A great deal of progress has been made in the campaign for guardianship over the past several years, as detailed below.
The government launching a consultation in 2014 on guardianship provisions, which received a positive response. In view of this the government announced its intention:
“to create the status of guardianship of the property and affairs of the missing person.” Civil Justice Minister, Lord Faulks, March 2015
The roots of the campaign
The campaign for a system of guardianship is part of Missing People’s wider Missing Rights campaign, launched in December 2010, which also includes the charity's calls for presumption of death law reform. It is distinct from the latter, as guardianship would enable families to manage and maintain a missing loved one’s practical affairs in case of a return, whereas presumption of death allows them to resolve them in cases where a return is unlikely.
The campaign is grounded in our research report, 'Living in Limbo: The experiences of, and impacts on, the families of missing people', further research with families, and our day to day work with them. The charity additionally engaged connected institutions, including financial trade bodies, to ensure that their views informed the development of charity's guardianship proposals.
Exploring guardianship in Westminster
In early 2011, financial and legal issues faced by families of missing people was a focus of a meeting held by All-Party Parliamentary Group for Runaway and Missing Children and Adults. Following this, the APPG held an inquiry into support for this group, and guardianship was the theme for one of the four sessions. Following this, the Justice Select Committee then considered guardianship within its inquiry into presumption of death. Both took evidence from a range of stakeholders, and made similar recommendations to the Coalition Government around exploring guardianship:
‘The inquiry recommends that the Ministry of Justice provides a framework for consultation on… guardianship provisions, exploring the evidence base that exists in… relation to guardianship in Australia. The Inquiry recommends that this framework, along with a timetable for future action, should be in place by the end of the current session, with any resulting provisions to be implemented by the end of the current Parliament.’ APPG for Runaway and Missing Children and Adults
‘We recommend that the Government take steps to introduce provision for ‘guardianship’ orders modelled on the approach adopted by states in Australia, either via the introduction of the presumption of death legislation we have recommended, or some alternative legislative mechanism. This will protect the financial position of the missing person and his or her dependents.’ Justice Select Committee
The government responded that ‘before any final decision is reached on the need for legislation to create a status of guardian for the affairs of a missing person within England and Wales there needs to be a detailed examination of the issues involved.’
Consultation on guardianship
In June 2013, the government announced proposals to introduce a new power of guardianship, stating that ‘a consultation with detailed proposals is due to be launched later this year with a view to taking a final decision in 2014.’
“When a person disappears with no explanation, their friends and family are left with an unbelievable amount to cope with… That is why we want to put measures in place so they can make alternative arrangements for the legal and financial affairs of their missing loved one. By having guardianship powers in place in those early months we can reduce some of the burdens when people’s lives are turned upside down.” Former Justice Minister, Helen Grant MP
Missing People made a submission to the consultation, which can be found here (and its appendix here). The outcome of the consultation was positive. As mentioned already the government made a statement, which can be seen here, announcing its intention to introduce guardianship legislation following the consultation.
Recent activity in Parliament
Our Parliamentary supporters have taken part in a number of activities, including 46 signing Early Day Motions, several asking questions orally and in writing and a debate on the matter to maintain pressure on the Government. This activity has also increased media interest in the issue, such as this recent story. We worked with a number of MPs to lobby the Government to ensure that the legislation is introduced without delay, including trying to get it mentioned in the Queen's Speech and supporting Baroness Hamwee's Private Members' Bill, which was read on 14 June 2016 but has since been withdrawn due to new activity.
In January 2017 Kevin Hollinrake MP introduced a Ten Minute Rule Bill in the House of Commons. This bill successfully passed all the Commons stages in just under 11 weeks, with its Third Reading taking place on 24 March 2017. The bill then passed to the House of Lords where it experienced similar success. The bill’s passage through the legislative process has received support from all parties, as well as the Ministry of Justice:
"I can assure the House that the Government support the Bill and that we will do everything in our power to introduce those regulations, so that they can come into force as soon as practicable... I am delighted to commend the Bill to the House." Sam Gyimah MP Parliamentary Under-Secretary (Ministry of Justice)
"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... 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." The Baroness Chakrabarti CBE, Labour, Shadow Attorney General
"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." Lord Keen of Elie QC, Lords Spokesperson (Ministry of Justice)
Kevin Hollinrake MP’s Private Members Bill successfully passed its Third Reading in the House of Lords on 27 April 2017. The bill was welcomed in both Houses by all parties and passed through unamended in just over three months.
Missing People, along with the families with missing loved ones who joined the campaign, welcomed the news which will make a significant difference to the families and friends of missing people in years to come.
The law was expected to be fully enacted in May 2018, at which point it was hoped that families with a missing person could start applying for guardianship powers. However, in April 2018 delays to this timeline were announced.
Delays to Introducing the new law
Despite initial assurance that the law would be brought into force one year after Royal Assent, delays were announced in April 2018. The Ministry of Justice has suggested that the necessary secondary legislation would not be introduced until October 2018 at the earliest and possibly not until 2019.
This further delay leaves thousands of families who desperately need this legislation in limbo. People who had hoped to finally be able to manage their loved one’s affairs are forced to continue to watch their finances fall apart. Tragically in the coming months more people will go missing and new families will be faced with financial and legal hardship that they have no legal framework to manage.
The charity is campaigning with families of missing people and supporters to ensure that guardianship is reprioritised and the necessary steps to bering it into force are taken as soon as possible. You can join the campaign here.
Missing People is very grateful to Clifford Chance LLP for its pro bono support throughout the charity’s work on guardianship.