Guardianship (Missing Persons) Bill

2nd reading (Hansard): House of Lords
Thursday 6th April 2017 Lords Chamber

Second Reading

15:12

Moved by

[Baroness Hamwee]

That the Bill be now read a second time.

[Baroness Hamwee (LD)]

My Lords, I have made space for this Bill by withdrawing the previous one. The penny dropped for me about the difficulties of a missing person’s property effectively being left ownerless when I heard the father of a woman who was missing explain the problems. He has heard me say this before, but he is a solicitor and must know how to handle bureaucracy, so this is a real problem. Peter Lawrence—that solicitor and father—is listening to today’s debates and he represents not only himself and his daughter Claudia, because the focus of the Bill is the missing person, but also the families of the many adults reported missing. There are more than 80,000 of them a year in Britain, of whom about 1,500 are missing for more than one year.

It is normal at the end of the passage of a Bill to thank those involved. I hope I am not tempting fate, but in the hope that we may find ourselves without further substantive debate I want to thank now all the families and others who have recounted their experiences, which cannot have been easy. I thank the charity Missing People, current and previous staff of which have campaigned on this issue since, I think, 2008. I declare an interest as a member of the charity’s policy and research advisory group. I thank the Minister and his predecessor, the noble Lord, Lord Faulks, and the MoJ officials who have understood the need for legislation, even if they could not do more than keep it warm for a couple of years—I particularly thank Paul Hughes there. I thank Clifford Chance, the pro bono solicitors to the charity Missing People, particularly Patricia Barratt, who drafted the Bill that I have just withdrawn, the effect of which would have been essentially the same as that of this Bill. I also thank Kevin Hollinrake, who took the Bill through the Commons.

I know that there are noble Lords who had hoped to speak today to support the Bill, but the timing has been a little awkward. In particular, I refer to the noble Lord, Lord Kirkhope of Harrogate, and my noble friend Lady Kramer, whose Presumption of Death Act 2013 dealt with another not unrelated provision.

The words of people affected by the problems that the Bill seeks to address are more effective than mine:

“When your loved one is missing you fall into a hole. There isn’t an official category for ‘missing’. Organisations don’t know what to do or how to deal with your situation”.


The creation of the new status of guardian of the property and affairs of a missing person is to fill a gap in the law of England and Wales. The guardian will be in a position not unlike a donee of a power of attorney, and the Bill draws on some of the provisions of the Mental Capacity Act. A person is missing for the purposes of the Bill if his or her whereabouts are unknown for more than 90 days—fewer in the case of urgency—or, much more unusually, if he cannot make or communicate decisions, for instance if he is held hostage or kidnapped.

The court will determine whether the applicant for an order of appointment has a sufficient interest to make the application, though certain people, including close family, have an automatic right to apply and interested persons must be notified so they can join in the application. The guardian may be the person applying; it could be an individual, a corporation or a professional person; and the guardian may be remunerated and be repaid expenses. Whoever the guardian is, there must be no conflict of interest. The appointment may be for up to four years, which is expendable, but terminates when the person returns or is declared dead. As one would expect, there are provisions for the guardian to be held to account and supervised, in this case by the Office of the Public Guardian and ultimately by the court.

What can a guardian do? Everything that the missing person has the right and power to do in relation to his property or financial affairs, subject to any limitations in the court order. He cannot make a will for the missing person or act as trustee. Again, as you would expect, it is a fiduciary position. Crucially, the appointment of the guardian must be, as I have said, in the best interests of the missing person. Clause 18 sets out how that is to be determined.

These interests will often coincide with the interests of families and, naturally, it is the experiences of that situation which are related by families. Very often, their experiences are ones which one might not have begun to imagine before beginning to think seriously about the situation. For example, a missing person’s salary is not coming in, but mortgage payments and other standing orders and direct debits go out of that person’s bank account. The bank will not make transfers between accounts to keep up the mortgage when the usual account, the usual source of the payments, is depleted. You are not entitled to sell the family home, but you may be threatened with foreclosure. Rent, if the property is rented, goes into a black hole.

And how do you deal with benefits? A mother maintains her son’s house out of her money to prevent it becoming derelict and says:

“I used to put the heating on in the winter, but I can’t afford to do that anymore”.


A sister says:

“We were stuck. We couldn’t use any of”,


my brother’s,

“money to pay his bills and at the same time we could not cancel his bills”.

All the people whose experiences have been related to me by the organisation Missing People have said that guardianship would be an enormous help and would mean that the person’s affairs could be dealt with.

Financial institutions can take instructions only from the signatory to a bank account, and so on. Many will not give families information, because of “data protection”—I put that in quotes, because that is how it is put. Some simply do not know what to do; some will not even take phone calls; some will not take phone calls but are rather quick on the draw when the money in the account runs out. One person said:

“one day I received a telephone call from the bank to say his account was overdrawn and what did I plan to do about it. I was so angry. I had contacted them so many times to try and sort the situation out but they wouldn’t engage with me”.

