Alan Shatter (Dublin South, Fine Gael) | Oireachtas source

Let me start by saying that I was very interested in Senator Ó Clochartaigh's story about his family member. One wonders what she thought the rest of her family was doing when she disappeared. This is one who disappeared to reappear 30 years later. It is an insight into the difficulties in this area.

I congratulate Senator Colm Burke for taking the initiative to introduce legislation to address the civil law issues that arise when a person goes missing. This is an important area of law and I am pleased to announce that the Government has decided to support Senator Burke's Bill in principle. Obviously, there will be issues on which we will seek amendments when the Bill is considered in due course on Committee Stage. As Members are aware, I am a strong advocate of Private Members' Bills, having introduced many such Bills in the Dáil during my career and I look forward to bringing the enactment of this Bill to a successful conclusion during the lifetime of the Government and assisting Senator Colm Burke in that.

It is a truly terrible experience for any family if a family member goes missing. The recent documentaries on the disappeared have shown us once again how the sense of loss reverberates within families for decades. It can be devastating for a family not to know what has happened to a loved one and to be plagued forever by uncertainty. The law cannot ease the pain of loss and uncertainty. However, what it can do is provide a mechanism for closure in legal terms. There is provision in Irish law to address some of the civil issues that arise when a person goes missing. The Coroners Act 1962 gives me as Minister for Justice and Equality the power to direct the coroner to hold an inquest where death has occurred and the body has been destroyed or is irrecoverable. As Members are aware, there is also a common law presumption that if a person has been missing for seven years and has not been in contact with family or friends and if reasonable efforts have been made unsuccessfully to locate them, the High Court may make an order that the person be presumed dead.

As Members are aware, there is also a common law presumption that, if a person has been missing for seven years, has not been in contact with family or friends and reasonable efforts have been made unsuccessfully to locate him or her, 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. The court can make a declaration of presumed death earlier if the evidence suggests that it is highly likely the person is dead. This declaration of presumed death is usually made for probate purposes. The order does not result in the missing person's death being registered on the Register of Deaths under the Civil Registration Act 2004. A death certificate is, therefore, not issued. Moreover, the person's marriage or civil partnership is not ended as a consequence of the declaration.

Senator Burke's Civil Law (Missing Persons) Bill therefore addresses an issue in which legislation is needed. His Bill enables a presumption of death order to be made when a missing person is understood to be dead but where the death cannot be confirmed or where the body is irrecoverable. As such, it responds to the principles agreed by the Council of Europe in 2009 whereby states should provide for a person to be declared dead where death is virtually certain or highly probable. The Civil Law (Missing Persons) Bill also conforms to the Council of Europe's principle that the declaration of presumed death, in this case through the presumption of death order, would have all the legal effects of death in terms of its impact on property, succession and relationships.

The Bill also provides a mechanism for an interim solution to be put in place where a person's affairs need to be managed in the short-term but where the person's ultimate circumstances are unclear. This will enable a person's liabilities, such as for a mortgage or car loan, to continue to be paid. Evidence from the UK has indicated that families can fall into financial hardship if they are unable to access the missing person's bank accounts to pay essential bills, particularly if he or she has been the main breadwinner. Financial hardship compounds the deep emotional distress being experienced by families in these circumstances.

The Law Reform Commission report on the civil law aspects of missing persons, published only in January of this year as mentioned by some Senators, launched the debate advocating further legislation in this area. I thank the Law Reform Commission, LRC, for highlighting the need for action to tackle this issue. The commission's report suggested our current legislative provisions did not respond adequately to the situations faced bythe families of those who go missing. It proposed instead a statutory framework that would provide for a presumption of death order both for those whose deaths are virtually certain and for those whose deaths are highly probable. Stringent proofs would be required under a range of specified headings when an application for a presumption of death order would be made to the court. 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 to disappear.

