Act 2009, with certain adjustments for application in England and Wales.

22. It envisages that the time period during which a missing person may "not be known to be alive" will remain seven years, in line with the existing Northern Irish and Scottish legislation, the common law principle and a Council of Europe recommendation10. It does however allow for a shorter period in circumstances where the missing person is likely to be dead11, for example, disappearance on a time limited expedition.

23. The Bill (as does the Presumption of Death (Northern Ireland) Act) empowers the court to determine any question regarding the property of the presumed deceased at the same point as making the declaration. As any declaration is capable of variation12 trustees are obliged to take out insurance against that possibility13. However, unless there are "exceptional circumstances", variations of orders made with respect to property can only be made up to five years after the initial declaration.14 This provision is intended to increase the certainty

9 The Presumption of Death Bill 2009 10 Recommendation CM(2009)12 of the Committee of Ministers to member states on principles concerning missing persons and the presumption of death 11 The Presumption of Death Bill Clause 1(1)(a) 12 Ibid Clause 5(1) 13 Ibid Clause 7 14 Ibid Clause 6(5)

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available to beneficiaries and trustees and could also reduce the cost of the insurance that they would obliged to take.

24. The Bill gives any person the opportunity to intervene in an application for a declaration or an application for the variation of an existing declaration15. This right is subject to the leave of the High Court except in the case of close relatives of the deceased16.

25. Finally, the Bill provides that the Registrar General should keep a register of Presumed Deaths17 and that he has an obligation to enter on the register the names of those whom the High Court has declared Presumed Dead18. The Bill also obliges the Registrar General to amend the register in response to any variation orders made by the High Court19. A certified copy of the entry made in the register would then, by law, be treated as evidence of death, without the need for further proof,20 and would therefore operate in the same way as death certificates do now.

Is there a need for legislative or procedural change in England and Wales? If so, what form should these changes take? 26. We have discussed above the benefits that we believe would accrue from the creation of a procedure to issues certificates of presumed death, valid for all purposes. We have also discussed a number of different ways in which change could be effected, and concluded that legislative change is to be preferred, for the reasons outlined above.

27. To summarise, our view is that the current system regarding the presumption of death of missing persons is unsatisfactory because of the need to take different court proceedings to address different legal issues, and because, even when such proceedings are followed, ongoing problems and delays result from the reluctance of financial and other institutions to deal in the absence of a formal death certificate.

28. This is inevitably time-consuming and confusing for non-professionals and professionals alike. It is also costly, takes up more court time, and could be

15 Ibid Clause 10(1) 16 Ibid Clause 10(2) 17 Ibid Clause 15(1) 18 Ibid Schedule 1 Clause 1 (2) 19 Ibid Schedule 1 Clause 2 (2) 20 Ibid Schedule 1 Clause 6

PD 08

avoided if a system of certification and registration were available. Other options for reform do not provide the comprehensive solution that new primary legislation would offer, and, in practice, would tend to complicate or distract from the roles of established institutions and personnel.

29. As far as we understand, the legislation in Scotland has worked effectively since 1977 and has provided a much more satisfactory regime for the families of missing persons and their professional advisors. The Bill attached would, if enacted, provide England and Wales with a similar regime, with some minor adjustments.

30. We would therefore urge the Committee to recommend that new legislation be passed in this area in order to clarify and simplify the legal procedure whereby missing may be persons presumed dead. While the benefits of this will accrue primarily to the families of missing persons and their advisors, it would also be of benefit to other interested parties such as creditors, and, we believe, would be in the public interest more generally.

September 2011

PD 09

Written evidence from the UK Missing Persons Bureau, part of the National Policing Improvement Agency

Executive summary

1. It is estimated that approximately 200,000 people were reported missing in Britain in 2009/10 and approximately 2,000 may have been missing for more than a year. As of September 2011, the UK Missing Persons Bureau has approximately 5,500 outstanding missing persons and approximately 1,000 unidentified people, bodies and remains on its database. As seen in the recent Parliamentary Inquiry into support for families of missing people, families find the current procedures regarding presumption of death in England and Wales complex, lengthy and bureaucratic.

2. The Ministry of Justice and the UK Missing Persons Bureau are producing guidance on holding a Coroner’s inquest under Section 15 of the Coroner’s Act 1988. This may assist the families and police in understanding the current remedies available but may not solve the specific issues with current legislation.

3. Issues could be solved by simplifying the current presumption of death procedures in line with Scotland and Northern Ireland and amending the Coroners and Justice Act (2009) so that an inquest may be held in the coroner’s district where the person is registered as missing. The introduction of a “guardianship” or similar order, like that in Australia, would allow families to manage the affairs of a missing person prior to the need for an application for presumption of death.

4. A body or unit such as the Bureau could have the responsibility for reviewing unresolved missing person cases, in order to identify cases where a presumption of death order or s15 application would be relevant. The Bureau should also be notified of all applications under this legislation.

Introduction

5. The UK Missing Persons Bureau, part of the National Policing Improvement Agency (NPIA), is the only UK public body focussed exclusively on missing people. It provides integrated operational services for all missing people in support of law enforcement and other agencies.

6. The Bureau’s role with regards to presumption of death is to provide advice and support to police forces as part of its national coordination function, ensuring consistent and comprehensive support to the public during missing enquiries. It will also signpost enquiries from the police and public to other relevant agencies and NGOs – this is part of the Bureau’s role as the UK national and international point of contact for all missing persons and unidentified bodies cases, and the centre for information exchange and expertise on missing person issues.

Does the current system work effectively?

7. The NPIA estimates that approximately 200,000 people were reported missing to UK police forces in 2009/10. While the majority were found safe and well, 0.2 to 0.9% were found dead within the same year1. Data from a number of police forces and academic research suggests that the majority of missing people will be found or will return relatively quickly. Tarling and Burrows (2004)2 reported that 46% of a random sample of over 1000 cases reported to the Metropolitan Police were resolved within 48 hours. This increased to 92% in one week and 97% in one month. Overall, 99% of cases were resolved within a year.

8. Extrapolating from the estimates above, approximately 2,000 (who go missing each year) will be missing for more than a year; it is not known how many of these people may have died. As of September 2011, the UK Missing Persons Bureau has approximately 5,500 outstanding missing persons and approximately 1,000

 1 National Policing Improvement Agency (2011) Missing persons: Data and analysis 2009/2010. NPIA: Bramshill. 2 Tarling, R. and Burrows, J. (2004) The nature and outcome of going missing: the challenge of developing effective risk assessment procedures. International Journal of Police Science and Management, Vol. 6, No. 1, 16-26 unidentified people, bodies and remains on its database3. The numbers of grants of leave to swear death (the number of applications/grants of presumption of death orders is not held centrally) appear below: • April 2008/March 2009 – 17 • April 2009/March 2010 – 16 • April 2010/March 2011 – 144

9. The Missing Persons Taskforce under the previous government was established to improve the multi-agency response to missing people. It proposed that current procedures regarding presumption of death could be simplified. This work continued in the recent Parliamentary Inquiry into Support for the Families of Missing People which highlighted “an absence of clear and informed guidance and support” and “disparity of legal provisions”5 with regards to the complex legislation surrounding presumption of death. Lack of guidance is not only an issue for families but for legal professionals, police and other agencies too.

