Missing Persons Guardianship

Julian Sturdy Excerpts

Tuesday 12th February 2019 Westminster Hall

[Jim Shannon (Strangford) (DUP)]

I thank and congratulate the hon. Member for Enfield, Southgate (Bambos Charalambous), who brought the matter forward, as well as the hon. Member for Thirsk and Malton (Kevin Hollinrake) and other Members who have attended to speak. I look forward to hearing the speeches of the shadow Minister, the hon. Member for Ashfield (Gloria De Piero), and the Minister. He is of course ably supported by his Parliamentary Private Secretary, the hon. Member for Angus (Kirstene Hair), who will keep him right—although that will not be hard to do.

The issue is important, and that is why I am here to give support. It is always good to speak on issues that affect our constituents. I am sure that I am not the only person who was touched by the Missing People choir in “Britain’s Got Talent”, when TV gave an insight into the issue. That was in 2017, which is not that long ago. As we get older, the years go by more quickly than we would ever have imagined. I admit that, like others, I shed a tear as the photos flashed up showing clearly how many people there are in this country every minute of whose days is affected by a missing person. That made it clear that there is a real issue. The pain of not knowing—rooms that remain untouched and lives that are unled—lost in the realm of waiting, is nothing short of heartbreaking. I rejoiced when I learned that one of the missing persons linked to the choir had been found. Yet that happy ending is not a normal ending in such cases; that is a fact. The 2017 Act was passed to help families and enable them to deal with financial and other issues that arise when someone has gone missing, although it will never help to ease the pain and suffering.

The Police Service of Northern Ireland has a website that displays photos of those who are missing, in an attempt to enable people to give others peace of mind. However, I believe that we must have a UK-wide national register of missing persons to provide a snapshot of live missing persons incidents across police forces throughout the UK, as a way of finding missing people if possible.

In the provincial papers back home, such as Sunday Life, there are unfortunately regular stories about people who have been missing over the years, with a renewed plea for people with evidence to come forward. It is always good to publish such information. I do not go to America every year, but I recall seeing, when I was there on holiday, that Walmart stores had pictures up of children who had gone missing. There were pictures galore on the wall—a wee timely reminder of the losses that happen. The children in those pictures are always smiling. Each missing person case is a story of loss and heartache, and the pictures resonate with everyone who looks at them.

I support legislation to make life easier for the families of missing people. I should make it clear that it is not an issue that affects only a small number of people. In the United Kingdom there is a report of someone going missing every 90 seconds, and 180,000 people are reported missing every year. There are 340,000 missing person incidents every year. Children are more likely to go missing than adults—that really creates grief and strain. One in 200 children and one in 500 adults go missing each year. Research has shown that stress is one of the most common reasons for adults to go missing. In up to eight out of 10 cases of missing adults, diagnosed or undiagnosed mental health issues are the reason. Relationship breakdown is responsible in three out of 10 cases. Dementia is another cause, in one in 10 cases. Four in every 10 people with dementia will go missing at some point. Those people do not intend to go missing, but they do. That has happened in my constituency in the past couple of years. Both people were found in time, thank goodness, and had no knowledge of where they were or recollection of how they got there.

Whatever the reason for someone going missing, the pain is the same. The Government were right to pass the legislation and now, at the close of the consultation period, it is time to implement the measure that will make so many things easier for waiting families to deal with.

[Julian Sturdy (York Outer) (Con)]

The hon. Gentleman is making a powerful argument about the ways that people go missing. Does he agree that it is positive that we are moving towards the endgame, in July, for this important Act? However, as my hon. Friend the Member for Thirsk and Malton (Kevin Hollinrake) mentioned, 2,500 people are still waiting for the measure to be implemented. A thousand people go missing every year and, as has been said, they all have families. Must we not use the debate to make sure that the timescales for implementing the Act do not slip further?

