Legal Guardianship and Missing People

Dominic Raab Excerpts

Wednesday 23rd March 2016 Westminster Hall

[The Parliamentary Under-Secretary of State for Justice (Mr Dominic Raab)]

It is an honour to serve under your chairmanship, Mr Gray. May I start by expressing, on behalf of the Government and, I am sure, the whole House, our condolences to the people of Belgium? It goes without saying that we stand shoulder to shoulder with them at this very difficult time.

I congratulate my hon. Friend the Member for York Outer (Julian Sturdy) on securing the debate. I am grateful for the opportunity to respond on behalf of the Government on this important issue. It is a technical issue when it comes to how we respond and reform the system, but one of heartfelt agony for the families who have to endure the predicament that my hon. Friend expressed so eloquently.

With that in mind, I pay tribute to those who have done so much to put and keep the subject on the agenda. They include, in the House, the all-party group on runaway and missing children and adults, and the Justice Committee, which has called for reforms consistently in 2011 and 2012; and the charity Missing People, which has steadfastly campaigned on behalf of missing people and their families. I personally acknowledge the deep heartache of the many families involved, which lies beneath the technical details of the proposals that I will outline. It would be remiss of me to pass up the opportunity to pay particular tribute to Peter Lawrence and his family, who are constituents of my hon. Friend. I know that Mr Lawrence is here today, and I extend that recognition and tribute to him and his family.

Claudia Lawrence has now been missing for seven years, and I am pained every time I see or read about the case. I can only imagine how difficult it must be for her family and, of course, for others in the same position. I know that my hon. Friend and Mr Lawrence will be disappointed that we have not legislated sooner. I acknowledge that. All I can say is that we will do everything we can to progress the proposals into legislation. I am inspired by the example that Mr Lawrence and my hon. Friend have set in that regard. It is important, and I give an undertaking, to keep the case of Claudia and the many others like her whom I have learned about—and the human toll of those cases—at the forefront of my mind as we take forward the technical legal proposals.

At present, as has been recognised, the common law rather pragmatically assumes that a person is alive until proven dead. It can therefore be slow to enable control of a person’s property and affairs to be given up to another person following an unexplained disappearance. The truth is that that gives us all a degree of protection, but it also means that when a person disappears with no explanation, their friends and family are left to face the practical difficulties of protecting the interests of the missing person and carrying on with their lives, on top of the deep emotional and personal shock and the challenge of coping without that person at the heart of their lives.

Those left behind may have access to funds, perhaps in a joint account that was previously controlled by the missing person. However, without the good will of third parties, the chances are that they will not have access to, or the ability to control, the missing person’s assets, whether in cash or in kind. They may find themselves effectively in a legal vacuum or void. In practical terms, that may mean being unable to adjust standing orders with a bank, or something as simple as that. It may mean being unable to ensure proper care for dependants, or it may create complications for businesses that have to get on with their daily and monthly work. Joint mortgages may be rendered, in practice, effectively unmanageable. Lots of basic daily things become increasingly difficult to keep a handle on and to keep control of in such a legal vacuum.

[Christina Rees (Neath) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Gray. I congratulate the hon. Member for York Outer (Julian Sturdy) on securing the debate. The Opposition wholeheartedly support the campaign by Mr Lawrence and Missing People. I have been through this myself. My uncle disappeared many years ago. He just walked out of our lives, and to this day we do not know what happened to him, which has made it very, very difficult to handle matters. This debate is close to my heart. I urge the Minister to proceed with the proposals as soon as possible and end the heartache.

I cannot imagine what you have been through, Mr Lawrence. My heartache pales into insignificance compared with yours.

[Mr Raab]

I thank the hon. Lady for sharing her personal insight and for her expression of cross-party support for the proposals, which certainly helps. The Government acknowledge the very real predicament of families such as the Lawrence family.

[Chris Evans]

I have known the Minister a long time, and he will focus on this like a laser beam. When I was campaigning for a presumption of death Act back in 2011, Missing People said that the law is like crazy paving—that was the best way of describing it. There is no certainty, and people are looking to the Government for some form of certainty. I look for that assurance today.

[Mr Raab]

The hon. Gentleman has highlighted the problem with which we are grappling. I understand that people want to hear assurances today, and I will do my level best. Of course, we acknowledge people’s predicament, and we want to do everything we can to help the families of missing people address the administrative problems that can make life even more piercingly difficult at such a traumatic time. It is estimated that there are a significant number of cases of disappearance each year in which there are sufficiently serious problems to make the appointment of a guardian a worthwhile option to have on the legislative table, so to speak.

The coalition Government consulted on the proposals to create a status of guardianship, and the response was published shortly before the 2015 general election. I reassure all Members that the Government are committed to pursuing the measure and getting it into law.

