Civil Law (Missing Persons) Bill 2016: Report and Final Stages

Bill recommitted in respect of amendments Nos. 1 to 50, inclusive.

Amendments Nos. 1 to 4, inclusive, 7, 9, 13, 30 to 32, inclusive, 35, 36, 38, 41, 43 and 44 are related and may be discussed by agreement. Is that agreed? Agreed.

Government amendment No. 1:
In page 3, lines 5 to 7, to delete all words from and including “effects” in line 5 down to and including “the” where it firstly occurs in line 7.

I thank the Seanad for taking this important legislation today.

I acknowledge the work of Senators Colm Burke, Lynn Ruane and Marie-Louise O'Donnell on this Private Members' Bill. I am very pleased that we have been able to progress matters to the current Stage. The Bill, as presented, provides for the effects in civil law of persons who are missing, including arrangements for the interim management of the property of the missing person. At its core, however, is the making of provision for the civil status of missing persons where the circumstances of their absence are such that their death is virtually certain or highly probable.

I propose these amendments with a view towards focusing the Bill on status issues. It is my view that the management of the property of a missing person requires a more rigorous framework than set out originally in the Bill. I am proposing the deletion of all references to "interim management of property", including from the Long Title. I am proposing a new Short Title to reflect the revised focus of the Bill on the presumption of death. Section 3, which provides for the interim management of the property of a missing person, is proposed for deletion in its entirety.

The final substantive amendment I am proposing in this area is to amend the definition of "missing person". I am of the view that the definition of a "missing person" is 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. Given that I am proposing that the Bill should not address the interim management of property, a revised definition of "missing person" is appropriate. The definition I am proposing focuses on a narrower target group of persons whose death is either virtually certain or highly probable. I would ask Senators to accept this for the purposes of clarity.

I acknowledge again, as I did before the arrival of Senator Marie-Louise O'Donnell, the importance of this legislation. Having regard to the fact that it is some time - almost two years - since the Bill was originally published, I hope we can move matters towards a successful conclusion, perhaps by this evening. I am not sure of the Senators' disposition in that regard; I can sit late if they wish. I ask Senators to accept my amendments in the spirit in which they are proposed, namely, to ensure a level of clarity and acknowledging the fact that the Bill is a Private Members' Bill which the Government has accepted. On the matter of the definition of "missing person", which is the most important issue here, the narrower definition I am proposing is in line with best practice for my Department, having engaged in consultations, and also draws on the considerable body of work undertaken by the Council of Europe in this area.

I again acknowledge the work of the Seanadóirí in drafting and tabling this important legislation which will go some way towards meeting what was a difficult engagement for many families and persons who have gone through a very difficult process in terms of social and emotional engagement and of the legal consequences.

I thank the Minister and his officials for the work they have done in bringing forward the amendments. I have gone through them in detail and am quite satisfied in an overall context. They have streamlined what was an initial draft. I have highlighted issues that could cause complications at a later stage. There are one or two issues to which I will refer as we go through the amendments. I do think it is important that we deal with this issue. The most recent matter to which this is of great relevance is the incident off the Mayo coast in which four people tragically died. The remains of two people have been recovered but the remains of the other two people have not. It is in those kinds of circumstances that there is a legal vacuum. If this Bill is passed it will deal with that issue.

In the time of the Minister's predecessor, Deputy Frances Fitzgerald, as a result of the debate here in the Seanad a family contacted me whose daughter had gone missing. All the evidence was that she had died although no body was recovered. The only avenue open to me was to ask the Minister to get the coroner to hold an inquest. In fairness, the Minister did follow up and, as a result, an inquest was held. All of the procedures that could be carried out were completed for that family. Although the number of families affected in this way in any one year is quite low, the legislation will also be important for those families. Similar provisions have been up and running in Scotland for over 40 years and are in place in other jurisdictions as well. We need to have these provisions in place to deal with very tragic circumstances where all the indications are that the person has died.

