John Perry (Sligo-North Leitrim, Fine Gael) | Oireachtas source

On behalf of the Minister for Justice and Equality, who is unable to be here, I thank the Senator for raising this topic on the Adjournment. The Minister is aware of the Senator's keen interest in this area as evidenced by the fact that he has previously brought forward a Private Members' Bill on the subject and I am pleased to be given the opportunity to respond to the intervention which he has just made.

This is a very sensitive topic which, fortunately, only impinges upon a very small number of people. However, for those who experience the pain which is attendant upon a loved one going missing in inexplicable circumstances, there is significant emotional turmoil and distress which is often compounded by the many practical difficulties which have to be faced in the aftermath of that person's disappearance.

The law may not be able to do much to ease the emotional pain but it can ensure that the practical difficulties are mitigated to the greatest possible extent. The backdrop to our discussion is the Law Reform Commission Report on Civil Law Aspects of Missing Persons which was published in January of this year and which was preceded by an in-depth consultation paper published in December 2011.

As the commission points out, at common law, where a person is missing for seven years, and has not contacted those likely to have heard from him or her, and reasonable efforts have been made to locate the missing person, the High Court may make an order that the person be presumed dead. As the common law presumption is rebuttable, it is not always necessary to wait seven years to make such an application so that the court may make a declaration of presumed death before seven years has passed. This declaration of presumed death is usually made for probate purposes and does not result in the registering of the death of the missing person in the register of deaths under the Civil Registration Act 2004, and therefore does not result in the issuing of a death certificate. Neither does it affect or alter the civil law status of the missing person, notably their marriage or civil partnership.

Obviously, it is eminently desirable that the maximum possible amount of legal certainty is brought to bear on the very distressing circumstances in which the immediate family and relatives find themselves where a person goes missing, often where death is presumed. The Commission recognises in its analysis that, in so far as is practicable, the law should be responsive to the complexity of the consequences that arise in these situations and is of the view that the current law does not meet the requisite standard. The Law Reform Commission's report is at present being examined within the Department of Justice and Equality. Its proposals would provide a clear legal definition of a missing person which would encompass a number of elements. Those proposals also envisage a statutory framework which would provide for the making of a presumption of death order in respect of two categories of missing persons. The first category would arise where the circumstances of the disappearance indicate that death is virtually certain. The second would arise where both the circumstances and length of the disappearance indicate that it is highly probable that the missing person has died and will not return.

Stringent proofs would be required under a range of specified headings where a person seeks a presumption of death order from a court and the court would also have to take account of additional circumstances including, where relevant, the abandonment of valuable property and the presence or absence of a motive for the missing person to remain alive but disappear.

In situations where death is virtually certain, the recommendation is that there be no minimum waiting period before an application can be made to obtain a declaration of death and that such a declaration could be made by a coroner and would be identical to a standard declaration of death. In situations where death is highly probable, the recommendation is that an application be made to the Circuit Court for a declaration of presumed death. While, in this instance, there would be a seven-year reference period this would not constitute a mandatory minimum waiting period and an application could be made at any time where it is established on the balance of probabilities that death may be presumed. The declaration of presumed death would allow a certificate to be issued which would have all the effects of a standard death certificate.

The Commission also recommends legislative provision for the limited management of the property of a missing person, in particular in circumstances in which it could not be established that a presumption of death order could be made. This recognises that, when a person disappears, those who are left behind find themselves, along with their distress at the disappearance, with very immediate basic difficulties such as accessing a missing person's bank accounts and discharging his or her financial obligations such as the payment of a mortgage and other bills. Of course, in addition to financial matters, there are also legal issues concerning the spouses or civil partners of those who have disappeared and the need for certainty in relation to the continued existence or otherwise of the legal relationships in either case. Furthermore, any legislation would also have to deal with the legal consequences attendant upon the very difficult and highly unusual circumstances in which a person who is presumed to be dead actually turns out to be alive.

While the Minister is very sympathetic to the view that it is important that legislation be advanced in this area, he has asked me to emphasise that time must be taken to examine the Law Reform Commission's recommendations more closely than has been possible in the past six months and to consult properly on them. There are a number of Departments and State agencies potentially involved, not least in relation to the issue of the registration of deaths. Also, within the Department of Justice and Equality, the recommendations raise issues in relation to a range of areas. In family law there are issues arising as regards marriage and civil partnership. In the area of succession there are matters relating to the distribution of the estate of a person presumed dead. Matters relating to court jurisdiction and the powers of coroners also have to be considered.

Once again the Minister has asked me to express his gratitude to the Senator for raising the issue and the Law Reform Commission for its very extensive work on both its consultation document and its 2013 report on this area. The House can be assured that its recommendations, together with the views of Senator Burke, will receive very close attention in the Department of Justice and Equality.