Civil Law (Missing Persons) Bill 2013: Second Stage

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

I welcome the Minister for Justice and Equality, Deputy Alan Shatter, and thank him for taking the time to deal with this matter today. I also thank the Minister for the work he has done to date in regard to reform in our legal process. Substantial reforms have been made in the past two and a half years and it is important we give recognition to it. In particular, the big reform is the constitutional change that has been made and which we will implement in regard to the setting up of the court of civil appeal. It is an important change in order to move appeals out of the Supreme Court, where there is currently a delay of up to four years. There have been a number of other changes such as the Courts and Civil Law (Miscellaneous Provisions) Act, the Criminal Justice Act and, in regard to my own constituency, the Bill we put through to allow for the building of a new prison in Cork. Changes are occurring in the Department of Justice and Equality as a direct result of the Minister's involvement and influence, and I thank him for the work he is doing in this area.

It is also important that I acknowledge the work of the justice committee in regard to missing persons. Its report in May 2012 involved a number of Senators, including Senators Ivana Bacik, Paul Bradford, Martin Conway, Rónán Mullen and Denis O'Donovan, and I acknowledge their contribution in dealing with this issue. I also commend the Law Reform Commission, which produced a comprehensive 160-page report in January last. When the Law Reform Commission comes forward with a report, it is important that we try to follow up on its recommendations. One of the people involved was Ms Marie Baker, SC, who is from Cork and with whom I have been in communication in trying to bring forward this Bill.

As the law stands, if a person goes missing and it is clear from all the evidence available that they have died, there is no legal procedure available to allow for their estate to be managed. The records of the missing persons bureau of the Garda Síochána show that almost 20 people are reported as missing every day, amounting to over 7,000 missing person reports annually. Fortunately, in the vast majority of cases, the person who has been thought to be missing turns up safe. However, in 2011, of the 8,511 recorded reports of missing persons, 28 people remained missing at the end of that year.

The Law Reform Commission produced the report, Civil Law Aspects of Missing Persons, in January 2013. Following on from the publication of this report and the proposals contained therein, I have published the Civil Law (Missing Persons) Bill 2013. The primary purpose of the Bill is to deal with the civil law status of missing persons. It puts in place a statutory framework which would provide for the making 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 a 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 or will not return, which is where the disappearance occurred in dangerous circumstances or in other circumstances in which the loss of life may be presumed.

The Bill is intended to clarify the legal position where a person is missing, who is entitled to apply to the court for an interim manager to manage the missing person's estate and what procedures must be complied with before the courts will issue a presumption of death order. It also places an obligation on those who are appointed to manage the estate of the missing person, including the requirement to effect a policy of insurance. Under the Bill, the definition of a missing person is clearly defined as a person who is observed to be missing from his or her normal patterns of life, where those who are likely to have heard from the missing person are unaware of his or her whereabouts or where the circumstances of the person being missing raise concern for the person's safety and well-being. The Bill sets out who is entitled to apply to the Circuit Court for a management order or for a presumption of death order.

It may be the spouse, civil partner, cohabitee or any other family member of the missing person. Under the proposed legislation, a court registrar may make an order appointing a person as an interim manager provided the latter role is limited to such matters as accessing a bank account in order to pay utility bills or make repayment on a loan or mortgage. An order to appoint an interim manager may only be made where reasonable efforts have been made to locate the missing person and where, for at least 90 days, the person has not contacted anyone who lives at his or her last known home address or any relative or friend with whom the person would be likely to communicate. The interim manager must act in the best interests of the missing person at all times. The Bill also provides that the order must specify the exact powers being assigned to the manager and that the appointment is for a period of up to two years, which can be extended for a further two years. The manager will be required to file annual accounts with the court. In the event that the interim manager becomes aware that the missing person is alive, he or she must apply to the court for an order discharging his or her appointment.

The Bill puts in place a statutory framework for the provision of presumption of death orders. Where a person is applying for such an order, he or she must provide specific evidence tending to indicate that the missing person is dead, including the circumstances surrounding the person's disappearance, evidence of an absence of communication with people who would be likely to hear from the missing person, and an indication of the last known correspondence or communication from the missing person and the length of time since his or her disappearance. Evidence must also be produced of the efforts made to find the missing person, including evidence from searching organisations showing the attempts that were made to locate him or her.