Fianna Fáil is supporting the Bill and recognises the importance of legislation in this area. We welcome the Bill and hope it can be progressed as quickly as possible. I was a little taken aback to see there were no amendments submitted on Committee Stage. To have a tranche of amendments on this Stage is a little unusual. Having said that, I am encouraged by and will take guidance from the fact that my colleague, Senator Colm Burke, is supporting the amendments. I am aware of the amount of work he has put into the Bill with the Department. Given that he is supporting the amendments, we will also support them.

I thank Senator Colm Burke for asking me to co-sign the Bill. Senator Marie-Louise O'Donnell and I did not have to do much; Senator Colm Burke has been working for a long time on getting the legislation through. I was delighted to support him.

I have one question for the Minister which is more for my own understanding. Perhaps I need to go away and do research and the answer might be there for me to find. When Senator Burke talks about events off the coast of Mayo and other more certain circumstances, I wonder how, when the definition is narrowed - I have no issue with it being narrowed - "virtually certain" and "highly probable" are to be determined. Does there need to be a long investigation by the Garda and for the Garda to say it is highly probable? What exactly is in place to make that determination in situations that are a little less clear cut?

I was privileged to be part of the Bill. Senator Colm Burke led the way legally, parliamentarily and in every other way, language-wise, with the Bill.

I learned a significant amount. The Minister is correct that Senator Burke, among others, has been waiting for two years for the Bill to be progressed. In the meantime, I wrote a big report for the Government on dying, death and bereavement and it was interesting that people's fears about their loved ones being lost and being in a legal limbo arose in that regard. I congratulate Senator Burke and am happy to support the amendments if he is happy with them from a legal point of view. I thank the Minister for seeing the Bill through to this Stage. I will go along with what Senator Burke has to say about the amendments. I look forward to the Minister's answer to Senator Ruane's question on the need for the Garda to say a death is highly probable.

On the point raised by Senator Paul Daly, I do not wish to interfere with or intervene in the Standing Orders or procedure of the Seanad but there may be another opportunity to table amendments now that the Bill has been recommitted,. I very much regret if Senator Daly believes he has been taken short by the debate this afternoon. As always, I am very keen to accommodate Senators in every way possible, but the fact that we are now technically in committee-----

We are on Report Stage.

-----may give rise to a further Report Stage. If not, my understanding is that the Bill will go to the Dáil, which would give the Senator and his colleagues an opportunity to table amendments. I hope to be as accommodating as possible of Senators, as I always try to be.

On Senator Ruane's question, it will be a matter for the courts, having regard to all the circumstances surrounding the events, to define what is highly probable on a case-by-case basis. That may be the best way of dealing with the matter.

Does Senator Devine wish to contribute on amendment No. 1? The Senators and the Minister seem to be in agreement.

I think we are in agreement and will not require a vote on the amendment. I welcome that there is movement on the Bill and that it is progressing through the Seanad and hope that it will quickly progress through the Dáil. I wish to put on the record my acknowledgement of the good work done by Senators Colm O'Rourke, Marie Louise O'Donnell and Lynn Ruane in highlighting and championing the need for reform in this area.

I think the Senator meant to refer to Senator Colm Burke rather than Colm O'Rourke.

Senator Colm Burke.

Yes, of course. I thought that was what the Senator said. Forgive me.

Senator Devine said "O'Rourke".

Did I say O'Rourke? I apologise to Senator Colm Burke and the Leas-Chathaoirleach.

Amendment agreed to.
Government amendment No. 2:
In page 3, line 7, to delete “the” where it secondly occurs and substitute “a”.
Amendment agreed to.
Government amendment No. 3:
In page 3, line 7, to delete “their” and substitute “his or her”.
Amendment agreed to.
Government amendment No. 4:
In page 3, between lines 9 and 10, to insert the following:
“PART 1
PRELIMINARY AND GENERAL
Short title and commencement
1. (1) This Act may be cited as the Civil Law (Presumption of Death) Act 2018.
(2) This Act comes into operation on such day or days as the Minister for Justice and Equality may appoint by order or orders either generally or with reference to any particular purpose or provision, and different days may be so appointed for different purposes or provisions.”.

