Missing Persons Guardianship

Gregory Campbell Excerpts

Tuesday 12th February 2019 Westminster Hall

[Bambos Charalambous (Enfield, Southgate) (Lab)]

I beg to move,

That this House has considered missing persons guardianship.

It is a pleasure to serve under your chairmanship, Mr Hollobone.

Imagine that someone you love went missing out of the blue. Try to imagine the anxiety, the shock and the sadness, and then imagine not being able to sort out any of their affairs in their absence. That frustration, confusion and hurt is exactly what my constituent experienced.

My constituent came to my surgery in May last year to tell me about her missing brother. She told me that he was an experienced traveller who was used to travelling alone. He had gone to visit the Galapagos islands, and it was from there that he vanished. He was last sighted on 11 March 2017 and never returned to his hotel room. He was a keen photographer, and his last photograph was taken on the island of San Cristóbal. Despite extensive searches on the islands, he was never found. My constituent was very close to her brother, who would contact her regularly when he was abroad, so when she had no contact with him for more than 10 days, she suspected that he was dead. No body was ever recovered.

After the shock and grief of her brother’s disappearance, my constituent set about trying to manage his affairs, but she came across a number of problems. She discovered that banks and other financial institutions would not directly engage with her, as she could not prove that her brother was dead. During that time, mortgage payments and utility bills went unpaid, and direct debits continued to be withdrawn from her brother’s bank account. She found the situation incredibly frustrating, and it caused her even more anguish after she had just come to terms with the fact that her brother was missing and, in all likelihood, dead.

Shocked by my constituent’s experience, I told her that Parliament must legislate to stop it happening again. Imagine how disturbed I was when she told me that Parliament had already done so. I promised to look into the matter further, and I was staggered to discover that the Guardianship (Missing Persons) Act 2017, which dealt with my constituent’s exact circumstances, had received Royal Assent on 27 April 2017 but had not yet been implemented.

With time against her and options running out, my constituent was forced to go down the presumption of death route to get an order allowing her to deal with her brother’s affairs. However, although she applied for a presumption of death order, she was not certain to get one, due to the provisions of the Presumption of Death Act 2013. That Act makes it clear that if the missing person has not been missing for seven years, the court has to be convinced that they are dead. If it is not, it can refuse to make an order. That is the route the family of Lord Lucan had to go down 42 years after his disappearance, with no body ever having been recovered. They were easily able to satisfy the Act’s seven-year threshold, whereas my constituent could not. Although she was ultimately successful, she should not have had to go down that route for her brother, who had been missing for just over a year, when there was a more straightforward alternative.

The charity Missing People estimates that more than 1,000 people go missing for more than 12 months in the UK each year. The families of those who go missing suffer the distress and anguish of not knowing what has happened to their loved one, which is compounded by the powerlessness of not being able to manage their affairs. Family members have to make futile telephone calls to banks, building societies and utility companies, which will not co-operate with them due to fears of data protection breaches and fraud.

All the while, arrears accrue. If things escalate, the family may have to deal with bailiffs and lawyers to stop their loved one’s home being repossessed. They will also be unable to stop direct debits from draining that person’s account. If it is a joint account, that makes matters even worse, since financial institutions often insist on getting both parties’ express consent to change anything. Financial institutions are among the strongest supporters of the 2017 Act, as it is their staff who are forced to say no to the families of loved ones. An order declaring that someone has a right to deal with their loved one’s affairs makes it far easier for all concerned and removes the additional stress and worry from the equation.

At an event organised by Missing People, I had the privilege of meeting Mr Peter Lawrence, the father of missing person Claudia Lawrence. He told me about the challenges he faced in dealing with financial institutions in the aftermath of his daughter’s disappearance. I am pleased to say that Peter is here with us today. Peter is a remarkable man, and I have nothing but admiration for his ongoing efforts to reform the law. It was partly due to his campaigning and raising of public awareness that the Government eventually decided to legislate for the guardianship of missing persons.