10. The police should be able to signpost families of missing people to NGOs such as Missing People or the Citizens Advice Bureaux for advice and guidance on practical, financial and legal issues. Referrals are seldom made because police officers are unaware of or unknowledgeable about existing provisions. While lack of relevant training may be a factor, the complexity of the diverse processes and legislation regarding presumption of death compounds this problem.

11. The legislation of most direct relevance to the Bureau is that of Coroner’s inquests. The Ministry of Justice and the UK Missing Persons Bureau are jointly producing guidance on holding a Coroner’s inquest under Section 15 of the Coroner’s Act 1988. The Bureau considers the criteria for a Coroner’s inquest to be too restrictive. For a Coroner to conduct an inquest there must not only be evidence to suggest the person is dead, but that the death occurred in the Coroner’s district. It  3 This may be an underestimation. Prior to the introduction of the Code of Practice on the Collection of Missing Persons Data in 2009, data was not routinely collected from forces. The Bureau may also not have been notified of all missing persons or bodies found (conversely, some of the open cases on the database may be resolved but the Bureau has not received notification of this). 4 Obtained from the Ministry of Justice “Coroners, , and Inquiries” on 14/09/11 5 All-Party Parliamentary Group for Runaway and Missing Children and Adults (July 2011) Inquiry: Support for Families of Missing People: Report with recommendations.

is not always possible to provide evidence to this effect (particularly when there is no body or an identified crime scene) and thus many families are denied the opportunity to obtain a death certificate due to this geographic restriction, despite evidence to indicate that their loved one has died.

12. Only a handful of requests for permission to hold an inquest without a body are made each year (twelve or so cases over three years, 2007-2009, under Section 15 of the Coroners Act) and are mostly as a result of pressure from family members6. The majority of these cases are not missing person cases but are linked to unrecovered bodies e.g. people lost from ships and unreturned divers. It would appear that, for a variety of reasons, most cases are not notified to a Coroner. This is possibly due to a lack of police understanding about the process.

Does the current system create difficulties for families, and if so, how can these be resolved?

13. It is not the Bureau’s place to set out the experiences of family members of missing people. The Missing People report “Living in Limbo”7 sets out the financial and practical difficulties of families and Rachel Elias, Alan Smith, Jacqui Hoyland and Peter Lawrence provided powerful testimony regarding their experiences in the recent Parliamentary Inquiry.

14. The Bureau is aware however that families of missing people find the current procedures regarding presumption of death in England and Wales complex, lengthy and bureaucratic. The main difficulties faced are: • the lack of knowledge and understanding and expertise evidenced by police and legal professionals; • the need to follow different processes to dissolve a marriage and administer a missing person’s affairs.

15. Whilst the Bureau is working with the Ministry of Justice in order to produce guidance that may assist the families and police in  6 Source: Nick Matthews, Coroners Team, MoJ; the Bureau’s request to MoJ for information followed numbers published on BBC website after FOI application. Note that the majority of these cases are not missing cases but are linked to unrecovered bodies e.g. people lost from ships and unreturned divers 7 Holmes, L. (2008) Living in Limbo: The experiences of, and impacts on, the families of missing people. London: Missing People. understanding the current remedies that are available, this will not solve the specific issues with current legislation; namely its complexity and unnecessary bureaucracy.

16. These issues could be solved by simplifying the current procedures in line with Scotland and Northern Ireland. The introduction of Presumption of Death legislation which would allow families to go to court once to deal with all of their missing relative’s affairs (e.g. dissolve a marriage, gain approval to administer the estate) would be more efficient both financially and in terms of time. A simplified system would be better understood by legal professionals and other interested/associated parties, and the development of comprehensive and informed guidance would be easier.

17. A third separate but related issue is that families can do little to manage and protect a missing person’s assets until the person has been missing for 7 years and a leave to swear death order has been granted. Issues with paying mortgages and bills arise very quickly and banks often refuse to let anyone but the missing person gain access to accounts or amend payment details.

18. This issue could be resolved by the enactment of new legislation, separate but related to presumption of death legislation. Families should be able to apply for a “guardianship”8 or similar order to gain approval to manage the financial and practical affairs of the missing person until they return (or until the family wishes to apply for a leave to swear death order). This would differ from applying for a leave to swear death order where one is seeking to administer (and not simply manage) a person’s assets. Whilst we appreciate that this is not directly part of the current inquiry, as any such provision would impact on the procedures regarding these cases, and would also require an amendment in current legislation, it is felt worthy of inclusion. The ability to assign a missing person a form of ‘protected status’ such as that given to those who may for mental health reason be incapable of administering their own affairs would enable families to ensure that neither they or their missing relative is unfairly disadvantaged whilst the individual is absent.

 8 A guardianship order is a court appointment which authorises a person to take action or make decisions on behalf of an adult with incapacity. A guardianship order can be in relation to property and financial matters, personal welfare, or a combination of these. It is not currently used in relation to missing people. What can we learn from the experiences of Scotland and Northern Ireland, which have Presumption of Death Acts?

19. Both Scotland and Northern Ireland acknowledged that their previous systems regarding presumption of death were confusing and complex, “archaic and unsatisfactory”9 and therefore decided to enact new comprehensive legislation. The Scottish Government’s evidence to the recent Parliamentary Inquiry stated that the law is “operating effectively” and the Northern Irish Assembly consultation document concluded that “The Scottish legislation has worked well over the years and the Department is confident that it provides a sound template on which to base a new piece of legislation for Northern Ireland.”10

20. The Bureau proposes that both Acts can provide a basis for corresponding legislation in England and Wales. Any English and Welsh legislation should follow the precedent of any person with an interest being able to apply for a declaration that the missing person is presumed to be dead with the safeguard that the court can “refuse to hear the application if it considers that the applicant does not have sufficient interest in the determination of that application”11 as in the NI Act.

21. In Scotland and NI, a record or Register of Presumed Deaths is maintained by the Registrar General. This should be stipulated in any English and Welsh legislation due to the obvious benefits of recording such information.

Is there a need for legislative or procedural change in England and Wales? If so, what form should these changes take?