On amendment No. 4, the-----

The amendment has already been discussed with amendment No. 1.

I wish to raise a technical issue.

The amendment inserts Part 1, which states "This Act may be cited as the Civil Law (Presumption of Death) Act 2018." Amendment No. 50-----

This is a Government amendment.

We are on amendment No. 4.

I know that. This is a technicality. Amendment No. 50 states "‘Act of 2018’ means the Civil Law (Missing Persons) Act 2018".

The Senator is pointing that out for clarification.

We can refer back to that change at a later time. It will be dealt with.

Amendment agreed to.
Government amendment No. 5:
In page 3, between lines 11 and 12, to insert the following:
“ “Act of 2010” means the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010;”.

Amendments Nos. 5, 6, 27, 29, 46 and 49 are related and may be discussed together.

A presumption of death order should be conclusive insofar as the end of a marriage or civil partnership is concerned. These amendments deal with the issue of marriage. Following discussions with the Office of the Attorney General, I am proposing in amendment No. 46 that either party can apply to the High Court for a rather novel form of declaration which, if granted, would have the effect of treating the marriage or partnership with a formerly missing person as one where a decree of divorce or a decree of dissolution had been granted. This would not have the effect of reviving the marriage or partnership nor would it impact upon the status of any new marriage or partnership where relevant. However, the provision would allow the parties to plug into existing family law arrangements such as maintenance or access. I am advised that a provision of this nature would make a constitutional challenge less likely than the absolutist approach of simply bringing the marriage or partnership to an end. I ask Senators to accept that amendment.

I agree with amendment No. 46. It is important because we must be very careful of constitutional issues. The amendment has been very carefully drafted and takes that issue into account and I very much welcome it.

Amendment agreed to.
Government amendment No. 6:
In page 3, to delete lines 13 to 16 and substitute the following:
“ “civil partner” means a person in a civil partnership or legal relationship to which section 3 of the Act of 2010 applies;
“cohabitant” means a cohabitant within the meaning of section 172(1) of the Act of 2010;
“Court” shall be construed in accordance with section 9;”.
Amendment agreed to.
Government amendment No. 7:
In page 3, to delete lines 18 to 21 and substitute the following:
“ “missing person” means an individual whose existence has become uncertain, because he or she has disappeared without trace and there are no signs that he or she is alive.”.
Amendment agreed to.
Government amendment No. 8:
In page 3, between lines 21 and 22, to insert the following:
“Expenses
2. The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Public Expenditure and Reform, be paid out of moneys provided by the Oireachtas.”.

To address any doubt in regard to the previous amendment, it creates a situation broadly similar to that in the United Kingdom. Amendment No. 8 deals with expenses and is a standard provision which Senator Colm Burke and the other proposers of the Bill will concede was not addressed in the original Bill. Senators will also agree that this is standard practice and a standard provision.

On a technicality, the amendment now becomes section 2. I presume that section 2 of the original Bill will become section 3.

As a consequence, yes, and that will be reflected in the Bill as passed.

Amendment agreed to.
Government amendment No. 9:
In page 3, line 24, to delete “section 3 and”.

Is the amendment agreed?

The Senator is not agreeing to it?

I would be against the amendment but will not be pushing for a vote on it.

The Senator is against amendment No. 9?

Amendment No. 9, yes. Is that okay?

Okay. Does the Senator want to say anything about it? It was already discussed.

Not really, I just think that many of the amendments that Sinn Féin will not be supporting are technical and unnecessary.

I take the Senator's point. I think the question is carried.

Amendment agreed to.
Government amendment No. 10:
In page 3, line 28, after “sister,” to insert “half-brother, half-sister,”.

Amendments Nos. 10 to 12, inclusive, are related, and may be discussed together by agreement.

