Re P (Presumption of Death)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Poole |
| Judgment Date | 19 November 2021 |
| Neutral Citation | [2021] EWHC 3099 (Fam) |
| Court | Family Division |
[2021] EWHC 3099 (Fam)
Mr Justice Poole
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
D in person as Litigation Friend for the Applicant
November 2021
On 12 November 2021 I heard from D who acts as Litigation Friend for her son, C, in a claim for a declaration under the Presumption of Death Act 2013 that her son's father, P, is presumed to be dead. This judgment sets out the reasons why I have made the declaration sought.
D and P were partners who co-habited and had a child, C, together but they never married or entered into a civil partnership. P was born on 9 March 1972 in Surrey but spent his childhood in Kent. On leaving school he had a series of jobs and then worked for a major airline as cabin crew for ten years, leaving in 2006. He then worked on a self-employed basis doing odd jobs but later became involved in helping to set up a restaurant in Barcelona. D and P met through a mutual friend in 2008 and started living together. In 2009, when D became pregnant with their child, P spent most of his time with her in England but would still sometimes travel to continue work on the restaurant project in Barcelona. D gave birth to their son in March 2010. P was a devoted father. His own parents were both alive and he would visit them. He had a brother. He was also close to his maternal aunt, who, like his mother, lives in Spain. He had a network of friends.
P decided to return to work as cabin crew but before doing so he wanted to travel. In April 2011 he flew to South America with his friend G to enjoy a holiday. They travelled to Peru, Columbia and Ecuador. P kept in regular contact with D until, when he was in Lima, Peru, his communications abruptly ceased. His last known communication was a text to D on 16 May 2011. G's communications with his loved ones also ceased. Neither man has been seen or heard of by family or friends since then. Notwithstanding many enquiries and attempts to trace him, there is no information at all as to what happened to P on or after 16 May 2011.
I have been provided with statements from D, P's mother, his aunt, and his friend, F. D and others have sought assistance from the police, the Foreign, Commonwealth and Development Office, and the Peruvian authorities. Posters have been displayed in Lima, social media pleas have been issued, and disclosure orders made against bodies including the NHS, the DWP, and the Salvation Army: all to no avail. There has been no activity on P's bank or mobile phone accounts. D has provided evidence that G also remains missing.
In accordance with court directions, D placed an advertisement in the Berkhamsted and Tring Gazette concerning this application. The advertisement was compliant with the provisions of rule 57.21 and Practice Direction 57B of the Civil Procedure Rules 1998. There has been no response.
Very sadly P's father died shortly after he went missing. More recently, P's grandmother died leaving him a small bequest, prompting this application so that, upon presumption of death being declared, P's son could benefit.
The awful disappearance of P over ten years ago now falls to be considered by reference to the Presumption of Death Act 2013. Section 1 of the Act provides,
Applying for declaration
(1) This section applies where a person who is missing—
(a) is thought to have died, or
(b) has not been known to be alive for a period of at least 7 years.
(2) Any person may apply to the High Court for a declaration that the missing person is presumed to be dead.
(3) The court has jurisdiction to hear and determine an application under this section only if—
(a) the missing person was domiciled in England and Wales on the day on which he or she was last known to be alive,
(b) the missing person had been habitually resident in England and Wales throughout the period of 1 year ending with that day, or
(c) subsection (4) is satisfied.
(4) This subsection is satisfied if the application is made by the spouse or civil partner of the missing person and—
(a) the applicant is domiciled in England and Wales on the day on which the application is made, or
(b) the applicant has been habitually resident in England and Wales throughout the period of 1 year ending with that day.
(5) The court must refuse to hear an application under this section 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.
P's mother...
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Tolley, re Fisher
...or sibling” of Ms Fisher under section 1(5)(a) of the 2013 Act. Neither of course is either of Ms Fisher's cousins. Indeed, in Re P (Presumption of Death) [2021] EWHC 3099 (Fam), [7], Poole J pointed out that a long-term partner was not included either. So the question arises whether the c......