22. The Bureau’s view is that England and Wales should adopt presumption of death legislation similar to Scotland’s and Northern Ireland’s. It seems reasonable for each country in the UK to have a similar presumption of death act. The Irish Law Reform Commission is considering the adoption of a presumption of death act in the Republic of Ireland too and will publish a white paper on the matter in due course.  9 Scottish Law Commission (July 1974) Report on Presumption of Death. Edinburgh: Her Majesty’s Stationary Office. http://www.scotlawcom.gov.uk/publications/reports/1970-1979/ 10 Northern Irish Assembly (January 2008) Presumption of Death Bill Consultation. 11 Presumption of Death Act (Northern Ireland) 2009 http://www.legislation.gov.uk/nia/2009/6/contents

23. There is also international interest on this subject. The Committee of Ministers of the Council of Europe has called for the supplementation and harmonisation of the legislation on the presumption of death of missing persons in member states (09/12/2009)12. The Committee cites greater mobility and increased risk and occurrence of terrorist attacks and man-made or natural disasters as reasons for the need for common or compatible legislation.

24. If a person is thought to have died, the Scottish and Northern Irish Acts allow for declarations of presumption of death at any time (it is assumed that the court decides what is sufficient evidence to indicate that the person is dead.) For other cases however, the missing person must have “not been known to be alive for a period of 7 years”. This is a considerable length of time to wait to manage person’s estate. If the time requirement was omitted from the Act, the court would have the responsibility of deciding whether the declaration is premature or whether further enquiries should be undertaken. Safeguards could be put in place to ensure fairness and penalties introduced for fraudulent or inappropriate claims. The removal of any time constraint is supported by ACC Phil Thompson (the retiring Association of Chief Police Officers,lead for missing persons). The Committee of Ministers of the Council of Europe (cited above) also suggests that: • if the death can be taken as certain, there should preferably be no waiting period • if the death of the missing person is likely due to the circumstances of the disappearance, the maximum waiting period for lodging a complaint should preferably be one year (at the most) • if the death is uncertain, the maximum waiting period should preferably be seven years.

25. The consultation in Northern Ireland considered that some spouses may want to administer their loved one’s assets and remain married but decided that “it is undesirable for a person to be  12 Directorate General of Human Rights and Legal Affairs (2009) Principles concerning missing persons and the presumption of death: Recommendation CM/Rec (2009)12 www.coe.int/t/DGHL/STANDARDSETTING/FAMILY/Fact%20Sheet%20on%20missing %20persons.pdf Recommendation CM/Rec(2009)12 of the Committee of Ministers to member states on principles concerning missing persons and the presumption of death https://wcd.coe.int/wcd/ViewDoc.jsp?id=1563505&Site=CM&BackColorInternet=C3C 3C3&BackColorIntranet=EDB021&BackColorLogged=F5D383 recognised as dead for some purposes but not others”13. A “guardianship” or similar order, as discussed earlier, may be able to alleviate this concern, as it would allow families to manage their loved one’s affairs for many years until they felt ready to apply for presumption of death. This provision would enable a nominated individual (the next of kin or a legal representative) to manage the practical affairs of the missing person as soon as necessary (with restrictions and safeguards) without the need to register the person as presumed dead. Safeguards would obviously need to be in place, particularly in cases where it is suspected that the applicant may be involved in the disappearance. It would therefore be preferential for it to be possible to nominate an independent impartial party to manage the missing person’s affairs in their best interests.

26. This is not a wholly novel proposition. In Australia with its comparable criminal justice and coronial systems it is possible to appoint a trustee or set of trustees to manage a missing person’s affairs after 90 days if all reasonable efforts have been made to find the person. The process of application is free and the appointment made by the Australian equivalent of the Court of Protection.

27. The best forum for declarations of presumed death in England and Wales may be the civil court or Coroners court. There are more civil courts and therefore this may be the most efficient way. However, given that the responsibility for deaths in England and Wales sits with Coroners, it may make more sense for the presumption of death procedures to fall within their remit. Whilst any procedural amendments of this kind are likely to increase the work of the Coroners court, it is unlikely that a change in legislation would result in an unmanageably large volume of cases as the majority of missing people return very quickly; the number of long term missing persons is low. Also, the charity Missing People reports that only 171 people have been presumed dead in Scotland since the introduction of the legislation.

28. The Bureau also recommends amending the current legislation regarding the holding of an inquest without a body (s15 of the Coroner’s Act) to remove the seemingly arbitrary geographic restriction. In missing person cases, where there is no body, surely the location where they were resident and where they were last known to be alive is of more relevance, and could be used as a manner in which  13 Department of Finance and Personnel (May 2008) Presumption of Death Bill (Northern Ireland) 2008: Report on consultation.

to determine which Coroner has primary responsibility. It is already possible to transfer responsibility for an inquest, and therefore this could be used should the body be located in other Coroner’s jurisdiction.

29. It was suggested in the Parliamentary Inquiry that the cost of enacting new legislation might be outweighed by the benefits. The infrastructure is already in place to effect the new legislation and the number of applications made is unlikely to be high. Moreover, families would only need to go to court once which would save court time and reduce legal costs. Lord Boswell also suggested an indirect cost saving through reduction in benefit payments as at present some people may have to apply for benefits because they are unable to access their loved one’s assets.

30. If new legislation is enacted, it might be prudent to give a body the responsibility of reviewing long term missing person cases or cases where someone is believed to be dead, in order to identify those where a presumption of death order or a s15 application would be relevant. The NPIA is being phased out; however, the natural home for this function would be the Bureau until the detail of the policing landscape is specified. The Bureau would need powers to action further investigation by police forces and could act as a gatekeeper to the process.

31. The Bureau would also like to see a national referral system where the Bureau is notified of all applications for presumption of death. This would enable the Bureau to review the case (e.g. ensure it is recorded on the database and search the database for any unidentified bodies/remains/people matching the missing person’s description). If a body is found in this way, a presumption of death declaration would be unnecessary.

Recommendations for action

32. England and Wales to enact presumption of death legislation similar to that of Scotland and Northern Ireland including provisions for a register of presumed deaths.

33. The UK Missing Persons Bureau should be notified of all applications under this legislation to enable searching of the UK database.

34. The introduction of a “guardianship” or similar order that would enable a nominated individual to manage the practical affairs of the missing person as soon as necessary without the need to register the person as presumed dead.

35. Amendment to the current Coroners and Justice Act (2009) advising holding the inquest in the coroner’s district where the person is registered as missing, unless there is strong evidence to suggest that the body is within another jurisdiction.

36. A body or unit such as the Bureau to have responsibility for reviewing unresolved missing person cases, in order to identify those cases where a presumption of death order or s15 application would be relevant.

September 2011 PD 10 Written evidence from Judy Lancaster

1. Background; My Son, Chay Lancaster age 41, went missing from home on Sunday 12 September 2010. He regularly went walking in the Lake District in Cumbria at weekends. CCTV evidence shows him arriving that day by train: there is no evidence to suggest he returned. Chay lived alone in a mortgaged house: he was divorced 14 years ago: he had 3 daughters from the marriage who he was very close to and are his sole beneficiaries.