This is a highly complex and sensitive area. Declaring a person dead has wide-ranging legal effects in terms of a person's property and relationships. It enables the person's property and assets to be distributed to beneficiaries. It allows for life insurance policies to be cashed. It triggers the payment of pensions and social welfare entitlements in many circumstances. In view of the significant potential effects of a presumption of death order, we have to be careful to ensure such orders are issued in the appropriate circumstances. It is always difficult when we do not have irrefutable proof that a person is actually dead. It places an enhanced responsibility upon us to ensure a presumption of death order is issued only when it is evident the person is dead on the balance of probabilities.

Those who go missing, however, are not always dead. We have heard a very stark illustration in that context in this debate in the Seanad. There are many cases each year of people who go missing but who are alive. These can be young people unable to deal with the dynamics of relationships in the family home, mature people seeking to escape stressful situations or people seeking a new life and quite prepared to establish one, cutting their contacts with neighbours, friends and relations. They may evaporate from their usual environment to sample a new life elsewhere, either temporarily or permanently. There may even be people whose whereabouts are unknown to their families but who use social media or other means to confirm they are still alive. While these people may come within the provisions relating to the interim management of property, they are a different cohort from those for whom presumption of death orders have to be sought.

We have to be clear as to the intended purpose of this legislation. Is the legislation intended to provide legal closure for the next of kin of those who are missing, believed dead? Is it instead intended to deal with the immediate financial and legal problems faced by families when a family member goes missing and disappears but who may still be alive? The legal issues in both instances are very different. Other jurisdictions have separate pieces of legislation reflecting their view that the issues arising are sufficiently distinct as to warrant separate statutory provision. In British Columbia in Canada, for instance, the Survivorship and Presumption of Death Act 1996 focuses on missing persons who are presumed to be dead and sets out a system for declaring them dead. Meanwhile, the Estates of Missing Persons Act 1996 deals with the situation of missing persons whose situation is unclear. That Act gives the Supreme Court of British Columbia the power to appoint a curator, so-called, to manage the estate of a person who has been missing for more than three months. Similarly, the recently enacted Presumption of Death Act 2013, which applies to England and Wales, focuses on missing persons who can be presumed dead. Senator Burke's Bill seeks to encompass both categories of missing person. We will need to consider the scope of this legislation carefully to ensure the respective needs of both categories are clearly differentiated. Our concern is to avoid persons being prematurely - or even incorrectly - declared dead.

In this context, I believe that the Bill's definition of a missing person is too broad. Its definition is that a ""missing person" means a person who is observed to be missing from his or her normal patterns of life, that those who are likely to have heard from the person are unaware of the person's whereabouts and that the circumstances of the person being missing raises concerns for his or her safety and well-being". Our primary purpose in the legislation, however, is to deal with missing persons who are believed to be dead or whose disappearance is such that legal arrangements have to be put in place to deal with the aftermath. The legislation is not intended to encompass all missing persons, since many of those who go missing subsequently return home after short periods. Accordingly, I believe we should define the target group more clearly, drawing on the Council of Europe's definition that "a "missing person" is a natural person whose existence has become uncertain, because he or she has disappeared without trace and there are no signs that he or she is alive". An overly loose definition could result in premature applications being made to the court, particularly relating to the appointment of interim managers of the property of those who were not truly missing.

The question of whether to impose a minimum waiting period requires careful attention. The Council of Europe has recommended that only where the missing person's death can be taken as certain should there not be a minimum waiting period. The Council of Europe's deliberations on this issue came in the aftermath of the tsunami disaster of 2004 and the terrorist attacks of 11 September 2001, where people were known to have been killed but where their bodies were irrecoverable. This is a very particular category of missing persons. For those whose death was likely, the Council of Europe recommended a minimum waiting period of a year. It also recommended that the seven year waiting period be retained for missing persons whose deaths were uncertain.

Senator Burke's Bill removes the requirement for a minimum waiting period. When deciding whether to issue a presumption of death order, the court's judgment will be based on the evidence supplied with the application. While it is desirable to streamline processes to the greatest extent possible and to facilitate the families of missing persons to achieve legal certainty as quickly as possible, we will have to consider carefully whether to dispense with a minimum waiting period. This is an interesting issue we need to tease out carefully. The absence of a minimum waiting period increases the risk of erroneous claims in which presumption of death orders are issued too quickly and the person is subsequently found to be alive.

