Colm Burke (Fine Gael) | Oireachtas source

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

I welcome the Minister of State and thank him and his staff for coming before the House to deal with this matter. This is a Bill "to provide for the effects in civil law of persons who are missing, including arrangements for interim management of the missing person's property, and to provide for the civil status of the missing person where the circumstances of their absence leads to a presumption of death; and to provide for related matters". It stems from a Law Reform Commission report of 2013 which contained a very detailed examination of the existing law in this area. The number of families directly affected is quite small but it is important that we consider the issue, which the Law Reform Commission deemed important. The membership of the Law Reform Commission at the time of the publication of the report comprised Mr. Justice John Quirke, who had by then retired from his position as a High Court judge, Finola Flanagan, barrister-at-law, Donncha O'Connell, Tom O'Malley, who is from the Minister of State's area, and Marie Baker, who was a senior counsel at the time and who has since been appointed to the High Court. These people had much experience and a very long number of years of legal background. They examined this area quite extensively and produced a report which runs to more than 100 pages. They considered all the legal issues involved in cases of missing persons.

The problem at present is that if a person goes missing and everyone knows that he or she has died but a body has not been located, an inquest cannot proceed. There is a procedure under the Coroners Act, I believe, whereby the Minister for Justice and Equality can give a direction for the coroner to hold an inquest. There have been a number of such cases but they have been very rare. The problem is that when someone disappears and no body is found, a death certificate cannot be obtained and there are, therefore, many matters one cannot deal with, such as the person's bank accounts and property. Mortgages, for example, present difficulties. I was looking at the figures in this regard. There were 62,426 cases of people reported as missing over a ten-year period, and after extensive searches and so on, 385 still could not be located. In the region of 7,000 people per year - approximately 20 each day - go missing or are reported as such. One might say the number is quite high. Many people are located and identified but, as I said, more than 385 people were still not accounted for.There was a case in the south where a couple just disappeared overnight and to this day have never been located. In County Tipperary a man was missing for two years and nothing could be done until the body was eventually located in a slurry tank. Everybody knew the person was dead because his account had not been touched, the car had not been moved and the passport was still in place.

In dealing with legislation on missing persons we must be careful of the issue of fraud. There was one case, the John Darwin case in 2002, where this man went missing and the body could not be located. There was a drawdown of a life insurance policy. The man subsequently turned up in a police station a number of years later. Both he and his wife were prosecuted. Such cases are very rare. In Scotland this law is in place and an average of five court orders, called a presumption of death order, are made per annum. Under my proposed Bill, a person will apply to the Circuit Court for a presumption of death order. In Scotland, the average is five applications a year, which is quite small but it is still important for the families who are directly affected. In the period up to 2011, of the 150 cases that had gone through the court, only one person subsequently turned out to be alive. It was very effective for the families and of assistance to them.

Section 23 of the Coroners Act 1962 provides that where death has occurred and all the evidence is available that a death has occurred but no body has been identified, the Minister can direct that an inquest would be held. That would arise in cases where a person is lost at sea or where a building has been burned down but the remains cannot be identified because the damage was so extensive.

When the Law Reform Commission was preparing this report, it looked at legislation in Australia, Canada, Scotland and other jurisdictions. There was a great deal of research done on it. It is important that we move forward in this matter. One of the things that happens here that I do not like, is that we produce reports and then park them on shelves. This has tended to happen in cases like this. The Law Reform Commission report was produced more than six years ago and we have not brought forward any legislation on it.

The Bill sets out what needs to be done and the procedures that can be put in place. Section 1 sets out the definitions and terms used throughout the Bill. A definition of a "missing person" is clearly set out. Section 2 sets out the persons who may apply for orders under the Bill. Section 3 sets out an application for an order of presumption of death and provides for an order for the interim management of the property of the missing person. The sections set out both the procedure that needs to be adopted. It is a Circuit Court application and there is a very detailed structure on the management of the affairs of the missing person. Before the court makes an order it must be satisfied that all of the criteria have been produced to the court. It is very comprehensive in dealing with that issue.

Let me give an example. The appointment of an interim manager may only be made when (a) it is not known whether the missing person is alive, (b) reasonable efforts have been made to find the person, and (c) where the person has not contacted anybody who lives at the person's last known home address for at least 90 days, or any relative or friend of the person with whom the person is likely to communicate. The Bill sets out all of the criteria that must be met. If the person dealing with the court application, be it the county registrar or the Circuit Court judge, is in any doubt whatsoever he or she may look for further information before making the order. They will not be rushing off making an order unless all of the criteria have been satisfied.

There are checks and balances in the Bill. While the Bill is published, I am not saying it is written in stone. If the Department wants to table further amendments, I have no difficulty in dealing with that.

I believe we need to bring forward this Bill and we need to ensure it is put in place at an early date in order to cater for the families where the person who is missing has property, bank accounts or assets that cannot be managed. At present one must wait for seven years before a final order can be made. There is a period of uncertainty that needs to be dealt with.