2. Does the current system work effectively?

2.1. From my experience I am not sure what the current system is. In order to deal with day to day personal and financial issues I had to trawl the internet to find information. This was very time consuming and confusing. In our case it was over a week before the family were aware that Chay was missing. It transpired he had not reported for work or telephoned to explain his absence. His Manager said this was very unusual as he always applied for leave of absence and made arrangements for his work to be covered (Chay worked with adults with learning difficulties and understood his duty of care towards them in his absence).

2.2 When someone goes missing the first port of call for help is the police. Whilst they ask the right questions to establish whether there were personal problems which suggested my son went missing deliberately I found that they were not equipped to help when it came to questions of a practical nature. An area of significant improvement would be for the Police to have a professional person in place who is capable of giving sound advice and practical help to relatives to ease the frustration. A simple leaflet could be prepared stating where to find help and what needs to be done.

3. Does the current system create difficulties for families?

3.1. In the initial stages of Chay’s disappearance I was at a loss on how to start handling his financial affairs. It was imperative his house be protected from repossession. I found financial institutions extremely difficult to deal with as they appeared to have no experience of dealing with these cases. We were fortunate that Chay’s bank account was in credit and most expenditure was paid by direct debit, however, when trying to stop some of the payments which were no longer relevant I was unable to do so. His bank have not responded to all correspondence and trying to make contact by phone is expensive and my experience is that it leads to being connected to a person who has no experience in this area. Financial institutions should have guidelines on how to handle a Missing persons affairs and provide practical help to resolve issues that arise in this situation.

4. Presumption of Death

4.1. I have found this very difficult to approach and as a consequence have not taken any action in this respect. From the beginning I have accepted that Chay met with a tragic accident but unless his body is found we may need to go down this route as waiting 7 years is not an alternative. I will shortly be looking at taking legal advice and accept that I will have to pay for this. We now need closure and to be able to bring his affairs to a conclusion. My Grand Daughters are entitled to their rightful inheritance, albeit small, and it is what their father would have wanted. I would welcome changes to the current situation to enable a quick and straightforward procedure to be put into operation as quickly as possible.

September 2011 PD 11

Written evidence from Vicki Derrick

1. My name is Vicki Derrick and my husband Vincent (Vinny) Derrick has been missing since 30th August 2003 during the past eight years I have not only had to deal with the fact that my husband is missing, I have also had to continue to pay the mortgage and bills etc. It has been at times extremely difficult and one of the worst experiences I have ever had to deal with.

2. Does the current system work effectively? Quite simply NO it doesn’t. I have first hand experience of how difficult it is to try and resolve financial matters when someone goes missing, for the past fourteen months I have been trying to do just this, as my husband has now been missing for over seven years.

3. Like many people I believed a person is presumed deceased automatically after 7 years, however this is not the case. I initially spoke to the police for advice and guidance who suggested I contacted a solicitor, again I have spoken to quite a few solicitors and have yet to meet one who has dealt with anything like this, while I understand that my case is very rare I am absolutely astounded that in this day and age there is no proper measures in place to offer families like myself the proper help and guidance we deserve.

4. I now have a solicitor (who has never dealt with a case like this before) who is helping me to try and get a life insurance policy that myself and my husband took out in 2002 paid out. Again the insurance company have never paid out on a policy like this before and I have faced many hurdles over the past fourteen months; no one seems to know the correct way to proceed with this or what legal paperwork they need from me to enable me to deal with my husband’s affairs, not the insurance company, solicitors and even the courts at the time of writing this I am still no further along. I feel very let down and frustrated.

5. I feel very strongly that this matter should be looked into and investigated further. The solution is very simple: we need to follow the way of Scotland and Northern Ireland and have a Presumption of Death Act in place in England and Wales to create one straightforward procedure that enables families to sort out all financial matters.

6. To summarise I can’t fully explain the nightmare I have been living for the past eight years, the unknown of not knowing what has happened to my husband and if I ever will, the fact that life still goes on bills need to be paid, we have a ten year old son and I will keep fighting on for him to enable he has the secure future he deserves.

September 2011

PD 12

Written 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 -

1 PD 12 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:

ƒ 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.

ƒ 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.

ƒ One of the measures, a certificate of presumed death, is only available to servants of the Crown i.e. armed forces, merchant seamen and embassy workers and not to civilians, highlighting potentially discriminatory treatment.1

ƒ Legal professionals are unfamiliar with and confused by presumption of death provisions and are therefore unable to give advice effectively.

ƒ Police forces struggle to provide families of missing people with guidance about this issue.

ƒ Demands by legal professionals and families are placed on charities such as Missing People to provide clarity.

ƒ Some applications to the courts fail as a consequence of uncertainty about what will happen if the missing person re-appears.

ƒ 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?

1 The Scottish Law Commission report on presumption of death (1974) notes that the courts ‘have been less exacting in presuming the death of seamen, soldiers on active service and persons upon expeditions to unexplored territories’

2 PD 12 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:

ƒ The length of time that applications take.

ƒ The expenses incurred by families as they navigate the legal system.

ƒ The time and costs to families of having to prepare paperwork and other evidence.

ƒ The mistaken belief that action can only be taken 7 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 i.e. a suicide note

ƒ Legal professionals being unable to advise and guide families through the legal system as it currently stands resulting in frustration and confusion.

ƒ 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.

ƒ The legal documentation acquired by the family through the court system not being accepted by banks/insurers.

ƒ 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.

3 PD 12 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:

ƒ 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.

ƒ Existing statutory presumptions of limitation of life are not suitable for all purposes2 since they only cover specific situations.

2 Including: the right to succeed to the missing person’s property; the right to succeed to other property consequent upon the missing person’s death; the disburdenment of property from a liferent; the right to proceeds of policies of assurance upon the missing person’s life or contingent upon his/her death; the right to the payment of annuities, whether or not under policies of assurance; the winding up of trusts and the cessation of annuities; the right to pensions under state and private pension schemes; the dissolution of a

4 PD 12

ƒ The expense occasioned by the multiplicity of proceedings.

The SLC report also highlighted to the APPG additional considerations, including:

ƒ 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.

ƒ 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.3 Not only may a multiplicity of procedures be required, but the may differ as between actions under the common law and those proceeding upon the statutory presumptions. This could conceivably result in a scenario whereby a wife whose husband has disappeared may be successful in undertaking action to establish her right to re-marry but may fail in her attempts to recover monies under insurance policies on her husband’s death.

ƒ 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. marriage and the right of the surviving party to remarry; the dissolution of other contracts; the right to dispense with the missing person’s consent 3 The fact that a presumed death will only apply to proceedings before the court and has no wider application is also noted in the draft consultation paper on presumption of death developed by Clifford Chance in collaboration with Missing People.

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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.4 Lord Boswell tabled a Presumption of Death Bill for England and Wales which, despite cross-party support, failed at its second reading.