A presumption of death order may be made by a coroner following an inquest held under the Coroners Act 1962 where the coroner is satisfied that in respect of the missing person, the circumstances of the person having gone missing indicate that his or her death is virtually certain. The Bill goes on to provide that a death order may be made by the Circuit Court where the court is satisfied that in respect of a missing person, the circumstances of his or her having gone missing are such that his or death is highly probable. The Bill further provides that prior to making the order, the coroner or court, as appropriate, may serve notice to any person who might be affected by the making of the order.

I commend the Bill to the House. The Law Reform Commission report provides a comprehensive examination of the difficulties faced by the families of missing persons. The Bill takes account of these difficulties and seeks to provide legal mechanisms to assist the families. I thank the Minister for his announcement earlier this month that 4 December will be Missing Persons Day. This is the first year in which a day has been set aside to remember people who have gone missing and their families. I take the opportunity to acknowledge the work done by Davitt College in County Mayo which has won an award for its research in this area.

I second the motion. I thank my colleague, Senator Colm Burke, for bringing this Bill to the House. It was only after reading through it that I realised the huge difficulties facing families when a loved one goes missing for a long period. The Bill is intended to put in place a statutory framework for the making of a presumption of death order in respect of the two categories of missing persons, as outlined by the Senator.

People are reported missing on a daily basis to An Garda Síochána and, in most cases, they turn up within a short timeframe. The verifiable statistic for missing persons in this country is 393 between 2003 and 2011. People go missing for a variety of reasons. Some want to break contact with their family for emotional reasons, financial reasons, because of mental illness and so on. Whatever the reason, their actions, which only they can justify, can cause enormous pain to their families and friends. As I said, 393 people are listed as missing in Ireland. Nobody in this House can articulate or understand the pain of the families of missing people, hoping each day for news and some type of closure to their ongoing pain. Their suffering is magnified in the limbo of not knowing what has become of their loved ones.

When a person has been missing for a considerable period, certain issues must be dealt with, however painful this is for the family. The Law Reform Commission report entitled, Civil Law Aspects of Missing Persons, states that under the current law, there is no process by which those left behind can deal with the immediate practical and legal issues that may arise. As a consequence, those left behind often suffer a range of financial consequences. For example, the bank accounts of a family bread winner may become inaccessible. It may be difficult to claim social welfare benefits. Interest on any outstanding loans may increase. Mortgage arrears may increase and, in some cases, the sale of a family home may be prevented. It is important, therefore, that some type of interim manager be appointed to ensure there is an efficient system in place to protect the affairs of the missing person and his or her family members, as required.

There are important issues to consider. For instance, what is the situation for spouses or civil partners who may wish to move on with their lives after a period of time? Are such persons classed as still married or being in a civil partnership? What will happen to any legal entitlement to any assets from the affairs of the missing person? The Law Reform Commission report states that the law should be responsive to the complexity of consequences that arise in these situations and is of the view that the current position does not meet the requisite standard. In considering this legislation we must be mindful of the anguish of families, while at the same time seeking to protect the legitimate interests of the missing person. Provision must also be made in the event of a missing person turning up after being missing for a lengthy period, although such scenarios are few and far between. The Law Reform Commission recommends that an insurance bond be taken out in order to cover any financial loss to the missing person that may arise. Such a measure should be incorporated into the Bill.

There have been several high-profile missing person cases in Ireland over the years. These include the women who went missing in the Leinster area in the 1990s and the disappeared in Northern Ireland. Somebody knows something about these and other cases. I urge anybody with any information to notify the Garda and thereby help to put an end to the long-term suffering and pain of the families. I take the opportunity to commend the missing persons helpline for its work in supporting families whose loved one has gone missing. If there are people who do not, for whatever reason, want to be found, they might consider contacting the helpline. The people who run the service can act as intermediaries in passing on a message to worried families, thus relieving some of their anxiety and stress.