This relates to the matter of applicants in section 2. Senators will see that section 2 of the Bill specifies the persons who may apply for an order under the provisions of the Bill or the Act, as it will be. Amendment No. 10 inserts a specific provision for a half-brother or half-sister to be an applicant. This is in line with the provision in legislation in Northern Ireland relating to applicants who are close relatives, in the context of the Disappeared, for example. It makes common sense. None of the legislation in comparable jurisdictions, including England, Wales, Northern Ireland and New Zealand, has an explicit reference to a creditor as an applicant as is currently contained in section 2(f). I have formed the view that such a reference could, in certain circumstances, be misinterpreted. Accordingly, amendment No. 12 proposes to delete "creditor". Amendment No. 11 is a technical amendment relating to the deletion of "creditor".

I welcome amendment No. 10. It was obviously left out and I welcome the addition of half-brother and half-sister. It is a technicality and an important addition.

This might seem like a strange question. I look at this and see "half-brother" and "half-sister". Are those official terms used for family? Where are they laid out? Where does that come from? Is that something that has been used as a description but is not actually a legal term to describe a family? Is it something that we have applied to siblings ourselves? What do we recognise half-siblings as? My two daughters have the same mother but would not consider themselves half-sisters, but sisters. Is it different if they grow up in the same household or are children of the same father? I am sorry to confuse the issue. I wonder what it applies to. My daughter would have other siblings belonging to her father. If there were half-siblings belonging to the father who never had a relationship with each other and never grew up in the same household, they would say they were half-brothers and half-sisters because their father happened to have a load of kids in various different parents of Dublin and they are technically seen as half-siblings. Is there a definition of half-brother and half-sister?

These definitions have been accepted in law for a long time and would indeed be a consequence of the Succession Act with regard to entitlements under succession and establishing relations, whether by blood or accepted practice, and other aspects of legislation which were overlooked or omitted in this Bill but, in the circumstances, would reflect what is in essence an important interested party. The interest relates to familial contact.

Amendment agreed to.
Government amendment No. 11:
In page 4, line 1, after “person,” to insert “or”.
Amendment agreed to.
Government amendment No. 12:
In page 4, to delete line 2.
Amendment agreed to.
Government amendment No. 13:
In page 4, to delete lines 5 to 35.
Amendment agreed to.
Government amendment No. 14:
In page 5, lines 15 to 17, to delete “fruitless” in line 15 down to and including line 17 and substitute “fruitless;”.

Amendment No. 14 relates to evidence in section 4 of the Bill and the presumption of a death order in respect of the missing person. The amendment is "In page 5, lines 15 to 17, to delete “fruitless” in line 15 down to and including line 17 and substitute “fruitless;”." I say this because the manner in which evidence should be provided to the courts is a matter best left to rules of court, so I propose the deletion of the requirement in respect of an affidavit, etc. I propose to delete the provision for reliance on the international Convention Abolishing the Requirement of Legalisation for Foreign Public Documents. I have already proposed the deletion of the associated definitions in section 1. These definitions are part of our general law and obligations which flow from them, and will apply in any event whether or not there is specific reference to them in the Bill. Is Senator Burke satisfied with this?

Amendment agreed to.
Government amendment No. 15:
In page 5, line 23, to delete “and”.

Amendments Nos. 15, 16, 24, 25 and 50 are related and may be discussed together, by agreement.

These amendments introduce a measure of clarity and ensure strict coherence with existing arrangements which apply in respect of the registration of life cycle events in accordance with the Civil Registration Act 2004. These amendments have been developed following consultation and in close co-operation with colleagues in the Department of Employment Affairs and Social Protection. Amendments Nos. 15 and 16 will facilitate registration of a presumed death in the new register of presumed deaths which is to be established under Part 3 of the Bill. The process envisages an applicant providing the details necessary to register a presumed death as part of an application for a presumption of death order, which will be available from the court. It will be less onerous on the applicant since all the details required for an application for a court order and the registration of presumed death will be captured in a single application or process.

Amendment No. 24 places an obligation on the court to include in the presumption of death order the particulars available to it, which are necessary for the registration of a presumed death in the new register. By virtue of amendment No. 50, those particulars would be set out in the new Part 5B of the First Schedule to the Civil Registration Act 2004. This will have the effect of ensuring that the process is streamlined and that it will ease the burden on those applying for a presumption of death order from the court and, subsequently, presumably in a very short time thereafter, registering that death in the new register of presumed deaths.