[Jim Shannon]

I agree wholeheartedly. We look to the Minister now to encapsulate our thoughts and give us reasons why we are having this debate. Now is the time. We cannot wait longer. The hon. Member for Enfield, Southgate mentioned that it is the last day of the consultation, and we look to the Minister for reassurance.

Every one of us can understand the families’ uncertainty. I agree that there must be a long waiting period before a declaration of presumed death can be made; yet there are issues that should not have to wait that long to be discharged. That is what this legislation is about, and it is on that matter that we want the Minister’s reassurance. It will be helpful if a path can be set out for family members left without the financial support they need and expected, or unpaid creditors who must turn to insolvency procedures. It will be helpful also in the case of mortgages and repossession procedures. It is relevant to problems that arise when banks and other financial institutions are unable to release the missing person’s assets, or even information about them, to those left behind. In such cases the missing person’s money can be wasted by automated payments. Direct debits go out every month with no control and cannot be stopped. The person’s assets decay for want of repair. Those things happen at the moment, and that is why the urgency of the matter cannot be emphasised enough.

There has been much consideration and the time has come to implement the law right away. Many hon. Members realise that there is a need to fill a void, and to look after those who have lost loved ones, so that they can continue their lives in a way that enables them to remember. The pain of families left behind will of course never go away, but the Act will enable us to look after them.

--- Later in debate ---

[The Parliamentary Under-Secretary of State for Justice (Edward Argar)]

It is a pleasure to serve under your chairmanship, Mr Hollobone. I congratulate the hon. Member for Enfield, Southgate (Bambos Charalambous) on securing a debate on this important subject. He and many other Members of both Houses, some of whom are here today, have campaigned long and hard for the implementation of the Guardianship (Missing Persons) Act 2017. The hon. Gentleman spoke very movingly, with his customary decency and power, on behalf of his constituent, whose brother went missing in the Galapagos.

I also pay tribute to my hon. Friend the Member for Thirsk and Malton (Kevin Hollinrake), who is my friend, for his work on and success with his private Member’s Bill. He mentioned that parliamentary time is hard to come by and that getting a private Member’s Bill through is harder still. I have to say that he has exceptional skill in doing so, having done it not once but twice. I commend any colleague wishing to succeed with a private Member’s Bill to seek his wise counsel and guidance, or indeed his golden touch, in this space.

My hon. Friend rightly highlighted not only the support for the 2017 Act across the House, but how he got it across the line just in time. I have to declare an interest: I was proud to be in the Chamber that day to hear his speech. On that occasion he highlighted the case of Claudia Lawrence, who has been missing since 2009. Her father, Peter, is here today. While tributes to colleagues are important, I must pay the greatest tribute to him for his bravery and dedication in securing action by Parliament on this important issue.

The shadow Minister, the hon. Member for Ashfield (Gloria De Piero), made a powerful speech, as ever. It is always a pleasure to work with her. As she knows, when I say that I will do something, I tend to stick to that, and I intend to do so today. I know that she, with her customary courtesy but firmness, will hold me to account on that—she has today administered polite but firm prods to Her Majesty’s Government along those lines.

I am conscious that Members are frustrated, as they have expressed courteously but clearly, that the Act has not yet come into effect. As a Member who was in the Chamber that day, I share that frustration. I am pleased to reaffirm on the record the commitment made by my ministerial colleague, Lord Keen, that the Government are determined to implement the Act in July this year. The hon. Member for Enfield, Southgate asked what will happen should there be any delays or problems. First, should there be any, I will ensure that Parliament is fully informed. However, it is my determination to make sure that there are none and that we bring the Act into operation in July.

[Julian Sturdy]

The Minister is making a genuine point, and I know from speaking to him and from asking questions of him in the House that he is determined to drive this forward. I am absolutely delighted about that, but will he give a commitment to all Members in the debate—looking around, they are the same ones who have been involved in these debates for years—that he will write to us to keep us updated and to make sure we deliver on that July timetable?

