Colm Burke (Fine Gael) | Oireachtas source

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

I welcome the Minister for Justice and Equality, Deputy Shatter, to the House and thank him for taking the time to deal with this matter today. I also thank the Minister for the work he has done to date in regard to reform in our legal process. Substantial reforms have been made in the past two and a half years and it is important we would give recognition to that. In particular, the big reform is the constitutional change that has been made and which we will implement in regard to the setting up of the court of civil appeal. It is an important change in order to move appeals out of the Supreme Court, where there is currently a delay of up to four years. There have been a number of other changes, such as the Courts and Civil Law (Miscellaneous Provisions) Act, the Criminal Justice Act and, in regard to my own constituency, the Bill we put through to allow for the building of a new prison in Cork. Changes are occurring in the Department of Justice and Equality as a direct result of the Minister's involvement and influence, and I thank him for the work he is doing in this area.

It is also important that I acknowledge the work of the justice committee in regard to missing persons. Its report in May 2012 involved a number of Senators, including Senators Bacik, Bradford, Conway, Mullen and O'Donovan, and I acknowledge their contribution in dealing with this issue. I also commend the Law Reform Commission, which produced a comprehensive 160-page report in January last. When the Law Reform Commission comes forward with a report, it is important that we try to follow up on its recommendations. One of the people involved in that was Ms Marie Baker SC, who is from Cork and with whom I have been in communication in trying to bring forward this Bill.

As the law stands at present, if a person goes missing and it is clear from all the evidence available that they have died, there is no legal procedure available to allow for their estate to be managed. The records of the missing persons bureau of the Garda Síochána show that almost 20 people are reported as missing every day, amounting to over 7,000 missing person reports annually. Fortunately, in the vast majority of cases, the person who has been thought to be missing turns up safe. However, in 2011, of the 8,511 recorded reports of missing persons, 28 people remained missing at the end of that year.

The Law Reform Commission produced the report, "Civil Law Aspects of Missing Persons", in January 2013. Following on from the publication of this report and the proposals contained therein, I have published the Civil Law (Missing Persons) Bill 2013. The primary purpose of the Bill is to deal with the civil law status of missing persons. It puts in place a statutory framework which would provide for the making a presumption of death order in respect of two categories of missing persons. The first category is where the circumstances of the disappearance indicate that a death is virtually certain. The second category is where both the circumstances and the length of the disappearance indicate that it is highly probable that the missing person has died or will not return, which is where the disappearance occurred in dangerous circumstances or in other circumstances in which the loss of life may be presumed.

The Bill is intended to clarify the legal position where a person is missing, who is entitled to apply to the court for an interim manager to manage the missing person's estate and what procedures must be complied with before the courts will issue a presumption of death order. It also places an obligation on those who are appointed to manage the estate of the missing person, including the requirement to effect a policy of insurance. Under the Bill, the definition of a missing person is clearly defined as a person who is observed to be missing from his or her normal patterns of life, where those who are likely to have heard from the missing person are unaware of his or her whereabouts or where the circumstances of the person being missing raise concern for the person's safety and well-being. The Bill sets out who is entitled to apply to the Circuit Court for a management order or for a presumption of death order.

It may be the spouse, civil partner, cohabitee or any other family member of the missing person. Under the proposed legislation, a court registrar may make an order appointing a person as an interim manager provided the latter role is limited to such matters as accessing a bank account in order to pay utility bills or make repayment on a loan or mortgage. An order to appoint an interim manager may only be made where reasonable efforts have been made to locate the missing person and where, for at least 90 days, the person has not contacted anyone who lives at his or her last known home address or any relative or friend with whom the person would be likely to communicate. The interim manager must act in the best interests of the missing person at all times. The Bill also provides that the order must specify the exact powers being assigned to the manager and that the appointment is for a period of up to two years, which can be extended for a further two years. The manager will be required to file annual accounts with the court. In the event that the interim manager becomes aware that the missing person is alive, he or she must apply to the court for an order discharging his or her appointment.

The Bill puts in place a statutory framework for the provision of presumption of death orders. Where a person is applying for such an order, he or she must provide specific evidence tending to indicate that the missing person is dead, including the circumstances surrounding the person's disappearance, evidence of an absence of communication with people who would be likely to hear from the missing person, and an indication of the last known correspondence or communication from the missing person and the length of time since his or her disappearance. Evidence must also be produced of the efforts made to find the missing person, including evidence from searching organisations showing the attempts that were made to locate him or her.

A presumption of death order may be made by a coroner following an inquest held under the Coroners Act 1962 where the coroner is satisfied that in respect of the missing person, the circumstances of the person having gone missing indicate that his or her death is virtually certain. The Bill goes on to provide that a death order may be made by the Circuit Court where the court is satisfied that in respect of a missing person, the circumstances of his or her having gone missing are such that his or death is highly probable. The Bill further provides that prior to making the order, the coroner or court, as appropriate, may serve notice to any person who might be affected by the making of the order.

I commend the Bill to the House. The Law Reform Commission report provides a comprehensive examination of the difficulties faced by the families of missing persons. The Bill takes account of these difficulties and seeks to provide legal mechanisms to assist the families. I thank the Minister, Deputy Alan Shatter, for his announcement earlier this month that 4 December will be Missing Persons Day. This is the first year in which a day has been set aside to remember people who have gone missing and their families. Finally, I take this opportunity to acknowledge the work done by Davitt College in Mayo, which has won an award for its research in this area.