A Chathaoirligh,
I would like to 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 at Committee Stage. As you know, I am a strong advocate of Private Members’ Bills, having introduced many such Bills into the Dáil during my career.
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 to provide a mechanism for closure in legal terms.
There is provision in Irish law to address some of the civil law issues that arise when a person goes missing. The Coroner’s Act 1962 gives me, as Minister for Justice and Equality, the power to direct the coroner to hold an inquest where a death has occurred and the body has been destroyed or is irrecoverable. As you are aware, there is also a common law presumption that if a person has been missing for seven years, if he or she has not been in contact with family or friends and if 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 may make a declaration of presumed death earlier if the evidence suggests that it is highly likely that the person is in fact dead. This declaration of presumed death is usually made for probate purposes. However, 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 not therefore 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 addresses an issue, therefore, on 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 that 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 already being experienced by families in these circumstances.
The Law Reform Commission Report on the Civil Law Aspects of Missing Persons, published only in January this year, launched the debate advocating further legislation in this area. I wish to thank the LRC for highlighting the need for action to tackle this issue. The LRC report suggested that our current legislative provisions did not respond adequately to the situations faced by the families of those who go missing. It proposed instead a statutory framework which would provide for a presumption of death order both for those whose death is virtually certain and for those whose death is highly probable. Stringent proofs would be required under a range of specified headings when an application for a Presumption of Death Order was 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 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 that such Orders are issued in the appropriate circumstances. It is always difficult when we do not have irrefutable proof that the person is actually dead. It places an enhanced responsibility upon us to ensure that a Presumption of Death Order is issued only when it is evident that the person is dead on the balance of probabilities.
Those who go missing, however, are not always dead. There are many cases each year of people who go missing but who are in fact alive. These can be young people unable to deal with the dynamics of relationships in the family home or mature people seeking to escape stressful situations. They may simply evaporate from their usual environment to sample a new life elsewhere either temporarily or permanently. Indeed there may even be people whose whereabouts are unknown to their families but who use social media or other means to confirm that 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 but 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 legislation. 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’ to manage the estate of a person who has been missing for over three months. Similarly, the recently enacted Presumption of Death Act 2013 for England and Wales focuses on missing persons who can be presumed dead. However, 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 that 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 or well-being.’ However, our primary purpose in the legislation 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 that 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 or not to impose a minimum waiting period 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. The Council of Europe’s deliberations on this issue came in the aftermath of the tsunami disaster of 2004 and the terrorist attacks of September 11, 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 or not to issue a Presumption of Death Order, the Court’s judgement 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 or not to dispense with a minimum waiting period. 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 have to ensure that 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 that we enact has to 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 and relationships, on 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 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 at Committee Stage. I hope that both Senator Burke and other members of the House will understand when I say this process will take a minimum of 12 months because of the complexity of the issues to be addressed, the importance of taking a careful and considered approach and because of the current legislative priorities which include completing enactment of the Legal Services Regulation Bill, progressing and enacting the proposed Children and Family Relationships Bill and the Immigration , Regulation and Asylum Bill and the Courts Bill required to establish the Court of Appeal.
I would like to congratulate Senator Burke for putting such an important issue on the legislative agenda and for 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 for his initiative and look forward to working with him to refine this legislation as it passes through the Houses of the Oireachtas.