Wednesday, 21 September 2011

A Patchwork of Legislation

Nicola Sharp

I joined Missing People as Director of Policy and Advocacy in June 2011, just as the All Party Parliamentary Group (APPG) for Runaway and Missing Children and Adults embarked on its inquiry into support for families of missing people. The inquiry examined a range of issues across four oral evidence sessions, with the second session examining what ‘presumption of death’ provisions are available in England and Wales.

It came as a surprise for me to learn that we do not have a specific piece of ‘presumption of death’ legislation, unlike in Scotland and Northern Ireland where Acts were introduced in 1977 and 2009 respectively. Listening to the oral evidence given to APPG members, I was struck by how complicated the legal system is for a family who believes that their missing family member has passed away and who need this to be recognised by the courts in order to administer that person’s affairs. As things currently stand, families may have to go to court on a number of occasions to have a loved one declared dead for a variety of different purposes. Not only can this be expensive, time consuming and confusing for families, but it can exacerbate the already difficult emotional position they find themselves in.

What I also found puzzling is that each of these processes requires different standards of proof, meaning that there is the potential for a person to be treated as alive for some purposes under the common law, but dead for others by virtue of statute law. I thought that Patricia Barratt, a senior associate at Clifford Chance,  summed the current system in England and Wales up well when she said that ‘this is a confused area of law; a patchwork of statutory legislation, primary legislation, secondary legislation and probate laws mixed with common law provisions’.

Contrast this with the system that exists in Scotland, for example, where a missing person can be presumed dead during a single court appearance for all purposes, and it is not difficult to see why many of the families that Missing People supports in England and Wales perceive this to be very unfair. Moreover Missing People, like many other agencies that have contact with families when someone is missing, struggles to provide guidance and support to families in these circumstances.

Following the end of the inquiry, the APPG made a series ofrecommendations to Government about the support required by families whensomeone goes missing. Missing People was delighted to see that one of these recommendations was for the Ministry of Justice to take steps to consult on presumption of death and set out a timetable for legislative change; not least because this is something that we have been lobbying on for some time as part of our Missing Rights campaign.

This was followed, in July 2011, by more positive news – an announcement that the Justice Select Committee has decided to hold a short inquiry into presumption of death. Missing People is now working closely with families in England and Wales to submit written evidence to the inquiry which highlights the shortcomings of the current system. As part of our submission, we are keen to compare and contrast the experience of a family in England and Wales with that of a family that has used specific presumption of death legislation in Scotland. Records show that 171 people have been presumed dead since legislation was introduced in 1977. 

If you have used the Presumption of Death (1977) Act and would like to support Missing People’s work around this issue so that other families might have access to a better system, then please consider getting in contact via e-mail or telephone 020 8392 4525.

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