Seán Canney (Galway East, Independent) | Oireachtas source

On behalf of the Tánaiste and Minister for Justice and Equality, I thank Senators Colm Burke, Marie-Louise O'Donnell and Ruane for presenting the Civil Law (Missing Persons) Bill 2016. I am happy to tell the House that the Government has decided not to oppose the Bill, although the text of the Bill is not without its problems. Careful analysis of its content will be necessary and amendments will inevitably be required when the Bill is considered in due course on Committee Stage.

I am aware that Senator Burke proposed legislation in this area on a previous occasion and on that occasion also the then Government indicated it could support the Bill in principle. That indication was given in good faith and with every expectation that it could be followed through. Regrettably, it did not prove possible to accommodate the assessment needed of the potentially wide-ranging implications of this legislation given the need to deal with what became other pressing major legislative priorities at the time.

Senator Burke has indicated that the primary purpose of the Bill is to deal with the civil law status of missing persons. To this end, the Bill would put 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 is where the circumstances of the disappearance indicate that 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 and will not return, for example, where the disappearance occurred in dangerous circumstances or in other circumstances in which loss of life may be presumed.

The Bill also has as its objective the putting in place of a regime which would allow an interim manager to be appointed to manage the missing person's estate. It places various obligations on those who are appointed to manage the estate of the missing person, including the requirement to effect a policy of insurance. This dual focus of the Bill is potentially problematic in that it blurs the boundaries between those who are missing and 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.

The provision in the Bill allowing for 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 cannot be recovered reflects the principles agreed by the Council of Europe in 2009. That principle is to the effect that states should provide for a person to be declared dead where death is virtually certain or highly probable. The 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.

As Senators will be aware, the Bill before the House is inspired by the work contained in the Law Reform Commission report of 2013, Civil Law Aspects of Missing Persons. The report addresses two very specific issues. First, it addresses the need for a presumption of death order which could be obtained on foot of a court application and which would require a variety of proofs under a range of specified headings. 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. Second, it contemplates 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. Being able to access a missing person's bank accounts to continue to pay essential bills such as a mortgage on a family home would go some little way to alleviating the deep emotional distress which is undoubtedly experienced by families in circumstances where a person is missing. However, it is also essential that adequate safeguards are put in place to ensure premature action is not taken which could have detrimental effects in so far as the missing person is concerned.

Persons who are missing are not always dead. There have been some high profile instances but there are also many cases each year of persons who go missing but who are in fact alive and seeking to escape stressful situations, either temporarily or permanently. In examining this Bill, we need to be sure the potential for abuse is minimised to the greatest extent possible. We do not want to create a legislative framework which, however well-intentioned, could be suborned by those unscrupulous enough to see it as a vehicle for exploiting the assets of a vulnerable relative. Therefore, the scope of this legislation needs to be considered carefully to ensure an appropriate balance is struck.

The definition of a missing person in the Bill may be too broad in that it encompasses all missing persons, including those who step out of their lives for whatever reason but who subsequently return to that life.A narrower focus on the intended target group would see reliance on a definition which draws 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 regarding an application for a presumption of death order also requires careful attention. The Council of Europe has recommended that there be no minimum waiting period only where the missing person’s death can be taken as certain but where their bodies cannot be recovered, for instance as a result of the 2004 tsunami. It 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 are uncertain.

Under the terms of Senator Colm Burke’s Bill, there would be no requirement for a minimum waiting period where a presumption of death order was being sought and a court would have to decide on the application based on the specificity of evidence available. While it is desirable to streamline processes to the greatest extent possible, thereby facilitating the families of missing persons in achieving legal certainty with a minimum of delay, we will have to consider carefully whether to dispense with a minimum waiting period, given the adverse consequences of a presumption of death order for a person who is subsequently found to be alive.

I will touch briefly upon some other matters which also merit further consideration. First, the Bill envisages that a missing person who returns and who has been the subject of a presumption of death order can apply to the court to overturn the dissolution of the marriage or civil partnership which was attendant upon the granting of that order. However, it is wholly unclear as to the protections which would be in place to safeguard the position of the spouse or civil partner who was left behind.

Second, the impact of a presumption of death order on the operations of An Garda Síochána in respect of the investigation of missing persons may also need to be considered further. Furthermore, there remains the question of whether the register of presumed deaths provided for in section 5 of the Bill would be better provided for as an amendment to the Civil Registration Act 2004 rather than creating a stand-alone arrangement. Taking the Civil Registration Act route would bring the register under the wider civil registration framework, for example, correction of errors, searches and issue of certificates etc.

Of course, outside the legislative framework, some initiatives have been undertaken which recognise the lasting trauma for the families and friends of those who have gone missing. As previously mentioned by the Senator, the national Missing Persons Day is now an annual commemorative event. A particular feature of last year’s ceremony was a presentation from Forensic Science Ireland on the DNA database system and the valuable role it can and does play in identifying missing and unknown persons.

In conclusion, I again thank Senators Burke, O’Donnell and Ruane for bringing this Bill forward today. I also thank all the other Senators who spoke on the Bill and acknowledge their contributions and points of view. The Government is committed to giving careful and sympathetic consideration to the proposals which have been made. Any legislation in this area, however, has potentially wide-ranging implications and time will be needed if workable solutions are to be developed and the right balance struck. I hope therefore that it will be understood that a period of some months will be required to progress matters and I believe it is likely to be close to the end of this year before the necessary progress can be made with a view to bringing forward substantial amendments on Committee Stage.