In preparation for the debate, I read transcripts of previous debates about guardianship for missing persons. I note with some disappointment that the very same points I have made so far today were made by the hon. Members for York Outer (Julian Sturdy) and for Thirsk and Malton (Kevin Hollinrake) and my hon. Friend the Member for Islwyn (Chris Evans) in March 2016. In that debate, there was criticism of the Government’s failure to progress legislation they had consulted on in 2015. The Minister closed his remarks by saying:

“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…the pain and suffering endured by the families who have lost loved ones.”—[Official Report, 23 March 2016; Vol. 607, c. 596WH.]

I am sure that that debate had a bearing on what happened next, as a year later the Guardianship (Missing Persons) Bill had been drafted and was making progress. On 6 April 2017, when that Bill had its Second Reading in the other place, the Minister said that it

“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.”—[Official Report, House of Lords, 6 April 2017; Vol. 762, c. 1188.]

The Bill passed all its stages and received Royal Assent on 27 April 2017.

The 2017 Act is a good piece of legislation. It defines what guardianship orders are and who can apply for them and in what circumstances. It covers the scope of the orders and their duration, and provides for their revocation. It was supported in Committee by all political parties. It was one of those rare pieces of legislation that transcended party politics and had genuine cross-party support. At a time of division in the country, it was something that everyone could sign up to. Unfortunately, since then, there have been a number of false dawns and dashed hopes with respect to when the Act will finally be fully implemented and when people will be able to use it. Some 21 months have passed since the Act received Royal Assent, and it has not been possible to apply for a single guardianship order.

I accept that there may be complications with getting the judiciary to familiarise themselves fully with the provisions of the Act, and no doubt some technical measures need to be properly scrutinised and overcome. I also appreciate that Brexit continues to take up significant time in Departments and that the Ministry of Justice, which has had significant cuts to its budget over a number of years, is probably very stretched. I cast no blame on the Minister, whom I have always found to be true to his word and helpful in my dealings with him. But the fact remains that the current state of affairs just is not good enough.

Since the 2017 Act received Royal Assent, the Ministry of Justice has introduced two more Bills to Parliament, both of which have passed all their stages and are now Acts—the Civil Liability Act 2018 and the Courts and Tribunals (Judiciary and Functions of Staff) Act 2018 both received Royal Assent on 20 December. I do not suggest for one minute that those are not important pieces of legislation, but I am concerned that they managed to leapfrog the 2017 Act and will in all likelihood be implemented before it. How is that possible? I suggest that the 2017 Act has not received the priority it deserves. Time and again, it has been put to the bottom of the pile while other things have taken precedence.

In my first and only question to the Prime Minister, on 28 November 2018, I asked about that delay. I am relieved that, since then, things have started moving. On 19 December 2018 the Ministry of Justice launched its consultation on the implementation of the Guardianship (Missing Persons) Act 2017, which among other things covers the code of practice, rules of court, practice directions, the registration and supervision of guardians, and fees—I note that, by some strange coincidence, that consultation ends today.

I have received assurances from the Ministry of Justice that the 2017 Act will be implemented fully by July 2019, but that is still five months away, and although I very much welcome that commitment, I am concerned to avoid further delays. I therefore ask the Minister to give a commitment that the Act will be implemented by July this year, and that if there is any delay, he will explain the reasons for it and allow hon. Members to question him.

[Mr Gregory Campbell (East Londonderry) (DUP)]

I congratulate the hon. Gentleman on securing this timely debate on an emotive subject, which he is dealing with properly and appropriately. Does he agree that, in advance of the legislative change in July, there will be an expectation—hopefully as a result of this debate and other pressures—that financial institutions will consider these matters practically and sensibly when dealing with families?

[Bambos Charalambous]

I entirely agree, and one of the biggest areas of distress for people is dealing with financial institutions. If measures can be introduced to enable things to run more smoothly, I would strongly support that, as, I hope, would the Minister.