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:

Difficulties with the current system Solutions proposed within the draft Presumption of Death Bill The provisions that exist in common The practical and legal effect of a law, statutory legislation, primary declaration of presumed death is legislation, secondary legislation and that the missing person may be probate laws do not apply for all treated as dead. The draft Bill circumstances where proof of provides explicitly that the presumed death is required. declaration shall be effective for all purposes.

Neither the limited statutory The draft Bill makes provision for provisions, nor the common law can the maintenance of a Register of assist in the issue most directly Presumed Deaths by the Registrar affecting a person’s status – the General. registration of their death. 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

4 The Scottish Law Commission report on presumption of death (1974) noted that to remove the limitations and to eradicate the defects of the law as it existed before the new legislation was enacted would ‘be a partial cure at best’

6 PD 12 all purposes, in the same way as a death certificate. One of the measures, a certificate of The draft Bill harmonises presumed death, is only available to presumption of death legislation servants of the Crown i.e. armed across the UK. 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. Some applications to the courts fail The draft Bill deals with the as a consequence of uncertainty possibility that the missing person is about what will happen if the missing later found to be alive or to have person re-appears. 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 The draft Bill establishes a single causing confusion and emotional and straight-forward process that distress to the families of missing can be understood by all. 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.

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Demands placed by both legal professionals and families on charities such as Missing People to provide clarity.

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.

8 PD 12 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

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Written evidence from the Association of British Insurers

1. The ABI is the voice of insurance, representing the general insurance, investment and long-term savings industry. It was formed in 1985 to represent the whole of the industry and today has over 300 members, accounting for some 90% of premiums in the UK.

2. Executive summary

2.1. The ABI believes that the current system does work effectively in conjunction with the measures that the insurance industry itself has put in place (see below) to ensure that life insurance payments are paid without delay. We understand, following meetings with Missing People, that they have been speaking to the banking industry about the issue of taking over bank accounts to ensure that important direct debits continue, yet cancel other direct debits, such as gym membership, to ensure that funds remain.

2.2. This is an issue which the insurance industry would like addressed as it affects the continuing payment of premiums and can cause policies and the cover provided to lapse. We are working with Missing People to produce a leaflet explaining the process, which can be given to relatives and friends to help resolve a missing person’s insurance affairs.

2.3. The industry has introduced (with support from the Law Commission) an initiative that means for straightforward estates the claim can be paid promptly to the beneficiary helping to avoid hardship, especially for families on lower incomes who have few other assets available to rely on. This can also be applied to the infrequent cases of missing persons presumed to be dead.

2.4. If a change is implemented there would be an increased risk that ‘’going missing’’ may become more common if access to insurance funds without a "body" becomes easier and this may lead to an increase in fraudulent claims. 3. Does the current system work effectively?

3.1. The ABI believes that the current system does not work well with allowing friends and families access to manage financial affairs. This can result in lapsed policies, for example, lapsing house and contents insurance would leave properties uninsured. The ABI understands from its meetings with the organisation Missing People that it is in discussion with the banking industry about the issue of relatives and friends taking over bank accounts to ensure that important direct debits continue. This is a problem which the insurance industry would like to see addressed as it affects the continuing payment of premiums and can cause policies and the cover to lapse.

3.2. Where insurers are directly involved the ABI considers that the current system works effectively. Insurers generally find that each case is quite different, but have put in place processes to ensure that life insurance payments are paid without delay and people get the payments they need. PD 13

3.3. The insurance industry recognises that speed is important and has introduced new guidelines when waiting for probate, a common cause of delay. This process works provided it is possible to establish the .

3.4. If there is no body then insurers will look for whatever evidence they can find and if there is evidence that clearly points to death then insurers will accept this. For example, during the South East Asian tsunami an insurer was notified of a claim for a married couple whose bodies were never found. The claims were paid after four months when the insurer received confirmation from the government that they were officially listed as missing and presumed deceased. As a further example, a claim was made on a man who it was said had died in a plane crash in Africa, but there was no body. The plane crash made news on many media websites and after a few weeks the insurer received confirmation from the airline that he had been on the flight and the claim was paid.

3.5. The ABI understands that a Presumption of Death Act for England and Wales would also introduce a register of those presumed dead and a requirement for the ‘trustee’ to take out indemnity insurance to cover the missing person’s property and money. Feedback from ABI members is that claims arising from this situation occur very infrequently. Their feeling is that a register would not help alleviate as there is not usually a multiple claim and that insurers already have their own fraud registers in place.

4. Does the current system create difficulties for families, and if so, how can these be resolved?

4.1. Life insurance pays out a lump sum after the insured person dies helping families to cope financially. Insurers recognise that situations such as those presumed dead or missing are particularly stressful and distressing for relatives and loved ones; as such they aim to deal with each case as quickly and sensitively as possible.

4.2. The industry has introduced a ‘fast track indemnity process’ that means for straightforward estates the claim can be paid promptly to the beneficiary helping to avoid hardship, especially for families on lower incomes who have few other assets available to rely on. This approach can also be applied to the infrequent cases of missing persons presumed to be dead, and can equally be used in England and Wales, as well as Scotland and Northern Ireland.

4.3. There can be many legal issues to be resolved when someone dies. Depending on the circumstances, probate for example, this can mean that it takes a long time for life insurance companies to be able to pay out the proceeds. People who have lost loved ones have often had to wait months for life insurance payments.

4.4. The insurance industry recognises that financial hardship can arise due to the lengthy legal process associated with winding up a person’s estate. Whilst the same legal process applies to all assets, an early life insurance payout can help reduce financial hardship until other assets become available to dependents and family members. PD 13

4.5. Insurers have developed a new process to enable them to pay out relatively small amounts to claimants without waiting for probate, subject to certain conditions, including the completion of an indemnity agreement by the claimant.

4.6. The ABI published guidance earlier this year to encourage more insurers to adopt these processes and help reduce the financial hardship associated with delays arising from the legal process of winding up a person’s estate.

4.7. The ‘fast track indemnity process’ set out in the ABI guidance can be applied to a substantial proportion of life insurance claims for both new and in-force single life policies. We believe the process is simple for customers to understand and relatively easy for insurers to implement. It has been developed with the assistance of the Law Commission.

5. What can we learn from the experiences of Scotland and Northern Ireland which have Presumption of Death Acts?

5.1. The ABI would prefer to keep the current approach in conjunction with the initiative that the ABI has introduced.

6. Is there a need for legislative or procedural change in England and Wales? If so, what form should these changes take?

6.1. The combination of an increasingly difficult economic climate combined with increasingly fluid travel habits, may result in "going missing" becoming more common if access to insurance funds without a "body" becomes easier. A change in process would increase the risk that the monies are paid out which may at some point in the future need to be repaid.

