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A v H (Presumption of Death) [2016] EWHC 762 (Fam)

A short judgment allowing an application for a declaration under the Presumption of Death Act 2013, in tragic circumstances, that the respondent wife was either dead or had not been known to be alive for a period of at least 7 years.

The parties married in Somalia in 1983 and had a son in 1984. The family fled the civil war in their country to a refugee camp in Djibouti with terrible living conditions. The husband left the wife with all the money he had and came to the UK in 1998. He was granted refugee status. He was subsequently granted full citizenship.

He had tried to find his wife and son on three occasions, sending money and correspondence with people travelling to Djibouti. He was not permitted a visa to travel to the area himself, although managed to travel to Yemen in 2001. Nobody had any information post-1998, when the husband had last seen them. The likelihood was that they had attempted to escape the conditions in Djibouti by trying to cross the sea to Yemen.

The husband now sought to remarry and so made an application under the Presumption of Death Act 2013. The matter came before Mr Justice Peter Jackson, who set out the relevant legislative provisions under the 2013 Act and PD57B of the CPR 1998. In paragraph 15 of the judgment he summarised the criteria the husband must satisfy: (a) that he had standing as the spouse to make the application (he did); (b) that he had been habitually resident in the UK for at least a year (he had); (c) that he had taken all possible steps to trace the wife and advertise the proceedings (he had even placed an advert in a newspaper in Djibouti); and (d) that the wife had died, or had not been known to be alive for at least 7 years (that was, on the facts, found to be the case).

What is notable about the judgment is that the husband had little to no documentary evidence of the historic facts he asserted to be true. It is not specified whether the judge heard oral evidence, or simply read the husband's witness statement, but he was satisfied that he could make findings as to the facts (e.g. date of marriage, the date on which the husband last saw the wife etc.) which enabled him to make the declarations sought.

Therefore, having complied with all the steps of the Practice Direction, the judge made a declaration that the wife was presumed to have died on 30 January 2005 – namely, the last day of the seventh year from 31 January 2008 (the date when the husband had last seen her).

Summary by Thomas Dance, barrister, 1 King's Bench Walk

Neutral Citation Number: [2016] EWHC 762 (Fam)
Case No. FD16F00018


Royal Courts of Justice
Strand, WC2A 2LL

Date: Tuesday, 22nd March 2016


(In Public)

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B E T W E E N :

A Claimant
-  and  -
H Defendant
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MR. S. BARTLET-JONES (instructed by Wilsons Solicitors LLP) appeared on behalf of the Claimant.
THE DEFENDANT did not attend and was not represented.
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J U D G M E N T  (Approved)

This judgment can be published in this form provided that the individuals concerned are not identified.  All persons, including representatives of the media, must ensure that this condition is strictly complied with.  Failure to do so will be a contempt of court.

1.  By a claim issued on 16th February 2016, the claimant, Mr. FA, seeks a declaration under the Presumption of Death Act 2013 in relation to the defendant Mrs. SH, his wife.  Mr. A claims that Mrs. H has either died or, alternatively, has not been known to be alive for a period of at least seven years.  
2. The history as described in the statement of Mr. A, also supported by documents that he has presented, is a sad one.  
3. He and Mrs. H originate in Somalia.  They married in Mogadishu in 1983.  Because of the nature of the civil society in that part of the world Mr. A is unable to provide the court either with his own birth certificate or his marriage certificate, but in my view there is no reason to doubt what he says.  
4. Following the marriage the couple had a son, A, in 1984.  The family was unfortunate to find itself in the middle of one of the worst civil wars that can be imagined, a result of which they became refugees.  Mrs. H fled from Somalia, with her mother and child, to Djibouti and ended up living in terrible conditions in a refugee camp. 