Amendment No. 25 deletes the current provisions of the Bill which concern the registration of a presumed death. However, it maintains the idea that a presumption of death order made by a court has the same effect as the registration of a death under section 13(1)(d) of the 2004 Act. This amendment acknowledges that an appeal may be brought against the making of a presumption of death order, thus it introduces a stay on the effect of the presumption of death order until such time as the normal period allowed for an appeal has expired which, in the circumstances, is not only understandable but important.

Such a provision is also covered in the equivalent legislation in other jurisdictions. It seems to act as a precaution to avoid inappropriate or presumed entries in the register of presumed deaths.

Amendment No. 50 is the most important in the group. It provides for the establishment of a new register of presumed deaths through a number of amendments to the Civil Registration Act 2004, as amended. The new register will be part of the suite of civil registers maintained by the Registrar General. Specifically, amendment No. 50 inserts a new Part 5B into the Civil Registration Act 2004, as amended, which sets out the registration process and a new set of required particulars in Part 5B of the Schedule to the Act. It is important to note that the amendments introduce a new register to record those cases where a presumption of death order has been issued by the courts. The existing register of deaths will continue to operate.

I welcome the amendments. It is extremely important to create the register in order to have a clear record. The proposed new Part 5B of the Civil Registration Act 2004 sets out all of the information clearly, including the date and place of presumed death and the place of birth of the missing person. It is welcome that all of the relevant information will be added to the register and that a clear and accurate record will be kept as a result.

The registration process for which we are providing will place the onus on a court, once a presumption of death order has been made, to provide for the civil registration service the appropriate details to facilitate the registration of a presumed death. The appropriate registrar of the civil registration service will then formally register the presumed death.

Amendment agreed to.
Government amendment No. 16:
In page 5, line 24, to delete "dead." and substitute the following:
"dead; and
(i) the required particulars contained in Part 5B of the First Schedule to the Civil Registration Act 2004 that are available to the applicant.".
Amendment agreed to.

As amendments Nos. 17, 20, 22, 23, 26 and 28 are related, they may be discussed together.

Government amendment No. 17:
In page 5, to delete lines 25 to 28.

I am proposing these six amendments on behalf of the Government in acknowledgment of the fact that the Bill will give both coroners and the courts a role in the matters in hand. Presumption of death orders should only be made by a court. Other associated matters should also be dealt with by a court. I do not envisage a role for coroners in matters addressed in the Bill. The amendments propose to delete all references to the Coroners Act 1962 or coroners. I think they will find favour with the proposers of the Bill.

I agree with the amendments. We included the coroner issue in the original Bill because we were talking about two procedures. I can see why the Department and the Minister have chosen to add clarity by providing for these issues to be dealt with by one stream. In the circumstances, it is appropriate that they be dealt with by the courts only.

Amendment agreed to.

As amendments Nos. 18, 40 and 48 are related, they may be discussed together.

Government amendment No. 18:
In page 5, line 29, to delete "Circuit".

As I said when introducing the amendments we have just considered, my view is that presumption of death orders should be made by a court only. Other associated matters should also be dealt with by a court. I am proposing revised jurisdiction provisions in amendments Nos. 40 and 48 because, as amendment No. 40 makes clear, my view is that applications for variation orders under section 7 should be made to the High Court only. The reason for this is that such cases are likely to be extremely rare and, if they do occur, they may well give rise to difficult and often untested legal issues. The High Court will also have jurisdiction where the Attorney General or a person acting on behalf of the State is the applicant, again because of the likely rarity and, in many cases, complexity of such issues. Amendment No. 40 proposes to expand the category of persons who may apply for variation orders. The Bill provides that a formerly missing person shall be the only person who can make such an application. I am taking the opportunity to propose that an applicant may apply for a variation order. Amendment No. 48 takes account of the fact that, where land is concerned, the jurisdiction of the Circuit Court is determined by market value rather than the rateable valuation. The monetary threshold of the market value is currently set at €3 million. Amendment No. 48 also allows for jurisdiction based on the applicant's residence, a position which is consistent with that taken in other jurisdictions.

