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Re P (Presumption of Death) [2021] EWHC 3099 (Fam)

In this very sad case, Poole J made a declaration under the Presumption of Death Act 2013 in respect of a man, P, who, together with his travelling companion, disappeared during a trip to South America in 2011. (Judgment given 12th November 2021)

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Factual background

P was born in 1972 and grew up in the south of England. As an adult he worked as cabin crew for ten years then became involved in setting up a restaurant in Barcelona. He formed a relationship with D in 2008; after she became pregnant with their child he spent most of his time with her in England although he also travelled to Barcelona in connection with the restaurant. Their son, C, was born in 2010. P was a devoted father. In April 2011 he went on holiday to South America with a friend, travelling in Peru, Colombia and Ecuador. P was in regular contact with D until, when he was in Lima, Peru, all communications abruptly ceased, the last being a text on 16th May. Neither man has been heard of since despite many efforts to find them, including by police, FCO and Peruvian authorities as well as a poster campaign in Peru.

P's father died shortly after P's disappearance. More recently his grandmother died, leaving him a bequest.

D, who was in person, had meticulously complied with the requirements of the Act. The court had witness statements from D, family members and a friend detailing the many enquiries made, not just in Peru but in the UK. Disclosure orders against bodies such as the NHS, DWP and Salvation Army, produced no trace. An advertisement directed by the court similarly produced no results.

The Application

D applied on P's behalf as his litigation friend. While anyone may apply for a declaration under the s1 of the 2013 Act, the court must refuse to hear the application if:

(a) the application is made by someone other than the missing person's spouse, civil partner, parent, child or sibling, and

(b) the court considers that the applicant does not have a sufficient interest in the determination of the application.

As P's partner rather than spouse/civil partner, D was concerned that if she applied in her own right, the court might refuse to hear the application. The court noted that it was unfortunate that as a long-term cohabitee D had to use her son as the claimant to be sure of the application being determined.

Discussion

The criteria under s1(3) of the Act were satisfied in that, on the day on which P was last known to be alive, he was domiciled in England and Wales and had been habitually resident in England and Wales for at least 12 months ending with that day.

Pursuant to s2 of the Act,

(1) On an application under section 1, the court must make the declaration if it is satisfied that the missing person—

(a) has died, or

(b) has not been known to be alive for a period of at least 7 years.

(2) It must include in the declaration a finding as to the date and time of the missing person's death.

(3) Where the court—

(a) is satisfied that the missing person has died, but

(b) is uncertain at which moment during a period the missing person died, the finding must be that the missing person is presumed to have died at the end of that period.

(4) Where the court—

(a) is satisfied that the missing person has not been known to be alive for a period of at least 7 years, but

(b) is not satisfied that the missing person has died, the finding must be that the missing person is presumed to have died at the end of the period of 7 years beginning with the day after the day on which he or she was last known to be alive.

Poole J considered whether the situation came under subsection 3 or 4. Although it is arguable that the sudden cessation of communication indicated that P had died, there is no evidence about the circumstances and a declaration that someone has died should not be made without clear evidence. Accordingly, pursuant to s2(4), the court found that P was presumed to have died at the end of the 7 years beginning with the day after the day on which he was last known to be alive.

A declaration was made that P is presumed to have died at midnight on 16th May 2016.

Case summary by Gill Honeyman, Barrister, Coram Chambers

For full case, please see BAILII