[Edward Argar]

I am very happy to give that assurance and to write to all Members who have participated in the debate, as well as to others who could not be here today but who have taken a close interest in this issue. My hon. Friend pre-empts my mentioning him, but I put on the record my appreciation and, I know, everyone else’s, for his work in furthering this important cause.

Today is a significant marker on the route to implementation, not only because of our debate, but because it is the end of the consultation period, which began on 19 December last year with the publication of our consultation paper on the implementation of the Act. While I hear the shadow Minister’s points on that, I think it was right that we consulted. We are taking a novel approach to a new area of law, and it is important that we get it right.

I emphasise that the Government recognise and fully support the need for this legislation. I think it was the hon. Member for Islwyn (Chris Evans) who put it very clearly, saying that, prior to the Act, the law and provisions in this area were essentially a bit like crazy paving. He is absolutely right. The need for the legislation was therefore clear.

We understood that several families each year had no legal process to turn to in order to resolve urgent property or financial affairs for a family member or friend who had gone missing with no evidence of what had happened to them. That was set out by the hon. Member for Enfield, Southgate and, indeed, by my friend, the hon. Member for Strangford (Jim Shannon), who set out with his customary passion, determination and detailed research the vital need for this legislation to come into force. As ever, his constituents and the House are lucky to have him.

We understand that the terrible emotional distress and anxiety that families are already going through is increased as they seek to deal with everyday financial issues regarding their missing loved one. They cannot access bank accounts, savings or property transactions to intervene as they see those financial affairs potentially spiralling out of control. The creation of the new legal status of guardian of the property and financial affairs of a missing person will provide a structured way of dealing with financial affairs and property in the missing person’s best interests, under a legal process that builds in safeguards for all involved.

The consultation paper, to which I referred, set out the Ministry of Justice’s proposals for implementation of the Act. The Government are grateful for the comments we have received—both formally, in writing, and in numerous meetings that officials have convened in the past few months with a wide range of interested parties, following the commitment in the consultation paper to engage fully with stakeholders. Of course, we must now consider the views expressed to us. We intend to do that quickly and to publish the Government’s response to the consultation in early April, setting out the detail of the proposals for implementation.

As the consultation paper set out, there are several aspects to implementation of the Act, and all of them need to be completed successfully for it to come into force and work as intended. As I have mentioned, guardianship in this context is fairly novel; indeed, it is a significant change, so it is important that we get it right, with safeguards, but also ensure that the raft of complex legal and regulatory changes work as intended.

The first aspect is developing the rules of court and related practice directions for guardianship proceedings. Guardians can be appointed only by the High Court. Their appointment will be by a court order setting out the scope of their authority in relation to the property and financial affairs of the missing person. As I have said, the court to be designated for the process is the High Court. The decision on the court was made by the Lord Chancellor, following the required statutory consultation with the Lord Chief Justice.

Our intention is that applications to the High Court for a guardianship order will be made to the chancery division or the family division. This arrangement is modelled on the Inheritance (Provision for Family and Dependants) Act 1975 and the Presumption of Death Act 2013. This approach enables many of the existing rules of court and practice directions to be followed, so guardianship proceedings can be commenced under existing part 8 of the civil procedure rules, and applications after a case has started can be made via part 23. We will decide where to draw the line between the different rules over the coming months in considering the response to the consultation. However, although we can follow precedent, we are not obliged to do so, and if there are good reasons to create a new provision to cater for a particular feature of guardianship—for example, its limited duration—we are willing to look at that.

I can give an update: the work on the draft rules of court and practice directions is progressing well and efficiently, particularly through consultation with members of the judiciary and court officials who will be handling cases. The draft rules and practice directions will of course have to be considered and approved by the Civil Procedure Rule Committee. We intend to submit the drafts to the meetings of the committee in April and May. Once the committee has signed off the rules, they will be made and laid before Parliament for approval under the negative resolution procedure. The rules will be given effect through administrative procedures that will have to be created by Her Majesty’s Courts and Tribunals Service. Work is already under way in preparation for that.

