Gerry and Kate McCann claim that Madeleine is alive, whereas Gonçalo Amaral claims that Madeleine died on 3 May 2007 in Apartment 5A. In my view, Mrs Justice Hogg erred in law by stating in her judgment below: “there being no evidence to the contrary, it is presumed Madeleine is alive”. This appears to be a rather convenient way to dispose of the case. Whilst I would not presume to claim that the Court does not have jurisdiction to hear the case, I do contend that the McCanns were wrong to invoke The Child Abduction and Custody Act 1985, simply because there is no evidence that Madeleine was abducted.
If it is valid to presume Madeleine is alive, surely it is equally valid to presume that Madeleine is dead?
IN THE MATTER OF MADELEINE BETH MCCANN
Judgment of Mrs Justice Hogg at the High Court, Family Division, RCJ, London,
7th July 2008, in open court
Madeleine went missing on 3 May 2007 just a few days before her 4th birthday, while she was holidaying with her family in the Algarve in Portugal.
On 17 May 2007 Madeleine’s parents invoked the jurisdiction of this Court under the Inherent Jurisdiction of the Court, and The Child Abduction and Custody Act, and the Hague Convention. They sought various orders and directions aimed at ascertaining the whereabouts and recovery of Madeleine. I became involved with the proceedings shortly afterwards.
On 2 April 2008 Madeleine became a Ward of this Court, and since that date has remained a Ward.
At all times jurisdiction was assumed by the Court because, there being no evidence to the contrary, it is presumed Madeleine is alive.
She is a British Citizen, and like her parents habitually resident here.
The current application was made on 2 April 2008 by the parents seeking disclosure of information and documents from the Chief Constable of Leicestershire to assist them and their own investigations in their search for Madeleine. Such are the complexities of the issues involved other interested parties were invited and joined to the application, and directions given for the hearing today.
The parties have reached an accommodation whereby the Chief Constable will provide to Madeleine’s parents contact details of members of the public who had themselves contacted the parents or their solicitors, and which on receipt were immediately passed to the Chief Constable, together with a brief resume of the information given.
The parents do not wish to pursue other aspects of the application, and save for the draft consent order being approved by this Court wish to withdraw their application and seek leave to do so.
I have no criticism of the parents in making this application. They have behaved responsibly and reasonably throughout.
I have considered the documents provided to this Court by the various parties, and have concluded that the agreement reached by the parties is entirely appropriate, and that the parents should be permitted to withdraw the balance of their application.
I will make the Order by Consent as sought. In particular paragraph 1 of the Order made on the 22 May 2007 shall be varied with the words:
“The terms of this paragraph shall not apply to the Chief Constable of Leicestershire or any other United Kingdom law enforcement agency. And for the avoidance of doubt all the evidence submitted to the Court and the Case Summaries and Skeleton Arguments remain confidential to the Court save that the Chief Constable may use his discretion to disclose his evidence, case summary and skeleton arguments filed in this Court and the Orders of 22 May 2007, 2 April 2008 and this Order. Any other documents and their contents are not to be disclosed to any person or published save in accordance with Orders already made by the Court or further Order of the Court”.
It may be noted that neither of the Parents is present today. I let it be known last week that providing their legal team was fully instructed neither parent need be present, and I would not criticise or bear any ill-feeling towards them if they chose to stay away. It was my decision as they have suffered enough, and I wished to ease their burden.
I know the police authorities and other official law enforcement agencies in this country, in Portugal and elsewhere have striven and will continue to strive to trace Madeleine.
I urge anyone who has any information however small or tenuous to come forward now so that further enquiries can be made.
There is, of course, as least one person who knows what has happened to Madeleine, and where she may be found.
I ponder about that person: whether that person has a heart and can understand what it must be like for Madeleine to have been torn and secreted from her parents and siblings whom she loves and felt secure with, and whom no doubt misses and grieves for. Whether that person has a conscience or any feeling of guilt, remorse or even cares about the hurt which has been caused to an innocent little girl: whether that person has a faith and belief, and what explanation or justification that person will give to God.
I entreat that person whoever and wherever you may be to show mercy and compassion, and come forward now to tell us where Madeleine is to be found.
I hope and pray that Madeleine will be found very soon alive and well.
I confirm the Wardship and Madeleine will remain a Ward of Court until further Order of the Court. The case will be reserved to myself subject to my availability.
Death in absentia
“In law, death in absentia is the status of a person who has been declared presumed dead when the person disappears but no identifiable remains can be located or recovered”.
Facts, circumstances, and the “balance of probabilities”
“In most common law and civil code jurisdictions, it is usually necessary to obtain a court order directing the registrar to issue a death certificate in the absence of a physician’s certification that an identified individual has died. However, if there is circumstantial evidence that would lead a reasonable person to believe that the individual is deceased on the balance of probabilities, jurisdictions may agree to issue death certificates without any such order. For example, passengers and crew of the Titanic who were not rescued by the RMS Carpathia were declared legally dead soon after the Carpathia’s arrival at New York City. More recently, death certificates for those who perished in the September 11, 2001 attacks were issued by the State of New York within days of the tragedy. The same is usually true of soldiers missing after a major battle, especially if the enemy keeps an accurate record of its prisoners of war.
If there is not sufficient evidence that death has taken place, it may take somewhat longer, as simple absence does not necessarily prove death. The requirements for declaring an individual legally dead may vary depending on numerous details, including:
* The jurisdiction the individual lived in before death
* The jurisdiction where they are presumed to have died
* How the individual is thought to have died (murder, suicide, accident, etc.)
* the balance of probabilities that make it more likely than not that the individual is dead
Most countries have a set period of time (seven years in many common law jurisdictions) after which an individual is presumed to be dead if there is no evidence to the contrary. However, if the missing individual is the owner of a significant estate, the court may delay ordering a death certificate to be issued if there has been no real effort to locate the missing person. If the death is thought to have taken place in international waters or in a location without a centralized and reliable police force and/or vital statistics registration system, other laws may be in effect”.
Legal aspects of death in absentia
England and Wales
“In England and Wales, if it is believed that there should be an inquest the local coroner will file a report; this may be done to help a family receive a death certificate that will bring some closure. This will bring any suspicious circumstances into light. The coroner will then apply to the Secretary of State for Justice under the Coroners Act 1988 section 15, for an inquest with no body. The seven years rule will only apply in the High Court of Justice on the settlement of an estate. According to a spokesman for the Ministry of Justice, the number of requests received each year is fewer than 10 but very few of these are refused. Without a body an inquest relies mostly on evidence provided by the police, and whether the senior officers believe the missing person is legally dead”.
Perhaps Gonçalo Amaral should consider seeking a court order declaring Madeleine is dead in absentia in Portugal? Or, someone maybe attempting this in England?