This Bill will require a lengthy and comprehensive debate in this House. I thank Senator Colm Burke for bringing the issue of missing persons to the fore in order to protect their best interests and those of their families.

I welcome the Minister, Deputy Alan Shatter, and acknowledge the work done by Senator Colm Burke in bringing forward this finely balanced legislation. It is evident that the Senator and those who assisted him have given a great deal of time to considering the complexities and uncertainties which apply when it comes to missing persons and their families. I have raised the plight of people whose loved ones have gone missing on several occasions in this House. Each time I go to a railway station or walk the streets of Dublin and see the tattered bills hanging on poles with photographs of people whose families are seeking information on their whereabouts, I am struck by the limbo in which these people are living. It is not just the uncertainty of their loved one being missing or their not being able to grieve; it is the difficulties they face in trying to maintain some type of normal life.

As we know, bureaucracy can be very obstructive, particularly where the relevant legislation is inadequate or non-existent. It is quite easy to walk away from issues such as these, uttering sentiments of compassion before moving on to the next story.

Senator Colm Burke has got behind the headlines in this. He realises as well that there are different stories relating to missing persons, for example, young people who in care have gone missing and, in the case of families, a spouse might have gone missing. He has encapsulated all of those issues quite well in the legislation before us.

My belief over the years, as I have said each time I have spoken on this in the House, is that I would first like to find some type of resolution for the people before we deal with legislation. I am not saying An Garda Síochána has not been doing good work in this regard, but having spoken to the families of people who are missing, and in some cases it appears they have been murdered, I began to realise that even from the point of view of investigating cold cases, a very urgent approach is required. There must be focused people involved in the investigation, and the investigation must be active at all times. Just because a long period of time has elapsed we should not take it for granted that answers cannot be found. Answers can still be found but what is required is a dedicated unit working on it, as well as whatever finance is required.

I accept that a helpline, which is long overdue, is very important. It certainly brings comfort to the people concerned when they can speak to somebody. However, more than that is required. There should be constant contact between the forces of law and the people who are still waiting for answers. I am not suggesting there is anything contrary to that in the Bill, but I am taking it back a step because I believe a great deal can be achieved. At times, in some of these cases one reads in the newspapers that a new line of inquiry is starting, particularly in the case of the unfortunate women who disappeared in a particular area. It is sometimes suggested that there is a link between those cases, but I believe the families at this stage have given up hope of finding them alive. That said, as long as they do not know what happened, there will be continuing trauma for them.

With regard to the detail of the Bill, it is very important to consider situations whereby if a family finds itself in that position, there is a legal opportunity for them to get their affairs in order. What we are discussing, without even going into the issue of life insurance or matters of that nature, is the legal opportunities they require. In most of the cases, the families have probably given up all hope and expect to be in a limbo until the end of their days. That is very sad. For that reason the legislation is very welcome. There are almost 400 people involved, which is a huge number. However, it is also an opportunity to work directly with them.

If the Bill is accepted and goes through all Stages, although I do not know what the outcome will be, it should not just be a matter of passing legislation. There should be a personal forum for the people involved, in order that they can get advice on what can be achieved. They might still not be capable of understanding what the opportunities are and there might be extra information available once they start to consider what options they have. I hope there will be an opportunity to meet some level of the Government to discuss, as has happened in other cases, what the methods and costs are likely to be. Finance will be an issue for these people and they should be able to avail of any of the legal processes provided to them. That personal approach will not solve all the cases but it will help the families. I have spoken to some of the families and they are lovely people. They do not criticise anybody, they are just suffering morning, noon and night. Their family life has virtually come to an end. Even to get a letter, as I discovered when I wrote to some of the families, generates absolute gratitude simply because one made contact. I am not important enough to represent anything that might lead to some conclusion for them, but I hope the legislation will have that link to the community.