6.2. Insurers must be very careful with the data they hold. Their customers have entrusted this data to them. The Data Protection Act (DPA) governs how insurers use data and can prevent insurers from disclosing information. This may create barriers and delays if the insurer is contacted by somebody who isn’t the policyholder.

6.3. ABI members believe that the restrictions imposed on them by adherence to the DPA should not be used as a ‘blanket’ blocking mechanism, but while striving to assist relatives where possible the person missing or presumed dead has a right of confidentiality which needs to be protected and fraud avoided.

6.4. A solution may be to establish a streamlined method of appointing a Power of Attorney or ‘guardian’ where someone is presumed dead or has been missing for a certain amount of time (policies generally lapse 30 days after non payment of the premium). This would also overcome the problem of handling a missing person’s financial affairs, for example their bank account and ensuring important direct debits continue to be paid whilst cancelling other direct debits such as gym membership or Sky subscription. This would ensure that a property remains insured and maintains life insurance premiums. PD 13

6.5. The ABI and Missing Persons are collaborating to produce a leaflet explaining the process, which can be given to relatives and friends to help resolve a missing person’s insurance affairs.

September 2011

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Written evidence from Kirsten Bennett

Presumption of Death Orders – The Pitfalls

1. Having entered into the profession as a newly qualified solicitor in April 2010 and going on to gain my Higher Rights of Audience I was asked by my probate department to apply for a Presumption of Death Order on behalf of a client (hereinafter “V”). Once obtained this would enable V to claim under her husband’s life insurance policy. To put this into context, V’s husband went missing on 30th August 2003. Whilst the circumstances following his disappearance are outside the remit of this submission, it should be noted that an extensive investigation was carried out following her husband’s disappearance by the police. Television and newspaper appeals were carried out, none of which proved successful.

2. Following his disappearance V struggled on a daily basis, she no longer had the income of her husband and was left to meet all the day to day expenses of running a household and bringing up a young son. During the next 7 years she received no help financially and was unable to deal with her husband’s estate until he had been missing for 7 years.

3. My research about surrounding Presumption of Death Orders revealed a hotchpotch of inconsistent law, with no one single point of reference. I discovered there were various ways of obtaining a Presumption of Death Order but there was no legislation that could give any guarantees that:

a. That the Presumption of Death Order would be granted; and b. If granted for what purpose it could be used for.

4. It was agreed that V would apply to the High Court for a Presumption of Death Order under section 19 of the Matrimonial Causes Act 1973. This in itself was quite a traumatising experience for her as not only was she making a much needed application for a Presumption of Death Order but she was inadvertently bringing an end to her marriage. PD 14

5. Submitting the relevant paperwork to Court was relatively straightforward. V had to swear an affidavit and submit her Petition to the High Court. The Principal Registry in London were extremely helpful and it was agreed that Manchester would be the venue of the hearing for ease of the parties.

6. The Judge in Manchester heard my client’s application and made a Presumption of Death Order. He was keen to ensure the wording of the Order was correct and that the Order could be used for the purpose my client required it; to claim the proceeds of the life insurance policy. The Judge commented that if the Insurance Company were still not satisfied and refused to release the fund, she could make an application to join the Insurance Company into the proceedings and that they would be at risk of costs. The Judge also pronounced the Decree Nisi.

7. The sealed Court Order was served on the Insurance Company on 9th June 2011 who responded on 19th July stating that they would pass the Court Order to the Company solicitor but were unable to provide a timescale as to when the matter would be dealt with. On the 1st August the Insurance Company responded and stated that they ‘would like to make some further enquiries’ into her husband’s disappearance particularly why the police had redacted their report. Furthermore they wanted to contact people who had assisted ‘in the search for her husband’. I have also recently learnt that as the Order itself does specifically refer to the Life Insurance Policy, they may have to refer the matter back to Court on the basis it is insufficient for their purposes.

8. It appears ludicrous that the Insurance Company now want to make further enquiries, had the Court been unsatisfied about the husband’s disappearance surely the Court would have been the appropriate body in which to raise the enquiries and not the Insurance Company. Further the Court would not have proceeded to make the Presumption of Death order. Although the Insurance Company initially stated that they would release the funds once a PD 14

Presumption of Death Order had been obtained, this appears not to be the case and they are still allowed to prolong matters at their own discretion.

9. If insurance companies had one point of reference e.g. a piece of legislation perhaps the process would be simplified and minimise the stress and anguish that people left behind following a disappearance of a loved one.

10. It appears that the system in place with regard to obtaining a presumption of death Order is seriously flawed. I read with interest the Enquiry from the APPG who presented their case to the House of Commons earlier this year. The Chief Executive of Missing People coined the different routes as a ‘crazing paving of legislation’ and as such there is always a danger of gaps where crazing paving exists and these gaps can deepen the emotional turmoil of people left behind.

11. If these gaps are either not filled in or the system is not completely overhauled the unsatisfactory state of this area of law will continue. Scotland and Northern Ireland have already identified the need for reform and have respectively brought in relevant statues to deal with missing people. Whilst it would appear that the only reason England have not caught up with their counterparts is because the draft bill prepared in 2009 lacked clarity, this should not be used as an excuse to continue to drag their feet. There is real call for change and I would contend it is not just by the relatives directly affected by a missing person but by the professionals who are left having to advise the families as to the law.

September 2011 PD 15

Written evidence from Anastasia Romanos

• A personal account of my own experiences of a family of a missing husband and father of our children. • The observations of a professional and intelligent member of the community. • A report of my contact with a variety of agencies in particular the obstacles and recognition of those whose assistance proved to be invaluable. • My research into the strategies and methods already in place in other countries and existing recommendations already proposed by various organisations. • My own recommendations and suggestions to the Select Committee of a positive way forward to ensuring that a well sign posted legislative infrastructure is implemented and embedded for supporting families of missing children and adults.

My response to APPG for Runaway and Missing People (Children and Adults) Inquiry: Support for Families of Missing People; Session Two ‐ Resolving a missing person’s affairs & presumption of death.

[1] Reading through the all the Parliamentary Inquiry Session transcripts and the concluding ‘Report of Recommendations to Support Families of Missing People (Children and Adults)’ brought up a whole ray of emotions from deep sorrow, sadness, to a strange sense of relief. A sense of affirmation and acknowledgement that long awaited voices of the families of missing children and adults are being addressed as clearly stated in the Universal Declaration of Human Rights (UDHR).

[2] The Human Rights Act for Protection clearly states the duty of the state to place measures to protect individuals and have adequate laws in place to punish those who violate the ‘Right to life of others’.

[3] This being the first ever inquiry in the UK to support families of missing people (Ann Coffey MP Chair of APPG), it is ashamedly obvious where the state has failed to meet its obligation as part of ‘The Duty to Protect‘ and act on the state to investigate in all cases of a breach of the right to life. ‘The Duty to Investigate’ has fallen far short of the guaranteed UDHR. This is where the need for a coherent legislative framework is desperately needed to avoid the present fragmented and disjointed system that families of missing people face daily some for years and unfortunately, forever for others.