The Council of Mortgage Lenders and—from memory, so I hope I am not wrong in this—the British Bankers’ Association support the legislation, as it will provide clarity and protection for businesses and institutions which hold the assets of a missing person. The Association of British Insurers has also said that its members would welcome guidance because of data protection issues.

The Government consulted in 2014 on proposals for creating this new legal status. According to the MoJ, the response was “overwhelmingly positive” to the principle and to the proposals for implementation. Because the Government had not found an opportunity to introduce legislation, I introduced a Private Member’s Bill at the start of this Session. We now have this Bill, which has come through the Commons, piloted by Kevin Hollinrake, and I am delighted that a slot has been found as we come towards the end of the Session. The Bill reflects the proposals in the consultation to which I have referred.

Once you see the practical impact of the current legal position, you begin to understand the emotional effect. “I went overnight”, a wife explains,

“from being a couple and having two wages to … becoming a single mum who could only work part time, with a mortgage and bills to pay. … my husband was missing, and that in itself was traumatic enough, but there was still the everyday living to do as well”.

We legislators can at least help with the everyday living. I beg to move.

15:22

[Baroness Chakrabarti (Lab)]

My Lords, what a privilege to follow the hard work and moving speech of the noble Baroness, Lady Hamwee. We on these Benches are more than happy to support the Bill at its Second Reading. It provides a much-needed remedy to the sometimes devastating financial and legal problems faced by the families of missing persons as a result of a gap in the law, which has remained unfilled for far too long.

As we have heard, each year more than 80,000 adults are reported missing to British police forces. Mercifully, most are found safe and well within the first week but around 4,000 remain missing for more than seven days and up to 1,500 adults are missing for longer than a year.

For the families left in limbo, the pain of not knowing where their loved one is or what has happened to them is compounded by a range of serious practical, financial and legal difficulties as the result of a disappearance. The vanishing of the individual has no legal impact on the person’s obligations and commitments. As a result, their affairs may be unmanaged and unprotected for the duration of their absence. Without a court mandate, institutions such as banks or insurance agencies are limited in how they can deal with those left behind. This can have disastrous repercussions, particularly for those who have shared assets or liabilities with the missing person, or for those financially dependent on them.

The creation of a new legal status of guardian of the property and affairs of the missing person would mean that families had an alternative and more immediate recourse when seeking to protect the financial and legal interests of their loved one. Under current law, in the Presumption of Death Act 2013, family members must wait a minimum of seven years before application can be made for a declaration that a missing person is presumed dead and their property can pass to others. Under the Bill, applications can be made after 90 days following a disappearance, and the court would be able to tailor the terms of the appointment of a guardian to the circumstances of the missing individual.

The charity Missing People has been campaigning to fill the gap for nearly six years, launching its Missing Rights campaign in 2011. Your Lordships will remember that, following calls for reform, the coalition Government launched a consultation in 2014, and in 2015 confirmed that they would legislate to create a new legal status of “guardian of the property and affairs of a missing person”. Despite a Written Statement from the then Justice Minister, the noble Lord, Lord Faulks, in which he expressed his hope that legislation would be brought forward without delay in the new Parliament, it failed to materialise. Today, however, by means of this Private Member’s Bill and through the admirable hard work of Kevin Hollinrake MP in the House of Commons and the noble Baroness, Lady Hamwee, resolution for families left behind is finally in sight. We owe a substantial debt of gratitude to both parliamentarians.

This much-needed legislation would plug a legal lacuna that has been acknowledged by the previous Government, the present Ministry of Justice and, as of late March, honourable Members in the other place. Support for the Bill in its current form has also been expressed by a variety of stakeholders including the charities Missing People, Prisoners Abroad, Hostage UK and the Council of Mortgage Lenders.

As my colleague in the other place, Richard Burgon, said at the first sitting of Committee on the Bill:

“We must not drag our heels”,—[Official Report, Commons, Guardianship (Missing Persons) Bill Committee, 21/2/17; col. 5.]


when there is political consensus on the need for and appropriateness of this legislation. So I urge your Lordships to lend support to this fine Bill and to help ease at least the practical burdens—if not, unfortunately, the ongoing emotional suffering—of those families who continue to wait for news of a loved one or their return.

Finally, if I may, I thank all of your Lordships for your company and courtesy, and for the enormous contribution that you have made to the life of this country in recent weeks and months. I wish you all a very happy Easter with your own families.

15:26

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I add my congratulations to the noble Baroness, Lady Hamwee, on introducing this Bill. The Bill is similar in content and purpose to the Missing Persons Guardianship Bill, which she introduced in June 2016. I am grateful to her for withdrawing her Bill and taking on the present Bill, which is supported by the Government. It will create a new legal status of guardian of the property and financial affairs of a missing person.

The proposals now in the Bill have taken some time to evolve and have been developed in the light of views expressed from several sources over time. First, the All-Party Parliamentary Group for Runaway and Missing Children and Adults called for legislation in 2011, and the Justice Select Committee recommended guardianship legislation in its Presumption of Death report in 2012. These calls were supported during the passage of the Bill that became the Presumption of Death Act 2013. This parliamentary activity was supplemented by a public consultation on proposals for a scheme of guardianship by the Ministry of Justice in 2014. The response to that consultation, as already indicated by the noble Baroness, was overwhelmingly supportive.