There was reference to the disappeared in Northern Ireland. Ten bodies have been located but seven have not. I did not know I would be speaking on this legislation this evening but I spoke on the Order of Business this morning about comments made by the Attorney General for Northern Ireland. I made the point that if we want the peace process on this island to come to fruition, it is vital to realise that it is about far more than just structures and policies. It is about decency and humanity. In any conflict situation the people who are bereaved and left behind suffer for the rest of their lives. I have long believed that if there had been a truth and justice or a truth and reconciliation commission, we would have built much more carefully towards what should have been done after the conflict had finished. We missed that opportunity. There might have been reasons for that which we do not understand, but I still believe it should not be ruled out. However, the suffering of the people who are waiting for the remains of those seven people to be found has to be immense. As with all cases of missing persons, the fact that there is no body to bury or grieve over is like a second death. I hope and expect that in the near future progress will be made in discovering those seven bodies. There are many tragedies and many stories behind each tragedy, but one cannot walk away from any part of it. If one does not respond to each issue, whether it is the disappeared or missing, it will always be there and one will not have brought everybody along with the efforts being made.

I compliment Senator Colm Burke on the work he has done. It is a finely balanced Bill. As we debate it further, it will become evident that many of the questions that arise about the complexities of operating legislation such as this are answered in the Bill.

I welcome the Minister and commend Senator Colm Burke for taking the initiative in introducing this Bill. I am glad that it will have the support of both the Minister and colleagues on all sides of the House.

All of us recognise the need to take action on this issue. Senator Colm Burke referred to a number of the other initiatives that have already been taken in this area. I am a member of the justice committee which produced a report on missing persons in May 2012, following a series of hearings the committee held with groups and individuals who had direct experience of the tragedy of a missing person and who had done a good deal of work on it. The Senator also mentioned the transition year students of Davis College, Mallow, who gave very impressive evidence to the committee. They had produced a forget-me-not calendar and had done a great deal of work on highlighting the issue of missing persons. Among a number of ways to address this issue was a recommendation of a missing persons day, a recommendation we adopted in our report. I am glad that recommendation is being acted upon and that there will be a national missing persons day.

Members of the Law Reform Commission also appeared before the justice committee during the hearings. They had produced a consultation paper on this issue and subsequently, last January, produced a report on the civil law status of missing persons, which has greatly influenced and shaped Senator Colm Burke's Bill.

The Bill is highly significant and a great deal of work has been done on it. It clearly deals with many procedural matters that were highlighted in the Law Reform Commission report, in particular the presumption of death order. There is a lacuna in the law in this area. Where a family member is missing, there is a difficulty in resolving the civil status of that person and the Bill would address that key issue.

Our report dealt with a number of other issues. We were not specifically considering civil status because we were conscious that the Law Reform Commission was doing work on that issue. We were dealing in a more general sense with the challenges and difficulties encountered in the search for missing persons. When we were conducting the hearings, we were very conscious of the numbers involved, as others have mentioned. In 2012, we were told that the number of persons reported missing to the Garda over the previous five years was 40,500. Senator Hildegarde Naughton referred to different categories of people who went missing. At the time, we were told that, sadly, a large number went children missing from care but, happily, the majority of them were located and found to be safe within 24 hours.

Other groups of people who go missing include those who have medical conditions and adults who wish to start a new life and do not wish to be found, which is clearly a very specific category. Reflecting on what the committee was told by gardaí and representatives of other agencies, State and voluntary, I think the Bill is applicable to adults who go missing. One of the issues we might address on Committee Stage is whether there should be a different way of treating the serious issue of children who go missing.

Apart from the recommendation on having a national missing persons day, the other recommendations we made included the establishment of a helpline for those wishing to report a missing person. I know we have had debates in this House on that issue and a good deal of work has been done on it. We also recommended enhanced co-operation between the Garda, the relevant State bodies and the recognised NGOs, and the possible involvement of mobile telephone service providers in the provision of the amber alert which people mentioned.

We also talked about the need for a public information process, which the students in Davis College had been strongly advocating. We called for this to include the delivery of a fact sheet to all homes in the State providing details of helplines. We also recommended the provision of a place of remembrance for the families of missing persons, which was recommended strongly to us by those who had had direct experience, as a way for them to mark the tragedy that had occurred in their family.