Amendment agreed to.

As amendments Nos. 19 and 21 are related, they may be discussed together.

Government amendment No. 19:
In page 5, lines 31 to 34, to delete "is highly probable." in line 31 down to and including line 34 and substitute the following:
"is:
(a) virtually certain, or
(b) highly probable.".

As Senators will be aware, these amendments follow directly from the revised definition of "missing person" as someone whose existence has become uncertain because he or she has disappeared without trace and there are no signs that he or she is alive. 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 in question is dead. Given the profound and complex legal consequences of such an order, I consider such a distinction to be appropriate and necessary in these circumstances.

Amendment No. 21 addresses some concerns I have about section 4. It does not specify a waiting period for an application for a presumption of death order. In that context, it would be appropriate to draw a distinction between deaths which are virtually certain and deaths which are highly probable. The amendment reflects the recommendation of the Council of Europe that there not be a minimum waiting period where the missing person’s death can be taken as certain but where the body cannot be recovered. For those whose death is likely, the Council of Europe has recommended that a minimum waiting period of a year be accepted.

Amendment agreed to.
Government amendment No. 20:
In page 5, line 36, to delete "the coroner or, as the case may be,".
Amendment agreed to.
Government amendment No. 21:
In page 6, to delete lines 12 and 13 and substitute the following:
"may be made—
(i) where the application is to the effect that death is virtually certain, at any time after a person has gone missing, such application not to be subject to a minimum waiting period, and
(ii) where the application is to the effect that death is highly probable, no earlier than 1 year after the person has gone missing.".
Amendment agreed to.
Government amendment No. 22:
In page 6, line 17, to delete "coroner or, as the case may be, the Circuit Court," and substitute "Court".
Amendment agreed to.
Government amendment No. 23:
In page 6, line 22, to delete "coroner or, as the case may be, the Circuit Court," and substitute "Court".
Amendment agreed to.
Government amendment No. 24:
In page 6, between lines 26 and 27, to insert the following:
"(9) Where the Court makes a presumption of death order, that order shall include those required particulars contained in Part 5B of the First Schedule to the Civil Registration Act 2004 that are available to the Court.".
Amendment agreed to.
Government amendment No. 25:
In page 6, to delete lines 28 to 41 and in page 7, lines 1 to 3 and substitute the following:
"5. (1) Subject to this Act, where—
(a) an appeal is not brought against the making of a presumption of death order within the time allowed for appeal, or
(b) an appeal against such an order is brought and the appeal (or any further appeal) is dismissed or withdrawn, a presumption of death order made by the Court under section 4 has the same effect in law as arises from the registration of a death under section 13(1)(d) of the Civil Registration Act 2004.".
Amendment agreed to.
Government amendment No. 26:
In page 7, line 4, to delete "coroner or by the Circuit".
Amendment agreed to.
Government amendment No. 27:
In page 7, line 5, to delete ", subject to section 7(5)(a),".
Amendment agreed to.
Government amendment No. 28:
In page 7, line 7, to delete "coroner or by the Circuit".
Amendment agreed to.
Government amendment No. 29:
In page 7, line 8, to delete ", subject to section 7(5)(b),".
Amendment agreed to.
Government amendment No. 30:
In page 7, line 11, to delete "section 3 or".
Amendment agreed to.
Government amendment No. 31:
In page 7, lines 11 and 12, to delete "the interim manager appointed under section 3 or, as the case may be,".
Amendment agreed to.
Government amendment No. 32:
In page 7, line 13, to delete "section 4" and substitute "that section".
Amendment agreed to.

As amendments Nos. 33, 42 and 45 are related, they may be discussed together.

Government amendment No. 33:
In page 7, line 13, to delete "court" and substitute "Court".

These are technical amendments. I am not sure of the extent to which they require debate. I ask Senators to accept them as being self-explanatory.

Amendment agreed to.

Amendment No. 34 is a Government amendment. Amendments Nos. 34 and 39 are related and may be discussed together by agreement.