Before commenting on the content of the Bill that has emerged from this extended period of development, I too acknowledge the work of the campaigners within and outside Parliament for the introduction of this guardianship Bill. I will not detain your Lordships with a lengthy list but in addition to the noble Baroness, Lady Hamwee, I would mention the noble Baroness, Lady Kramer, who introduced a Bill in similar terms to that of her noble friend Lady Hamwee, and my noble friend Lord Boswell, who promoted a Presumption of Death Bill in 2009 that started the train of legislation that we carry forward today. I also acknowledge the work of the Justice Committee in the other place and, outside Parliament, the campaigning of the charity Missing People, along with the help that it and we have received from Clifford Chance LLP in acting as pro bono lawyers to that charity.

Missing People and the charities Hostage UK and Prisoners Abroad, which have also supported the preparation of the Bill, bring together and give voice to the experiences of the individuals and families caught up in disappearances, as referred to by the noble Baroness, Lady Hamwee. I am grateful to all those who have contributed to their work and in particular to Claudia Lawrence’s father, Peter Lawrence, who I understand is here. He has campaigned to create a practical legal remedy for the benefit of all people caught up in the property and financial effects of disappearances.

I now turn briefly to the substance of the Bill. The Bill is necessary because, although the law assumes that a missing person is alive until the contrary is proved, the missing person’s property is effectively left ownerless while he or she is missing. No one has legal authority to protect it or to use it on their behalf. This can lead to practical and financial problems for the missing person, his or her family and others.

At present, people simply have to find ways to get by. Unlike situations where it is thought the missing person has died, there is no legal framework to assist the individuals caught up in the difficult consequences of a disappearance. The experiences of those left behind demonstrate that there is a gap in the law and that suitable advice is difficult to find. Families may be hit hardest, but banks and other institutions have to deal with cases of disappearance on an ad hoc basis, increasing uncertainty and risk.

Other approaches to reform would have been possible, but the creation of a new status of guardian of the property and affairs of a missing person is intended to fill the gap in the law in a way that will provide an accessible and readily understandable legal solution, while still protecting the interests of the missing person.

The first and foremost protection is that guardians will be appointed only by the court. The court must be satisfied that the person to be appointed is suitable to act as guardian and will act in the best interests of the missing person. The court will be either the High Court or the Court of Protection, and the Lord Chancellor will make this choice after consulting the Lord Chief Justice. The court will be able to impose conditions and restrictions in the terms of the appointment, including restricting the length of the appointment to less than the maximum four years permitted by the Bill. The court also has power to vary and revoke appointments.

The Bill also provides that interested parties will be able to hold guardians to account by court action and that guardians will be supervised by the Office of the Public Guardian, which will maintain a register of appointments and deal with complaints about the way a guardian is exercising his or her authority.

In this last respect and in a number of other places, the proposals in the Bill broadly follow the model of the provisions governing the appointment of deputies in the Mental Capacity Act 2005. The guardian will, for example, be the agent of the missing person, in much the same way as the deputy is the agent of the patient under the Mental Capacity Act 2005. Third parties, such as banks and other financial institutions, will be protected in their dealings with guardians in much the same way as they are when they deal with people acting under powers of attorney. Most importantly, they will be able to see the extent of the guardian’s authority to act on the face of the guardianship order made by the court and will be able to rely on it.

Some of the detail of the scheme of guardianship will be set out in rules of court, regulations and statutory guidance. To allow these to be drawn up and for potential users to familiarise themselves with them, the Bill is unlikely to come into force earlier than one year after Royal Assent, but the Government will endeavour to keep any delay to an absolute minimum.

The Government are committed to helping those left behind by the traumatic and disruptive event that is the disappearance of a family member. The number of cases in which the remedy will be used may not be huge, but the effect of each of those disappearances on those caught up in them can be severe and traumatic. The creation of the new legal status of guardian of the property and financial affairs of a missing person will not solve every problem created by a disappearance, but it should provide an effective, practical and relatively straightforward remedy to some at least of the practical problems that are created in these circumstances. There is, of course, concern about the risk of abuse of authority that can never be completely eliminated, but the Government believe that the provisions in the Bill strike an appropriate balance between giving the guardian the freedom to act to do good on the one hand and protecting the interests of the missing person on the other.

I commend the Bill to the House.

15:34

[Baroness Hamwee]

My Lords, I am grateful to the noble and learned Lord and the noble Baroness. The hard work is done outside this place by officials and campaigners. In this situation, campaigners are not just people who stand up and shout; they provide material on which we can work.

The noble and learned Lord answered a question which I thought it might seem a little grudging to ask, which was how soon the Bill might come into effect. I am glad to hear what he said.

I thank everyone for being so positive about what is a very negative experience for those whom we are trying to assist. I hope that the House will give the Bill a Second Reading.

Bill read a second time and committed to a Committee of the Whole House.