Senator Colm Burke has done a great deal of work. The presumption of death order is the critical focus of much of the Bill. It would be vital to introduce rigorous tests before a court could make that order. On Committee Stage we will need to interrogate the process for application and the test to be satisfied in an application for a presumption of death order. I know we can work on that sort of detail on Committee Stage. It is great that the Bill is approved in principle by all Members of the House.

I welcome the Minister. I particularly welcome Senator Colm Burke's initiative which has us all in agreement. His Bill addresses a clear lacuna in the law governing the management of the estate of a missing person presumed dead and is in keeping with the recommendations of the Law Reform Commission's report, Civil Law Aspects of Missing Persons, which was published in January. As Senator Colm Burke stated, between 7,000 and 8,000 people are reported missing each year in Ireland, which is almost 20 every day. Thankfully, the majority turn up or are found within a very short period. Less than 1% remain missing indefinitely. According to the most recent figures from the Garda missing persons bureau, of the 62,462 people reported missing between 2003 and 2011, 382 remain missing.

The Bill deals with the civil law status of long-term missing persons and allows for the making of a presumption of death order in two cases: where the death is virtually certain or where the length of disappearance indicates that the person is dead and will not return. The Bill before us is important not just from a practical point of view in allowing a spouse, civil partner, cohabitant or other family member of the missing person to manage his or her estate and tie up loose ends, but also in facilitating the grieving process. All too often the family and friends of a long-term missing person are left in perpetual limbo with no movement or opportunity for closure, even in circumstances where death is virtually certain or the length of time missing suggests the death of a person.

While cross-party support is very welcome, I hope it means we can progress the Bill through this House and the Lower House without delay. It must be unbearable to have a loved one missing. The Bill would allow the State to play a small supportive role in an absolutely unbearable time for a family. While the numbers seem relatively small, we know the effect each missing person has on his or her direct and extended family and local community.

I wholeheartedly support the Bill and will support it throughout each Stage. I agree we need to ensure the process is robust. I welcome the initiative taken by Senator Colm Burke. All too often we see reports published without action. It is very welcome he has taken the initiative of bringing the Bill before the House.

I welcome the Minister, as always. I thank Senator Colm Burke for his Bill. Those of us who know the Senator know him for his thoroughness and conscientiousness, and those characteristics shine through in the Bill. Like the other speakers, I welcome what we are doing. Senator Jillian van Turnhout has just said how important these events are. I remember the little posters and scripts for Trevor Deeley throughout town as his family searched for him. I believe he disappeared very near this building. I also think of Jo Jo Dullard who was so liked by her family and wanted to be with them that she was trying to get home one night and was last seen near Castledermot. We should reach out to the families who so sadly miss people such as the two I mentioned.

It is important we assist those who are grieving without confirmation or evidence of the death of their friend or relative. Senator Ivana Bacik mentioned a day of remembrance and perhaps a place of remembrance. Should we consider a section in graveyards and cemeteries for those who do not have a body but would like to go there to remember the spirit of those who they know in their hearts have departed? The importance of that was illustrated when the well-known broadcaster and graduate of UCC, Graham Norton, stated he did not really appreciate west Cork and Ireland until he came back for his father's funeral and realised that Cork meant much more to him than London where he lives for most of the year. It is important for our society that we assist those who have had this grievous loss and who are, as other speakers have said, left in that limbo for the seven years.

I welcome the sections that provide for access to bank accounts to pay utility bills within 90 days and the manager to operate the estate for two years with the possibility of renewal for two years. Section 4(13) provides that a coroner can make a presumption of death, which is useful to the Minister and to us as a deliberative assembly. Coroners have experience and if they are able to make such a recommendation, I would reckon that in 99% of cases in these circumstances we may take it that the person could be safely declared as dead - virtually certain as outlined in the explanatory memorandum.

The current situation is cruel because of the weight of the seven year requirement, which we are addressing.

I welcome the indication that the Minister will also be supporting the Bill. That is commendable and shows again the valued role of Parliament in assisting people who badly need our assistance in these matters.