[Kevin Hollinrake (Thirsk and Malton) (Con)]

Will the Minister give way?

[Mr Raab]

I will give way briefly, and then I need to make some progress.

[Kevin Hollinrake]

I am grateful to the Minister. I congratulate my hon. Friend the Member for York Outer (Julian Sturdy) on securing this important debate. I understand that some 2,500 people could be helped by the proposals. I pay tribute to Mr and Mrs Lawrence—Mrs Lawrence is a constituent of mine. They have kept hope alive for Claudia and they hope to help thousands of other people, and today they are hoping for a clear timetable. I know it is a question of finding time, but it is now time to make time for Claudia’s law.

[Mr Raab]

My hon. Friend has been a steadfast campaigner for this reform, and it is because of efforts such as his and those of my hon. Friend the Member for York Outer that I believe we will be able to make progress.

I have mentioned the Government response to the consultation proposals, and the Government are committed to pursuing the measure. It is not, however, solely about creating a new status in law. We also need to be sure that, when the new system is introduced, there is a judicial and supervisory structure to support it. Putting someone in control of another person’s property is a significant and sensitive legal step that is not to be taken lightly. I am sure there is acknowledgment on both sides of the House that we need to get the detail of the proposals right, accurate and tailored in the right way to protect the interests of those directly affected—the families, first and foremost—and to preserve the integrity of the law as a whole. We need a framework in which the interests of the missing person, the families left behind and the third parties who deal with them are correctly calibrated and balanced.

It is wrong to say that progress has not been made. We are making progress, and I will briefly outline some of the key features of the proposed scheme on which we are actively working. First, guardians would be required to act in the best interests of the missing person. In that respect, there would be fiduciary-style duties. Secondly, guardians would be supervised by the Office of the Public Guardian and required to file accounts in much the same way as a deputy appointed under the Mental Capacity Act 2005.

Thirdly, guardians would be appointed by a court on application by a person with a sufficient interest. That is important, because the appointment may be general, in which case the guardian would be able to do what the missing person could have done—they would effectively have a free hand, for want of a better technical term—or it could be limited in certain respects. It is right to have those options on the table.

Fourthly, anyone should be able to apply for appointment as a guardian, provided that he or she has a sufficient interest, which obviously would need to be carefully defined. We are looking carefully at that. We would also need to make sure that their interests did not conflict with those of the missing person. I suspect that we would envisage close family members, or professionals such as a solicitor or an accountant with the requisite familial support, being able to apply.

Fifthly, we envisage that a person should have been missing for a period of, say, at least 90 days before such an application could be made. I am interested in other thoughts on that, but we think 90 days is probably a broadly reasonable period. Finally, the appointment of a guardian should be for a period of up to four years, with the possibility of applying for an extension of another four years. That is a significant period but, ultimately, it would be a temporary provision.

There is obviously a lot of technical detail buttressing the bones of the proposals, and we will need to define in further detail the scope of the guardian’s responsibility, the imposition of appropriate duties on him or her, and the appropriate court procedures for the appointment of the guardian and for redress if the guardian’s conduct falls short of the required standards. There will need to be an adequate supervisory regime over the whole structure, capable of commanding public confidence as well as the confidence and buy-in of the families affected.

As has already been mentioned, there are precedents for such a status and model in legislation in other countries, including in Canada and Australia. Ireland is also currently considering legislation in this field, and we are carefully considering the different models on offer. Obviously, we want to tailor the proposals to ensure that we have the right regime for the legal system, the particular nature of the problems and the administrative aspects in this country. Our development and drafting work is not yet complete, but we are working to complete it as soon as practicable. Given the details that I have talked about, it is important to get it right. We are consulting parliamentary counsel, and we would not go down to that level of detail unless we were serious. I hope that gives some reassurance to hon. Members on both sides of the House, and particularly to the campaigners and the Lawrence family.

We understand the importance of completing the legislation and getting it right, and it is worth saying that guardianship status is not the only measure that we are proposing to help those affected by the disappearance of an individual who is close to them. The Government are also reviewing the missing children and adults strategy, which was originally published in 2011. We are engaging with stakeholders, including Missing People, to update the guidance on cases of children and adults who go missing. That updated strategy will be published later this year and will include measures to help prevent people from going missing in the first place and to improve the response of all the relevant agencies.

Although I am sorry to disappoint anyone here today, I cannot give a specific date that is firmly etched in stone for introducing the legislation. I hope my hon. Friend the Member for York Outer and the whole House will recognise that the Government are committed to delivering the reform and are actively working to that end. It is vital to get the reform right, given that it creates a legal power over another’s assets. We are committed to proceeding as swiftly as we can, never forgetting for a moment the scope that it offers to ease, if only by a modest degree, the pain and suffering endured by the families who have lost loved ones.

Question put and agreed to.