Charles Flanagan (Laois, Fine Gael) | Oireachtas source

I move: "That the Bill be now read a Second Time."

The Bill before the House is the Civil Law (Presumption of Death) Bill 2018 which started life as a Private Member’s Bill in Seanad Éireann and which passed all Stages in that House in June of last year. I hope it can be enacted speedily given the overwhelmingly positive support which it has attracted to date.

Prior to outlining the content of the Bill, I would like to put on record my acknowledgement of the work of Senators Colm Burke, Marie Louise O’Donnell and Lynn Ruane in championing the need for reform in this area and in seeking to advance the proposals which were first put forward by the Law Reform Commission in 2013. The Government decided not to oppose the Bill, initially presented as the Civil Law (Missing Persons) Bill 2016, when it was introduced in the Seanad but, rather, to work with Senator Colm Burke and his fellow Senators to bring forward a number of amendments to the Bill which were acknowledged as being necessary and to which I will return later.

I am of course aware that Deputies Jonathan O’Brien and Pearse Doherty have also tabled a Bill dealing with these matters and I also commend them for their work.

The situation which the Bill seeks to address is, fortunately, not one which the vast majority of people will ever have to encounter. As a society, we can do little to lessen the sense of loss which occurs when a loved one goes missing. However, as legislators, we have the capacity to intervene in order to ease some of the more practical problems which confront those who are left behind. The Government is very conscious of the fact that the current provisions in Irish law which relate to missing persons are of limited use to those who are left behind. The rebuttable presumption at common law that enables a missing person to be presumed dead if missing for more than seven years is clearly inadequate given the need to deal in a more immediate way with the myriad consequences which may arise when a person goes missing and is in all likelihood dead. It is true that the High Court may make a declaration of presumed death prior to the passage of seven years if there is sufficient circumstantial evidence to justify such a finding. However, such a finding will not result in the missing person’s death being registered on the Register of Deaths, and consequently no death certificate can be issued. Furthermore, any marriage or civil partnership involving the missing person is not ended as a consequence of the declaration of presumed death.

The provisions of the Coroner’s Act 1962 which allow the Minister for Justice and Equality to direct a coroner to hold an inquest where a death has occurred and the body has been destroyed or is irrecoverable are also insufficient in this context, given that there is a geographic restriction that requires the belief of the coroner that a death has occurred in or near his or her district for the section to be effective.

Notwithstanding current limitations, the Government is also conscious that, in reforming this area of the law, there is a need for careful balancing between the need, on the one hand, to address the practical problems which face those left behind when a person goes missing and the need, on the other, to acknowledge the significant legal implications of declaring a missing person dead.

The Bill, as originally presented, had a dual focus. It proposed to deal with the civil law status of missing persons by putting in place a statutory framework to provide for the making of a presumption of death order in respect of two categories of missing persons. The first category was where the circumstances of the disappearance indicated that death was virtually certain. The second category was where both the circumstances and the length of the disappearance indicated that it was highly probable that the missing person had died and would not return, for example, where the disappearance occurred in dangerous circumstances in which loss of life might be presumed. It also had the objective of establishing a regime to allow an interim manager to be appointed to manage the missing person’s estate.

In considering the Bill as presented the Government found that there were difficulties attendant on this dual focus in that it gave rise to a certain blurring of the boundaries between those who are missing and who are, in all probability dead, and those who are missing but still alive. The legal issues attaching to the resolution of the difficulties presented by these two scenarios are not identical and, ideally, should not be conflated. It was in that context that the Government proposed a number of amendments to the Bill which were endorsed by Seanad Éireann, and which I will now outline.

The most significant amendments related to the scope of the Bill. As I already said, the Bill as presented had a dual focus relating to status matters on the one hand and to the interim management of the missing person’s property on the other. The view was taken that the interim management issues were far more complex than those associated with the presumption of death issue in isolation and would require a regime more onerous in terms of oversight than originally proposed. In particular, the proposal that an application for an interim management order might be made once a person had been missing for 90 days gave rise to real concern that a person who had merely gone missing, for whatever reason, but who was not dead, could return to find that their interests had been severely and adversely affected. It was considered that, in the interests of granting some relief to the relatives of those who go missing, the focus of the Bill should, at least for now, be on the issues relating to status. In consequence, all references to matters connected with the interim management of property were deleted. Both the Long Title and the Short Title reflect these changes.

A further substantive amendment in the scope area concerned the definition of “missing person” which is set out in section 2. As presented, the very broad definition encompassed all missing persons, including those stepping out of their lives for whatever reason but who subsequently return to that life. The revised definition focuses on a narrower target group of persons whose death is either virtually certain or is highly probable. The distinction between a death which is virtually certain and one which is highly probable allows for a differentiation in the time period after which an application can be made for a presumption of death order and gives the courts a degree of certainty that the person concerned is actually dead. Given the profound legal consequences of such an order, I consider the distinction to be both necessary and appropriate. The Bill in its current form - section 5 - reflects the recommendations of the Council of Europe in this regard.

There is no minimum waiting period where the missing person's death can be taken as certain but the body cannot be recovered. For those whose death is likely, a minimum waiting period of a year is specified.