[4] Whilst reading through the APPG Session transcripts of the experiences and difficulties faced by other families of missing people; I identified and related to them so easily. I find it incredibly difficult to comprehend why families in England and Wales have had to struggle blindly for so long without any guidance from the state.

[5] Many of the measures for safeguarding and supporting the families of missing people are explicitly detailed in ‘The International Committee of the Red Cross (ICRC) Handbook for PD 15 Parliamentarians [N°17 2009]’. Although, it is primarily focus is on the issue of missing persons due to armed conflict and internal violence. Other situations that give rise to the issue of missing persons include natural disasters, population displacement or terrorism. In essence the guidance and framework outlined in the above ICRC is relevant and deals with the issues and obstacles faced by families of missing people.

[6] Scotland, Northern Ireland, Australia and even Canada have systems in place to help families in situations where members are missing. My research has revealed that in many countries issues of such a sensitive nature have had some forms of coherent system or procedures in place – so alleviating the distress and torment already being experienced by families of missing people. In Canada, having a single point of contact reduces the likelihood of conflicting information that could result from dealing with multiple family members. Designating a family representative ensures that police know who to contact with updates about the investigation. It also allows for the family representative and the designated officer handling the missing person case to establish a level of comfort and trust in their communications regarding the case.

[7] Reflecting back over the past 5 years I am astonished at how long and lonely my journey has been to even get to this stage. The impact for families of missing people is far reaching and devastating than can be perceived at first sight. As my own experience shows there is a total lack of sign posting for family members to even begin dealing with issues of reporting, seeking help and raising awareness to their plight.

[8] The police are usually the first statutory service families will seek to obtain help and guidance. I bear no criticism of the Police Force I first made contact with. In my case, initial generic process was followed to eliminate foul play. Paul’s house was searched to make initial assessments as there was nothing out of the ordinary i.e. a body? I was designated a police officer to obtain feedback.

[9] When I raised concerns about the odd bizarre happenings I was directed towards the path that Paul was not a vulnerable individual having being a former soldier. He was not a priority even when I explained he suffered from PTSD, the emotional trauma our family was suffering and the concern we had about his house being repossessed. Responses given were such as “Paul is a grown man and has made his own decisions in the end” and “Paul decided to leave on his own accord” in spite of the fact that I kept on raising issues about his mental state. The police failed to take any action by following up on his medical records especially since I had been very explicit about this. I continued to remain in contact with Cambridgeshire Police Constabulary from January 2007 until April 2008. Throughout this contact I was first speaking to Sergeants, then an Inspector, and finally I was left to speak to Civilian staff. I felt that the Police were ‘washing their hands’ of me and my family. [See footnote 1]

[10] During this period, I had to take the initiative to contact the Child Support Agency to see if they had any information via their system of tracking absent parents. I was told there was nothing on record to establish his whereabouts. I then approached the Passport Office to check if his passport had been handed in or if he had travelled abroad recently. They were unfortunately unable to help due to data protection legislation. I was told that only the police would be able to obtain this information. Armed with these facts, I contacted Cambridgeshire Police to act on my PD 15 behalf. Upon the police following this inquiry, it was confirmed that the Passport Office had little to no information to assist with finding Paul.

[11] In April 2008, having exhausted this avenue of search (the police), I contacted the Foreign Commonwealth Office, seeking their support. I continued working with the Foreign Commonwealth Office who asked for information to build a profile of Paul. I contacted Paul’s dentist for copies on any dental records they held. Unfortunately, they didn’t hold any dental records. I passed all the information onto the FCO who were able to obtain records from the MoD. I felt as though I again, had to take the lead and use my initiative to find out any information that could help us. At the back of my mind, there was a constant worry that at any time, DNA samples would requested from the children. My main priority, as any parent, during the whole period of time, was to protect my children from any further unnecessary distress that they were already suffering. I remember during this time, my mind wandering back to the fact that it may even mean our unborn daughter’s sample tissues that had been kept by the hospital having to be recalled as a possible means of obtaining DNA.

[12] Another serious issue that arose was dealing with Paul’s financial affairs, for example his mortgage company. I informed the Halifax Bank of the current situation. I gave them his mortgage account number, and that he was four months behind on his repayments, which they confirmed. I asked them to make sure that this current situation was on his account records, ensuring they were aware of the context of why repayments had stopped. In essence, I was trying to ensure that Paul had a home to come back to. [Reference: Appendix A]. Other difficulties faced with Paul’s financial affairs have included his three pensions are protected.

[13] In addition to the psychological distress suffered as a result of Paul’s disappearance almost 5 years ago, it was compounded not only by the obvious lack of specialist support for families such as mine [See footnote 2]. It runs deeper, as we have been in a state of ‘limbo’ and constant uncertainty waiting as in a frozen time zone. You find yourself avoiding even talking about your plight; the aching pain, the distress and anxiety as others do not understand leaving you feeling stigmatised and isolated. It may be atypical to my experiences only but for Paul not to have attempted any contact has left me on hyper alert. Given Paul’s Armed Forces background and his complete disappearance off any radar drew me to researching websites of newspapers abroad in an attempt to find him. Instead I was faced to read horrific stories of violence and terror; what if he had got drawn into unsavoury associations that put his life at risk and unintentionally put our children’s safety at risk [See footnote 3].

[14] I found myself focusing all my energy and attention on searching for Paul whilst attempting to remain strong for the children and career; I completely neglected my own needs. My physical, emotional and mental health began to suffer but I remained oblivious to the signs; I even forgot how to enjoy life. With time, I withdraw socially and emotionally from those around me but never the children. Numbness lack of closure, the not knowing, has meant we have not even begun the mourning process. Over time you withdraw socially from others around you. The fear that missing loved ones will be forgotten forever, leaving no trace they ever existed plunges you into obsessive questioning “Who will remember them when I am gone?” There is no monument or register to even valid Paul’s existence. PD 15 [15] The enormity and the far reaching impact a situation like this can have is unbelievable unless of course you have lived through it. The ability to keep everything as normal as possible and the continual juggling (keeping all the balls in the air) eventually took its toll. It creeps up on you slowly, obviously you remain unaware as your physical health begins to deteriorate but you keep battling on. You continue believing you will bounce back and this is only a temporary blip. One day you wake up and realise how fragile and vulnerable you have become; that includes even those of us known for our strong mental resilience. No matter how hard you try to continue in your resolve to get back to the person you once were, the further you are slipping back. Eventually, this whole nightmare cost me my health and a much loved career. This may be extraordinary to my case but my vulnerability and difficult situation was exploited by my former employer in the ‘political office’ battles that go on the further up the career ladder you climb. Instead of choosing to be compassionate and supportive I was exposed to three years of what can only be described as ‘deliberate victimisation’ at work. I was unaware at the time I was being watched for nearly 3 years and to sum it up politely – ‘it was and had nothing to do with my Teaching Ability’. [Reference: Evidence available via ‘copy of a dossier’]