What kind of things might we consider? The Bill provides for the Attorney General to keep a register of presumed deaths. Could the Attorney General review the long-term cases for the purposes of offering presumption of death orders to family members? How much of this process would he wish to be the guardian of and how much of it would the Minister want him to be in charge of? In respect of some of the ways in which banks operate, will this section deal with access to bank accounts to pay utility bills? We might look at that in the future to see if the legislation should oblige the banks to release the money to the family once an interim manager has been appointed. In respect of deaths abroad, if our expertise in the Department of Foreign Affairs and Trade and consulates can assist this process by saying that person X was in the area where a tsunami, hurricane or typhoon took place, we could allow the Department in its reflective judgment to certify that a missing person was dead rather than putting the expense of visiting those countries on the relatives. We might consider letting the Department register a death overseas and issue a certified copy of the register to the General Register Office.

Those are just suggestions. It is an important part of life which Parliament can assist. We all agree that seven years is too long a period to wait in a situation of grief and stress. I am very proud to be associated with Senator Colm Burke's Bill which I commend to the House.

Cuirim fáilte roimh an Aire. Ba mhaith liom tréaslú leis an Seanadóir Colm de Búrca, mar atá déanta ag mo chomhghleacaithe, as ucht na reachtaíochta seo a thabhairt chun cinn. Is mian liom a rá freisin go mbeidh Sinn Féin ag tacú leis an mBille. I might add a story from my own family to the debate. An aunt of mine disappeared. She was my mother's oldest sister who went to London when she was only 18 or 19 years old. We lost contact with her. My mother's family had absolutely no contact with her and we did not know what had happened. This continued for 30 years and a brother of mine made numerous attempts through the authorities, the Salvation Army and the Terry Wogan show in Great Britain to find my aunt. He had no luck whatsoever so in one sense, I can relate to that sense of not knowing what had happened.

My mother always wondered what had happened to my aunt. Thankfully, we had a happy ending to the story. A cousin of mine happened to be at a bus stop in London one morning and often met this man who owned a carpet shop in London. She struck up a conversation with him one morning. He was Cypriot and asked my cousin where she was from and about her family. She explained that her family was from Connemara and he said "That's interesting. I'm married to a woman from Connemara." It turned out to be my aunt. It was a complete fluke of a meeting but it is a true story. My aunt did come back and, thankfully, she had been alive. There was no particular reason for losing contact. She just built her own life, got married and had two children who are older than me. She passed away recently at a ripe old age. She had been repatriated with the family.

In a sense, it gives credence to the opposite side of the argument that the disappeared, thankfully, do reappear in some cases and it can be out of the blue and through amazing experiences. We also obviously realise that there are cases where there is no happy ending to the story. Senator Colm Burke's Bill addresses that hiatus in the law and we support it. I am glad the Government will accept the Bill on Second Stage and possibly bring forward amendments on Committee Stage. The crux of the Civil Law (Missing Persons) Bill 2013 is to help families of missing persons to deal with the management of their estates. As the law stands, there is no legal procedure in place to allow for the management of the estate in cases where it is clear from all evidence that the person has died.

This change makes practical sense. We should be striving to make things easier for families of missing persons who have already come through so much trauma. The two categories of missing persons are well defined within the Bill and I welcome this as a means of making it easier to identify to whom this Bill relates. Earlier this year, the Law Reform Commission stated the need to have a statutory framework to deal with some immediate practical problems for family members. The commission pointed out that there was a particular need to allow access to a missing person's bank account, particularly where the account was in the person's sole name, in order that bills could be paid. The commission also recommended that legislation be enacted to allow the family left behind to apply to the Circuit Court after a person had been missing for 90 days to allow interim management of the missing person's property. This would allow the family to pay bills or renew insurance on a car or motor bike. This process could be in place for up to two years with a possible extension of two or more years. The commission's report also recommended the reform of the law on presumed death, in particular to ensure that families can, as far as possible, deal in the least expensive way with the emotional trauma of their loved ones going missing. I welcome the fact that the Bill is giving life to many of the recommendations in the Law Reform Commission's report on civil law regarding missing persons. It is very important that this Bill has been brought forward.