Another significant issue, which was addressed during the debate in the Seanad, concerned the effect of a presumption of death order on a marriage or civil partnership involving a missing, presumed dead, person. The policy of the Government is that a presumption of death order should be conclusive insofar as the end of a marriage or civil partnership is concerned. This policy is reflected in section 6 of the Bill. However, it is necessary to address unlikely or even improbable scenarios, which in this case are the implications of the return of a formerly missing person in respect of whom a presumption of death order had been made and who was married or in a civil partnership at the time of the making of that order. The Bill, in section 8, now provides that either the formerly missing person or the person who was left behind can apply to the High Court for a declaration which, if granted, would have the effect of treating the marriage or partnership with a formerly missing person as one where a decree of divorce or a decree of dissolution had been granted. The court is given a broad discretion in relation to modifying or restricting the effect of its order. I must emphasise that any court order would not have the effect of reviving the marriage or partnership, nor would it have any impact on the status of any new marriage or partnership which might exist. However, the provision will allow the parties to effectively plug into existing family law arrangements concerning matters such as maintenance and access. Legal advice received was to the effect that a provision of this nature would make a successful constitutional challenge less likely than the more absolute approach of simply bringing the marriage or partnership to an end without any provision being made to address the consequences of that ending.

Section 4 of the Bill lists those persons who may apply for an order under its provisions. The same list of persons may also apply for a variation order under section 8 along with the missing person in respect of whom a presumption of death order was made. Specific provision is made for a half-brother or a half-sister to be an applicant. This coheres with the provision in the Northern Ireland legislation in relation to applicants who are close relatives in the context of the disappeared, and seems sensible in any event.

Explicit reference to a "creditor" as an applicant has been deleted. By way of background, in none of the legislation in comparable jurisdictions, including England and Wales, Northern Ireland and New Zealand, is there an explicit reference to a "creditor" as an applicant and I have formed the view that such a reference might be misinterpreted. Deletion of the reference to creditor does not, of course, preclude a creditor who feels he or she can demonstrate a sufficient interest in the matter from making an application for an order if the creditor can demonstrate that he or she has a sufficient interest. Provision has also now been made in section 9 for all affected parties to be put on notice as to the making of applications for presumption of death orders or variation orders in order to avoid any injustice which might ensue if an application were to be made and a presumption of death order or a variation order granted in the absence of such parties.

A number of amendments were also made to ensure coherence with the existing arrangements which apply in respect of the registration of life cycle events in accordance with the Civil Registration Act 2004. These amendments were developed in close co-operation with the Department of Employment Affairs and Social Protection and will facilitate registration of a presumed death in a new register of presumed deaths which is to be established under Part 3 of the Bill. The new register will be part of the suite of civil registers maintained by the Registrar General.

As part of these amendments, an obligation is placed on the court in section 5 to include, in the presumption of death order, the particulars available to it which are necessary for the registration of a presumed death in the new register. Provision is also made for an entry in the register of presumed deaths to be removed or deleted in accordance with the terms of any variation order which may be granted. The amendment also provides for the removal of an entry from the new register where the body of a person for whom an entry has been made on the register has been recovered and an entry has been made in the register of deaths or the record of deaths abroad in respect of that person.

Deputies will have noted that the Bill, as presented, gave a role to both coroners and courts in relation to matters covered by it. The Bill in its current form reflects the view that presumption of death orders should only be made by a court and that other, associated matters should also be dealt with by a court. This is consistent with the position which has been taken in other jurisdictions. Accordingly, I do not envisage any role for coroners in relation to the granting of presumption of death orders and all references to the Coroners Act 1962 or to coroners have been deleted from the Bill.

The final substantive series of amendments which were accepted in Seanad Éireann concern jurisdiction and are set out in section 10. As I said, I am of the view that presumption of death orders should only be made by a court and that other, associated matters should also he dealt with by a court. The Circuit Court will have concurrent jurisdiction with the High Court to deal with applications for presumption of death orders. Once such an order has been made, and the time allowed for appeal has expired, the order has the same effect in law as arises from the registration of a death under section 13 of the Civil Registration Act 2004. This means that a death certificate can be issued which, in turn, will allow for the distribution of the estate and the payment of any life assurance policy which may exist. However, it is proposed that an application for an order varying a presumption of death order can be made to the High Court only. The reason for this is that such cases are likely to be extremely rare and if they occur, they may well give rise to difficult and novel legal issues. The High Court will also have jurisdiction where the Attorney General or a person acting on behalf of the State is the applicant, again because of the likely rarity and complexity of such cases.

The jurisdiction provisions now also take account of the fact that, where land is concerned, the jurisdiction of the Circuit Court is determined by market value rather than rateable valuation. The monetary threshold of that market value is currently set at €3 million. The jurisdiction of the Circuit Court has also been expanded to allow for its exercise by a judge of the circuit in which the applicant ordinarily resides. Previously, jurisdiction was confined to the circuit in which the missing person ordinarily resides. This revised approach is consistent with that taken in other jurisdictions. Finally as regards this matter, a residual jurisdiction criterion based on domicile is also provided to allow the High Court to take jurisdiction in an appropriate case when no other jurisdiction criteria exist. There is also a jurisdictional rule to cater for the disappeared when no other rule is available to the applicant. This might arise where the applicant had no connecting factor, whether by way of residence or domicile, with the State.

I stated at the outset that I hoped to see the Bill enacted by the end of the year. This is a sensitive topic which, fortunately, only affects a very small number of people. However, the size of the affected group does not diminish in any way the pain and emotional distress for those who have to live with the disappearance of a loved one. Their turmoil may well be compounded by the many practical difficulties which have to be faced in the aftermath of the person's disappearance. The Seanad Stages of the Bill have demonstrated that there is a significant degree of support for legislation in this area. We owe it to the small group of people who are affected by the disappearance of a loved one to advance this Bill as quickly as possible to do what we can to alleviate their pain, suffering and distress.

At the core of the Bill is the ability to apply for a presumption of death order when a person goes missing. The protection offered to a missing person who subsequently reappears is the ability to apply for a variation order. The Bill is both balanced and compassionate. I look forward to hearing the views of Deputies on its provisions and commend it to the House.

See this speech in context