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 Header Item An Ghaeilge: Ráitis (Continued)
 Header Item Civil Law (Presumption of Death) Bill 2016 [Seanad]: Second Stage

Tuesday, 12 March 2019

Dáil Éireann Debate
Vol. 980 No. 7

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  7 o’clock

(Speaker Continuing)

[Deputy Seán Kyne: Information on Seán Kyne Zoom on Seán Kyne]  Luaigh an Teachta Connolly Bille na dteangacha oifigiúla (leasú). Mar a dúirt mé, beidh mé ag brú ar aghaidh le foilsiú an Bhille sin go luath.

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Civil Law (Presumption of Death) Bill 2016 [Seanad]: Second Stage

Minister for Justice and Equality (Deputy Charles Flanagan): Information on Charles Flanagan Zoom on Charles Flanagan I move: "That the Bill be now read a Second Time."

The Bill before the House is the Civil Law (Presumption of Death) Bill 2018 which started life as a Private Member’s Bill in Seanad Éireann and which passed all Stages in that House in June of last year. I hope it can be enacted speedily given the overwhelmingly positive support which it has attracted to date.

Prior to outlining the content of the Bill, I would like to put on record my acknowledgement of the work of Senators Colm Burke, Marie Louise O’Donnell and Lynn Ruane in championing the need for reform in this area and in seeking to advance the proposals which were first put forward by the Law Reform Commission in 2013. The Government decided not to oppose the Bill, initially presented as the Civil Law (Missing Persons) Bill 2016, when it was introduced in the Seanad but, rather, to work with Senator Colm Burke and his fellow Senators to bring forward a number of amendments to the Bill which were acknowledged as being necessary and to which I will return later.

I am of course aware that Deputies Jonathan O’Brien and Pearse Doherty have also tabled a Bill dealing with these matters and I also commend them for their work.

The situation which the Bill seeks to address is, fortunately, not one which the vast majority of people will ever have to encounter. As a society, we can do little to lessen the sense of loss which occurs when a loved one goes missing. However, as legislators, we have the capacity to intervene in order to ease some of the more practical problems which confront those who are left behind. The Government is very conscious of the fact that the current provisions in Irish law which relate to missing persons are of limited use to those who are left behind. The rebuttable presumption at common law that enables a missing person to be presumed dead if missing for more than seven years is clearly inadequate given the need to deal in a more immediate way with the myriad consequences which may arise when a person goes missing and is in all likelihood dead. It is true that the High Court may make a declaration of presumed death prior to the passage of seven years if there is sufficient circumstantial evidence to justify such a finding. However, such a finding will not result in the missing person’s death being registered on the Register of Deaths, and consequently no death certificate can be issued. Furthermore, any marriage or civil partnership involving the missing person is not ended as a consequence of the declaration of presumed death.

The provisions of the Coroner’s Act 1962 which allow the Minister for Justice and Equality to direct a coroner to hold an inquest where a death has occurred and the body has been destroyed or is irrecoverable are also insufficient in this context, given that there is a geographic restriction that requires the belief of the coroner that a death has occurred in or near his or her district for the section to be effective.

Notwithstanding current limitations, the Government is also conscious that, in reforming this area of the law, there is a need for careful balancing between the need, on the one hand, to address the practical problems which face those left behind when a person goes missing and the need, on the other, to acknowledge the significant legal implications of declaring a missing person dead.

The Bill, as originally presented, had a dual focus. It proposed to deal with the civil law status of missing persons by putting 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 was where the circumstances of the disappearance indicated that death was virtually certain. The second category was where both the circumstances and the length of the disappearance indicated that it was highly probable that the missing person had died and would not return, for example, where the disappearance occurred in dangerous circumstances in which loss of life might be presumed. It also had the objective of establishing a regime to allow an interim manager to be appointed to manage the missing person’s estate.

In considering the Bill as presented the Government found that there were difficulties attendant on this dual focus in that it gave rise to a certain blurring of the boundaries between those who are missing and who 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. It was in that context that the Government proposed a number of amendments to the Bill which were endorsed by Seanad Éireann, and which I will now outline.

The most significant amendments related to the scope of the Bill. As I already said, the Bill as presented had a dual focus relating to status matters on the one hand and to the interim management of the missing person’s property on the other. The view was taken that the interim management issues were far more complex than those associated with the presumption of death issue in isolation and would require a regime more onerous in terms of oversight than originally proposed. In particular, the proposal that an application for an interim management order might be made once a person had been missing for 90 days gave rise to real concern that a person who had merely gone missing, for whatever reason, but who was not dead, could return to find that their interests had been severely and adversely affected. It was considered that, in the interests of granting some relief to the relatives of those who go missing, the focus of the Bill should, at least for now, be on the issues relating to status. In consequence, all references to matters connected with the interim management of property were deleted. Both the Long Title and the Short Title reflect these changes.

A further substantive amendment in the scope area concerned the definition of “missing person” which is set out in section 2. As presented, the very broad definition encompassed all missing persons, including those stepping out of their lives for whatever reason but who subsequently return to that life. The revised definition focuses on a narrower target group of persons whose death is either virtually certain or is highly probable. The distinction between a death which is virtually certain and one which is highly probable allows for a differentiation in the time period after which an application can be made for a presumption of death order and gives the courts a degree of certainty that the person concerned is actually dead. Given the profound legal consequences of such an order, I consider the distinction to be both necessary and appropriate. The Bill in its current form - section 5 - reflects the recommendations of the Council of Europe in this regard.

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