As the Bill essentially limits the degree to which a returned person can recover property once distributed under a presumption of death order, the premature declaration of death would be greatly to the disadvantage of a missing person. We must ensure the Bill safeguards constitutional property rights. Similarly, the streamlining of such mechanisms unfortunately also increases the risk of vexatious claims in which applications for a presumption of death order are wrongly made to acquire property, insurance or other entitlements.

The legislation we enact must put a robust system in place that can address the civil law issues and be capable of withstanding challenges. After all, the legislation will have a significant impact on property rights, relationships, marriages and civil partnerships in particular.

The presumption of death order allows for a missing person's marriage or civil partnership to be ended on the same basis as does a death certificate. However, the Bill also provides for a missing person who returns, to apply to the court to overturn the dissolution of the marriage or civil partnership. While the objective to protect marriage is understandable for constitutional reasons, the Bill offers no protections for the other spouse or civil partner. This issue requires more detailed consideration to ensure that their interests are adequately safeguarded.

I have highlighted some of the questions that have arisen in my preliminary examination of the Civil Law (Missing Persons) Bill 2013. This is a complex area of law which requires careful consideration. We need time to consider Senator Burke's proposals and to assess the potentially wide-ranging implications of this legislation. The Office of the Attorney General needs to be consulted on this legislation as do the Government Departments and State agencies potentially involved, such as in the registration of deaths.

My Department also needs to consider the implications for family law and for succession. Matters relating to court jurisdiction and the powers of coroners also have to be considered. The Government proposes to examine the Bill carefully and to bring forward substantial amendments that are appropriate and necessary on Committee Stage.

I hope that both Senator Burke and other Members of the House will understand when I say that this process will take a minimum of 12 months because of the complexity of the issues to be addressed and the importance of taking a careful and considered approach. In addition, the timescale is due to the current legislative priorities which include completing enactment of the Legal Services Regulation Bill, progressing and enacting the proposed children and family relationships Bill, the immigration, regulation and asylum Bill, and the courts Bill which is required to establish the Court of Appeal. However, I want to assure the House and Senator Burke that it is my objective to ensure that this legislation, with appropriate and necessary amendments, will be enacted during the lifetime of this Government, hopefully during the first part of 2015.

I would like to congratulate Senator Burke on putting such an important issue on the legislative agenda and on starting the legislative process. He has proposed legislative remedies that will release families from the legal nightmares in which they are often currently trapped and that will enable them to move on with their lives. I would like to thank Senator Burke in particular for his initiative and the work he has undertaken. I look forward to working with him to refine this legislation as it passes through the Houses of the Oireachtas.

I wish to draw the attention of Members of the House to our first national Missing Persons Day, which is scheduled to take place on 4 December. It will be marked by a ceremony which I hope can be live streamed on the web. We are laying a foundation stone in this State for an EU-wide missing persons day that will be joined by other member states in years to come. We are engaged with some of our EU colleagues who are watching our proposals in this regard.

As was illustrated this evening, when people go missing in any member state, they may establish new lives in another member state. The objective of the Missing Persons Day is to draw people's attention to the fact that people are missing. The objective is also to encourage the print and broadcasting media to highlight the situation of certain selected individuals who have gone missing in the hope that the information will attract media attention across the EU. If individuals from one member state establish new lives in another member state, they will receive notice that family or friends are still trying to make contact with them and are anxious to know of their whereabouts and well-being. The project will generate an EU-wide focus on re-establishing relationships with missing persons who may, for a range of reasons, have established an alternative life elsewhere. It will create the possibility for them to reconnect with lost relations and friends.

I again wish to thank Senator Burke for his welcome initiative. He has started an important legislative process and once the Bill is enacted, it will prove to be of assistance to families for decades to come.