The second major aspect of implementation is the making of regulations to enable the Public Guardian to register and supervise guardians. These regulations will be made under section 58 of the Mental Capacity Act 2005. We expect that they will be similar to those applying to deputies who are appointed by the Court of Protection to manage the property and financial affairs of individuals who lack the mental capacity to do so themselves. These regulations will provide a legal framework, but the Public Guardian will also have to develop procedures to provide a supervisory and registration service. That work is also well under way, and good progress is being made.

This Act provides for the Public Guardian to establish and maintain a register of guardianship orders. The Public Guardian will also be responsible for supervision of guardians. We propose that a guardianship order will specify when the guardian is to report to the Public Guardian. The Public Guardian will deal with complaints about the conduct of guardians, including safeguarding concerns, but will also be able to offer advice and guidance, which we think will provide considerable assistance to guardians, as the equivalent advice and guidance does for deputies at the moment.

Deputies usually have to provide a security or surety bond or proof of adequate professional indemnity insurance to the Public Guardian. We anticipate that there will be similar arrangements for guardians under this Act. The Public Guardian will receive the bond and hold it against any risk of a missing person’s estate being misused and facing financial loss through the actions of the guardian.

I would like to take this opportunity to pay tribute to the Public Guardian and his office for their work to date in preparing for implementation of the Act. More broadly, ahead of his retirement later this year, I pay tribute to the Public Guardian, Alan Eccles, as an exemplary public servant who has done much to bring this issue to the fore and into greater public consciousness during his term of office.

The third aspect on which we have consulted is the fees for the new service. These are of two types. The first is court fees, and the proposal in the consultation is to adopt the existing fees in the High Court’s two divisions for the procedures concerned. This mirrors the approach taken for fees under the Presumption of Death Act 2013. The second type of fee is that levied by the Public Guardian for registration and supervision of guardians. These will be new fees, but the expectation in the consultation is that the approach will follow that taken by the Public Guardian in relation to existing fees for deputies. For both these types of fees, we expect that there will be the usual exemptions and remissions.

I have to say that this is not a simple process, because the fees are currently calculated to strike a balance between being affordable and covering the costs of operating the system. Obviously, for something new, it is difficult to estimate both what the costs will be and what the volume of cases will be, but it is important that we strike the right balance between ensuring that costs are covered and not allowing a situation whereby, in the initial months, when there may be only a few applications, people face a prohibitive fee. We need to strike an appropriate balance.

The fourth and final aspect on which we have consulted is the content of a draft code of practice offering guidance to guardians and those considering whether to make a guardianship application. The Act requires the Lord Chancellor to issue a code of practice, and we intend to do that when the Act comes into force. In drawing up the draft code, we have been at pains to make it as accessible as possible to the layperson, and it features a glossary of terms and a number of examples of scenarios that may be faced by the family and friends of missing people. However, we know from the comments that we have received that we can make further progress towards that objective.

The draft code explains key concepts underpinning the Act and goes into some detail on the broad range of duties that guardians will carry out. The aim is that it will assist guardians to understand their responsibilities and equip them to meet their duties. It also aims to explain their powers and the limitations of those powers, as well as where guardians can turn for help. Once the content of the rules and regulations has been settled in the light of the consultation responses, we will include them in the code of practice. The code will be an important resource for guardians and people dealing with them. We intend to lay a draft before Parliament at least 40 days before it is issued, but in the meantime we intend to publish a revised draft in response to the consultation.

I will now address one of the points made by the hon. Member for Islwyn—my pronunciation of the name of his constituency will get better one of these days—in respect of relationships with financial institutions, both in the lead-up to the Act and once the Act is fully in force. Financial institutions are already getting engaged with this process and getting on board with these changes. Officials are ensuring that there is strong engagement directly with financial institutions to discuss setting up new systems for the process in guardianship cases, to ensure that it is as simple and efficient as possible for those who have to go through the pain of this situation.

The designation of the High Court, which I mentioned, will require a statutory instrument.