Michael Mullins (Fine Gael)
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I welcome the Minister of State, Deputy John Perry, to the House.

Colm Burke (Fine Gael)
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I welcome the Minister of State to the House and thank the Acting Chairman. My Adjournment matter is on missing persons. Last February I published a Private Members' Bill on the matter and I am anxious to proceed. The Bill follows on from the report of the Law Reform Commission that was published in January. The 160-page report clearly sets out very good proposals to deal with the issue and recommends making specific provisions in law to deal with two categories of missing person: first, where the circumstances of the disappearance indicate that death is virtually certain; and second, where the circumstances and length of the disappearance indicate that it is highly probable that the missing person has died and will not return - for example, if the disappearance occurred in dangerous circumstances. There are other circumstances in which loss of life may be presumed, such as a person going overboard while at sea, or there is a clear indication that a person has died.

I have approached the matter from a legal point of view. The problem is that nothing can be done with the estate of a missing person. The Law Reform Commission, and my Bill as published, recommended that we set up a structure to allow for an application to be made to the County Registrar or the Circuit Court for a presumption of death order. The order would allow for a management system to be put in place to manage the missing person's affairs. The Bill is detailed and sets out how the issue can be dealt with. It means we are keeping it within the courts system as regards setting up a proper procedure and one that is properly supervised.

At present people are in limbo. We had the recent sad case in Tipperary where a man who had been missing for two years was found in a slurry tank. In that case issues relating to the estate have had to stand still for a period. It is important that proper structures are put in place here as has been done in the UK and Northern Ireland, given that the Law Reform Commission has seriously researched the issue and has made definitive proposals as to how we should manage it within the legal system. As I have published a Private Members' Bill in this area, the homework is done and it is case of trying to move on it. I am concerned that when the Law Reform Commission publishes reports we have a tendency to put them on the shelf for a period. That was the reason I published the Bill in February and the reason I am raising the issue again. I am anxious that we move it on and that it is not parked for three or four years before dealing with it.

John Perry (Sligo-North Leitrim, Fine Gael)
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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.

Colm Burke (Fine Gael)
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I thank the Minister of State for a very comprehensive report. I fully understand that in the past six months all Departments have had to deal with the EU Presidency and that this matter would not have been given the priority. Given that we have the Bill and the report and the fact that there is consultation with other Departments - while accepting what he said about the family law issues which, I think, have been dealt with comprehensively in the Law Reform Commission report - it is a matter on which we could move forward fairly fast at this stage. As the groundwork is done, let us not lose the opportunity.

John Perry (Sligo-North Leitrim, Fine Gael)
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On behalf of the Minister for Justice and Equality, I thank the Senator once again for his considered intervention. He has raised issues which are of genuine human concern and where legislative intervention can play some role, however small, in addressing the difficulties faced by those whose loved ones have disappeared.

While not strictly relevant to the need for legislative intervention, I would like to record the fact that the Department of Justice and Equality has provided funding, since 2008, through the Commission for the Support for the Victims of Crime, for Missing in Ireland Support Services, a non-profit organisation that provides support to families and friends of missing persons. The Department also provides accommodation for that organisation.

In so far as the legislative role of the Department is concerned, there are some areas of the law which fall under its remit where it will be necessary to look more closely at the Law Reform Commission’s recommendations. One of these areas concerns coronial law and the role which coroners should have in the provision of death certificates.

Another area relates to the effect of a declaration of presumed death on a subsisting marriage - notably, that on the reappearance of a person presumed dead, the marriage does not remain valid.

This will have to be examined carefully in respect of the constitutional implications. The declaration of presumed death may allow for the distribution of an estate under a will or under intestacy provisions. It is logical and appropriate that closely related provisions under the Family Law Acts and the Civil Partnership and Certain Rights and Obligations of Cohabitants Act allow a spouse, a civil partner or a cohabitant to apply to the court in respect of the estate of the deceased person.

I thank the Senator who will be aware of the extensive legislative programme undertaken by the Department of Justice and Equality. The Department has been working on, and has brought forward, a number of priority Bills, including the so-called troika measures, including the personal insolvency legislation, the Land and Conveyancing Law Reform Bill and the Legal Services Regulation Bill. Ireland completed a very successful programme up to the end of June but this has inevitably meant this was not possible.