5. In order to try to rescue the situation, Mr. A describes leaving his wife and child with such money as he had before then making his own way to this country, arriving in January 1998.
6. He was granted refugee status in September 1998.  He has subsequently become a British citizen, living and working in this country. 
7. Once Mr. A had secured his own situation, his first thought was to rescue his wife and son.  But he found great difficulty.  He says that he has sent money and correspondence with people travelling to the area on three occasions: on two occasions he heard nothing; the correspondence and money was returned to him on the third occasion.  He tried to travel to the area himself but could not get a visa.  He tried to get in touch via the community networks that existed, and still exist. 
8. He eventually succeeded in travelling to Yemen in 2001, during which he also visited Aden and Sana'a in search of his family, but nobody had heard of them. 
9. The best information that he has gathered is that they may have attempted to cross from Djibouti to Yemen by sea in order to escape the conditions in the Horn of Africa.  But there is no record of them having arrived either in Aden or Yemen.  Mr. A testifies that they have not been heard of by anyone since he last saw them in 1998.
10. The chairman of the Somali Banadir Association in the United Kingdom has written to the UK Border Agency confirming the community's understanding of Mr. A's situation. 
11. Having studied the material provided by Mr. A, again I see no reason at all to doubt what he says about the past events and the terrible effect that it has had upon him.
12. The matter now comes before the court because, after these very difficult circumstances, Mr. A has now been able to rebuild his life to some extent at a personal level, and has recently (in 2014) been able to marry again.  His wife and her child live outside the United Kingdom.  He wishes to have the opportunity to bring them here in due course.  That application cannot go forward without there being some clarity regarding past events.  Therefore, Mr. A has placed his situation before this court as a matter of some urgency.
13. I am grateful to Mr. Bartlet-Jones (who represents Mr. A) for his very clear skeleton argument, which has enabled me to navigate the legislative requirements quite simply.  
14. The key provisions in a case of this sort are the 2013 Act and Practice Direction 57B to the Civil Procedure Rules 1998. 
15. In summary, Mr. A must satisfy the court either that Mrs. H has died or that she has not been known to be alive for a period of at least seven years.  He must demonstrate that he has standing to make the application as being Mrs. H's spouse and that he has been habitually resident in this jurisdiction for at least a year or that he is domiciled here.  He must show that he has taken all possible steps to trace Mrs. H, to advertise the proceedings and communicate with her family. 
16. I am satisfied on the evidence in this case that Mrs. H has not been known to be alive for a period of at least seven years.  On the information that has been provided, it is also more than likely that she has indeed died.  The unavoidable circumstances in which she was left, together with the fact that she has not been heard of through any of the community networks, strongly suggests that she is no longer alive.
17. I think it is probably safer to make the necessary declaration on the basis that she is not known to have been alive.  I say that only because there is no particular incident (as there sometimes is) where people are specifically known to have perished as part of a group that is likely to have included the individual person. 

18. I am satisfied that Mr. A is habitually resident in England and Wales (as the Act requires) -- he has been here since 1998; that Mrs. H was the spouse of Mr. A; that they were married (also as to the reasons why a certificate is not available); and that, insofar as he has personally been able, Mr. A has done everything he possibly could have done to trace his family by his own means. 
19. As to the "notification of interested parties", there are no other known family members apart from Mrs. H herself and the child.  Nevertheless, in order to advance these proceedings, Mr. A has recently advertised in the newspaper circulating in Djibouti (La Nation) and received no response.  The details of the advertisements (including payment for them) are contained in the papers. 
20. Therefore, I consider that the steps required by the Practice Direction for allowing interested persons to make contact and express a wish to be heard have been met. 
21. It is not of great significance to Mr. A, or to anybody else, as there are no property rights at stake in this case, but a finding as to the date of presumed death must be made.  In accordance with the Act, I will calculate that on the basis of the finding that Mrs. H has not been known to been alive for a period of at least seven years. 

22. In consequence, the appropriate time and date is midnight on 30th January 2005, being the last day of the seventh year from, and including, 31st January 1998 (that being the last month in which Mr. A saw his wife).  
23. I will therefore make an order -- which I request that Mr. Bartlet-Jones be kind enough to submit in draft -- which will record that the declaration contained herein is conclusive of Mrs. H's presumed the date and time of her death.  As of 12th April 2015 (unless an appeal is lodged by that date) I will declare that Mrs. H is presumed to have died on 30th January 2005.