[16] My recommendations are based on my own experiences and from the in‐depth research I have carried out, so that no other family have to go through the horrendous ordeal accounted in this report. I found many of the issues and difficulties I have encountered over the past 5 years are interlinked; as one agency e.g. ‘health’ cannot work exclusively on its own to resolve the complex needs of families of missing people. The compelling evidence documented in the APPG Inquiry increasingly promotes the vital necessity for a multi‐agency approach. Within the Education System ‘The Common Assessment Framework ‘(CAF) a key part of the Every Child Matters Change for Children Programme has been a success in its aims to deliver front‐line services that are integrated and focused around the needs of children and young people. The CAF is a standardised approach to conducting an assessment of a child or young person presenting with additional needs and agreeing how those needs can best be met. Perhaps it is time that families of missing persons, who not only have to deal with the psychological distress caused by the disappearance of a loved one have access to such front‐line services as those referred to above.

[17] I believe the original proposals for the development and implementation of a Task force The NAPIA Missing Persons Bureau (MPB) is the direction the Government should be pursuing. The MPB did put into place some very important and necessary strategic measures but was not far reaching enough as it was subsequently abandoned. The present Governments intention of setting up a new body to continue the work started by the MPB is a crucial and necessary to addressing the issues raised by the findings of the APPG ‘Report of Recommendations to Support Families of Missing People (Children and Adults)’ June 2011. In my opinion the basis of the foundations set up by the MPB need to be embedded into a legislative form for it to work effectively and address all the areas that were raised at the above APPG. The difference needs to be seen and felt at grassroots level – by families of missing children and adults. I am not convinced that the manner in which the ‘new proposed body’ is being an ‘add on’ to the Government consultation as documented in the framework for ‘Policing in the 21st Century.’ [September 2011]. PD 15 [18] I urge the committee to give the ‘new proposed body’ the recognition and sustenance that it deserves anything less falls far short of supporting families of missing children and adults. I am aware of the importance of liaison with the Police Forces but we must not forget that Police Forces are already stretched by the ever increasing intricacies and complexities of crime in the 21st Century. My account of my family’s last 5 years vividly highlights that there are still many families who still fall through the ‘net.’ This is due to the lack of signposting and the existence of a clear working infrastructure being in place. My own unfamiliarity and lack of knowledge of the work of charities like ‘Missing People’ meant I did not make contact with them until the Foreign Commonwealth Office personally directed/introduce me to the ‘Missing Peoples ’charity. Prior to this I knew the existence of such charities but never beyond the raising money front or even the adverts you walk past outside supermarkets. I would never have fathomed the machinery at work behind the ‘shop front’ of charity work. This only validates my argument for the existence of legislative body to deal especially with all the difficulties those families of missing people experience.

[19] The issue of the absence of legal provisions makes the lives of the families’ of those missing extremely difficult and the harsh realities are many suffer financial hardship in addition to all the other stresses. Tim Humphrey’s Association of British Insurers expresses his opinion in the APPG ‘Report of Recommendations to Support Families of Missing People (Children and Adults)’ June 2011. “Industry‐wide guidance would be welcomed by the membership….I think insurers would like to know they can act in a certain way as regards data protection… I think they would like to be provided with that reassurance.” Here there is a clear plea from the British Banking and Association of British Insurers for legislation to be put in place for them to follow. This is indeed an area that the ‘new proposed body’ could administer and oversee by liaising with the appropriate agencies. Here my previous objection to the ‘new proposed body’ being an ‘add on’ to the British Police Forces holds ground. We cannot expect our police forces to also deal with financial difficulties that the family of a missing person experiences. Can I emphasise in my own personal experience the police made it very clear it was out of their jurisdiction and advised me to seek legal support. This current disjointed practice again strengthens my argument for a dedicated Task Force to deal with every aspect of support and help to the families of missing children and adults. The presumption of death would thus be dealt with in a coherent system and each case be considered duly within the context of each individual circumstances based on evidence. [See footnote 4].

[20] We must remember despite the stereotypical stigma attached to the image of ‘missing people’ that in essence we are dealing with ordinary hard working families from varying backgrounds(I refer to Lord Boswell, the parents of Madeline McCann and of course my own family [Reference: Appendix B].) Families I make reference to above like many other families out there(including my own family) are a real assets to society but when the tables are turned; there is no infrastructure in place to help these very same valued members of the community – then there is an enormous loss to humanity.

November 2011

PD 15

[Footnote 1] Further hitches emerged in 2010 following an enquiry I made to Derbyshire Police Constabulary, exposed a lack of communication and co‐ordination between police forces. I had believed that in the 21st Century (due to the level, complexity and intelligence of crimes committed) we would have had a ‘National Police Database’ of sorts, which the police could access when required.

[Footnote 2] Families are already unable to grieve because how can you grieve when you do not know – it is a waiting game. I found it extremely difficult to talk about what was going on at the time, as it is such bizarre and unchartered territory you find it difficult to communicate your emotions and fear the response from others. I still don’t know how I am still here today – looking back retrospectively, ‘I could weep for that woman and her children’. Kate McCann clearly reiterates the point… ‘We are medically trained and we couldn’t function….I think it is paramount importance that psychological support is offered to the family’ [APPG June 2011].

[Footnote 3] I changed our children’s surnames, made the schools they attended aware of the necessity for extra vigilance re: security whilst they were at school. It has now come to the point I have requested a change of ID for our safety and my peace of mind. I would like our children to grow up without having to be in a state of continual vigilance and fear.

[Footnote 4] I like many others view the ‘Presumption of Death Bill’ with caution. However, we can draw from the experiences of legislation already in place in Scotland and Northern Ireland and even countries like Australia for guidance as to workable practicalities. My personal opinion lies with the view that each case presented to the court must meet criteria before a court will consider a decision. The court’s decision must take each case on its merit, as believe me no single ‘missing persons’ situation is the same as any others. There are core familiarities but each will tell its own story. This is why the ‘Presumption of Death Bill’ cannot be classified into a tariff style system but instead must have room to maneuverer within an air of discretion.

I would like to acknowledge the following people and organisations for the support they have provided during the ordeal me and my family have endured;

• Matt Searle – Director of Operations ‐ Missing Abroad • Nigel Mills MP ‐ Amber Valley Constituency • Liam Rhodes ‐ Case Worker Amber Valley Constituency • Aldercar Community Language College • Foreign Commonwealth Office • Dr A B Graham MB, ChB/BS ‐ GP Brooklyn Medical Practice • All the staff at Brooklyn Medical Practice • Rob Sewell – Psychologist • The Royal British Legion • Amber Valley Adult Disability Social Services Team