I will touch on the issue of the disappeared. There is quite a bit of innuendo around this issue when it is raised in the political arena and certainly in the media. On behalf of Sinn Féin, I state categorically that it is a massive issue. There is great trauma and hurt relating to the disappeared. I also wish to categorically state that any member of my party who had any information on the disappeared has given it to the relevant authorities and we have co-operated fully and will continue to do so if called upon. This has been backed up on numerous occasions by the independent commission. Everything we can do has been done. I know our leader has met the families of all of the disappeared, which has not been brought across in some of the media coverage.

Ba mhaith liom tréaslú arís leis an Seanadóir a chur an Bille seo os ár gcomhair, agus freisin tacaíocht Shinn Féin don reachtaíocht a léiriú uair amháin eile.

I was very interested in Senator Trevor Ó Clochartaigh's story about his family member. One wonders what she thought the rest of her family was doing when she disappeared. This is one who disappeared to reappear 30 years later. It is an insight into the difficulties in this area.

I 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 the Senator's Bill in principle. Obviously, there will be issues on which we will seek amendments when the Bill is considered in due course on Committee Stage. As Members are aware, I am a strong advocate of Private Members' Bills, having introduced many such Bills in the Dáil during my career and I look forward to bringing the enactment of this Bill to a successful conclusion during the lifetime of the Government and assisting the Senator in that regard.

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 provide a mechanism for closure in legal terms. There is provision in Irish law to address some of the civil issues that arise when a person goes missing. The Coroners Act 1962 gives me as Minister for Justice and Equality the power to direct the coroner to hold an inquest where death has occurred and the body has been destroyed or is irrecoverable. As Members are aware, there is also a common law presumption that if a person has been missing for seven years and has not been in contact with family or friends and if reasonable efforts have been made unsuccessfully to locate them, the High Court may make an order that the person be presumed dead.

As Members are aware, there is also a common law presumption that, if a person has been missing for seven years, has not been in contact with family or friends and 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 can make a declaration of presumed death earlier if the evidence suggests it is highly likely the person is dead. This declaration of presumed death is usually made for probate purposes. 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, therefore, not issued. Moreover, the person's marriage or civil partnership is not ended as a consequence of the declaration.

Senator Colm Burke's Civil Law (Missing Persons) Bill, therefore, addresses an issue in 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 whereby 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 United Kingdom 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 being experienced by families in these circumstances.

The Law Reform Commission report on the civil law aspects of missing persons, published only in January of this year as mentioned by some Senators, launched the debate advocating further legislation in this area. I thank the Law Reform Commission for highlighting the need for action to tackle this issue. The commission's report suggested 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 that would provide for a presumption of death order both for those whose deaths are virtually certain and for those whose deaths are highly probable. Stringent proofs would be required under a range of specified headings when an application for a presumption of death order would be 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 to 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 such orders are issued in the appropriate circumstances. It is always difficult when we do not have irrefutable proof that a person is actually dead. It places an enhanced responsibility upon us to ensure a presumption of death order is issued only when it is evident the person is dead on the balance of probabilities.

Those who go missing, however, are not always dead. We have heard a very stark illustration in that context in this debate in the Seanad. There are many cases each year of people who go missing but who are alive. These can be young people unable to deal with the dynamics of relationships in the family home, mature people seeking to escape stressful situations or people seeking a new life and quite prepared to establish one, cutting their contacts with neighbours, friends and relations. They may evaporate from their usual environment to sample a new life elsewhere, either temporarily or permanently. There may even be people whose whereabouts are unknown to their families but who use social media or other means to confirm 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 and disappears but who 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 statutory provision. 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, so-called, to manage the estate of a person who has been missing for more than three months. Similarly, the recently enacted Presumption of Death Act 2013, which applies to England and Wales, focuses on missing persons who can be presumed dead. Senator Colm Burke's Bill seeks to encompass both categories of missing person. We will need to consider the scope of this legislation carefully to ensure 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 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 and well-being". Our primary purpose in the legislation, however, 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 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 to impose a minimum waiting period requires careful attention. The Council of Europe has recommended that only where the missing person's death can be taken as certain should there not be a minimum waiting period. The Council of Europe's deliberations on this issue came in the aftermath of the tsunami disaster of 2004 and the terrorist attacks of 11 September 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 Colm Burke's Bill removes the requirement for a minimum waiting period. When deciding whether to issue a presumption of death order, the court's judgment 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 to dispense with a minimum waiting period. This is an interesting issue we need to tease out carefully. 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 must ensure 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 we enact must 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, relationships, 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 Colm 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 also 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 that are appropriate and necessary on Committee Stage.

I hope both Senator Colm Burke and other Members of the House will understand when I say that this process will take a minimum of 12 months because of the complexity of the issues to be addressed and the importance of taking a careful and considered approach. In addition, the timescale is due to the current legislative priorities which include completing enactment of the Legal Services Regulation Bill, progressing and enacting the proposed children and family relationships Bill, the immigration, regulation and asylum Bill, and the courts Bill which is required to establish the Court of Appeal. However, I assure the House and Senator Colm Burke that it is my objective to ensure that this legislation, with appropriate and necessary amendments, will be enacted during the lifetime of this Government, I hope during the first part of 2015.

I congratulate Senator Colm Burke on putting such an important issue on the legislative agenda and on 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 thank the Senator, in particular, for his initiative and the work he has undertaken. I look forward to working with him to refine this legislation as it passes through the Houses of the Oireachtas.

I draw the attention of Members of the House to our first national Missing Persons Day, which is scheduled to take place on 4 December. It will be marked by a ceremony which I hope can be live streamed on the web. We are laying a foundation stone in this State for an EU-wide missing persons day that will be joined by other member states in years to come. We are engaged with some of our EU colleagues who are watching our proposals in this regard. As was illustrated this evening, when people go missing in any member state, they may establish new lives in another member state. The objective of the Missing Persons Day is to draw people's attention to the fact that people are missing. The objective is also to encourage the print and broadcasting media to highlight the situation of certain selected individuals who have gone missing in the hope that the information will attract media attention across the European Union. If individuals from one member state establish new lives in another member state, they will receive notice that family or friends are still trying to make contact with them and are anxious to know of their whereabouts and well-being. The project will generate an EU-wide focus on re-establishing relationships with missing persons who may, for a range of reasons, have established an alternative life elsewhere. It will create the possibility for them to reconnect with lost relations and friends.

I again thank Senator Colm Burke for his welcome initiative. He has started an important legislative process and once the Bill is enacted, it will prove to be of assistance to families for decades to come.

I thank the Minister for his comments. I also thank Senators who have contributed to this debate, including Senators Hildegarde Naughton, Labhrás Ó Murchú, Ivana Bacik, Jillian van Turnhout, Sean D. Barrett and Trevor Ó Clochartaigh, for their constructive comments. This is only the start of the process and I fully agree with what the Minister said in that regard. He said the legislation we enact must put in place a robust system that can address civil law issues and be capable of withstanding challenges. I fully agree with him that it is a complex area and constitutional issues must be examined carefully. I fully understand his Department's position that it will take time.

In August I had the privilege of meeting Mr. Cooney from the Department of Justice and Equality, who has since retired. I had a discussion with him and he was extremely helpful. I wish to thank both him and other departmental officials for their observations at that stage.

I acknowledge the work of the Joint Committee on Justice, Defence and Equality in this area. In addition, the Law Reform Commission has produced a comprehensive report. The legislation I have brought forward is very much based on the commission's own draft proposals. I wish to thank the commission's members for their contribution.

I have discussed the matter with Ms Maria Baker, SC, who has offered to give her assistance on this matter. It is important for us to work together on the outstanding issues. There is no doubt that there will have to be amendments to the Bill because it deals with a complex area. Once the Department and the Office of the Attorney General have carefully considered the legislation, they will be bringing forward constructive amendments. I do not think we will have any difficulty in accepting them. We need to deal with this area, although it only affects a small number of people annually. As the figures provided by Senators Jillian van Turnhout and Hildegarde Naughton show, however, in the past ten or 11 years over 382 people have gone missing without trace. It is important for their families that we should move forward with this legislation.

I thank everyone, including the Minister, for contributing to the debate.

Question put and agreed to.

When is it proposed to sit again?

Next Tuesday, 26 November 2013, at 2.30 p.m.