Government amendment No. 34:
In page 7, lines 14 and 15, to delete “section 8(2)” and substitute “section 7”.

This is merely an amendment to what was an incorrect cross reference.

Amendment agreed to.
Government amendment No. 35:
In page 7, line 16, to delete “the interim manager or, as the case may be,”.
Amendment agreed to.
Government amendment No. 36:
In page 7, lines 18 and 19, to delete “, as the case may be, the property of the missing person being managed by the interim manager or”.
Amendment agreed to.
Government amendment No. 37:
In page 7, lines 19 and 20, to delete “being administered by the person who applied under section 5”.

In amendment No. 37, I am proposing to delete the words "being administered by the person who applied under section 5". This is because section 6 requires the applicant to effect a policy of insurance in respect of any claim which might arise from a variation order. It further provides that the insurance premium should be a charge on the estate of the missing person. The amendment proposes the deletion of text which presumes that the applicant for a presumption of death order would always be the person charged with administering the estate, as such a presumption would not always be correct. For example, a will might make specific reference to a named person to act as executor and that would not necessarily be the applicant in all cases. I expect that Senators Colm Burke, Marie-Louise O'Donnell and Lynn Ruane, as the proposers, would accept what I am saying and allow for these circumstances should they pertain.

I welcome the amendment. The issue of insurance will arise but it is important that there is some safety mechanism in place. It is important that a person who takes the decision to apply for such a court order will be able to effect the necessary protection from his or her point of view.

Amendment agreed to.
Government amendment No. 38:
In page 7, line 21, to delete “section 3 or”.
Amendment agreed to.
Government amendment No. 39:
In page 7, line 26, to delete “section 7(2)” and substitute “section 7”.
Amendment agreed to.
Government amendment No. 40:
In page 7, to delete lines 28 to 31 and substitute the following:
“(1) The following persons may apply to the High Court for an order, in this Act referred to as a “variation order”, dissolving or varying the effects of any order made under section 4, that is to say—
(a) a missing person in respect of whom an order has been made under section 4, and
(b) an applicant.”.
Amendment agreed to.
Government amendment No. 41:
In page 7, line 33, to delete “section 3 or”.
Amendment agreed to.
Government amendment No. 42:
In page 7, line 36, to delete “to or in” and substitute “to, or in,”.
Amendment agreed to.
Government amendment No. 43:
In page 7, line 37, to delete “section 3 or”.
Amendment agreed to.
Government amendment No. 44:
In page 7, line 40, to delete “section 3 or”.
Amendment agreed to.
Government amendment No. 45:
In page 7, line 41, to delete “to or in” and substitute “to, or in,”.
Amendment agreed to.
Government amendment No. 46:
In page 8, to delete lines 3 to 14 and substitute the following:
“(5) (a) Notwithstanding the generality of section 5(6), where an order has been made under section 4 in respect of a missing person who was in a marriage or civil partnership that was subsisting at the time that he or she went missing, that person or the person who was party to the marriage or civil partnership at the time that the missing person went missing may apply to the High Court for a declaration deeming them to be—
(i) a spouse for the purposes of the Family Law (Divorce) Act 1996 in respect of whom a decree of divorce has been granted under section 5 of that Act, or
(ii) a civil partner for the purposes of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 in respect of whom a decree of dissolution has been granted under section 110 of that Act.
(b) In making a declaration under paragraph (a), the Court may modify or restrict its effect in any way as, in its view, accords with the interests of justice.
(c) A declaration under paragraph (a)—
(i) shall only apply from the date of any variation order granted under this section, and
(ii) shall not take effect until the time for making any appeal has lapsed or until such time as any appeal (or any further appeal) is dismissed or withdrawn.
(d) Other than in exceptional circumstances, an application under paragraph (a) shall be brought at the same time as an application under subsection (1) for the dissolution of a variation order.
(6) Other than in exceptional circumstances an application for a variation order within the meaning of subsection (1) cannot be made after the expiry of a period of 7 years from the making of an order under section 4.”.
Amendment agreed to.
Government amendment No. 47:
In page 8, to delete lines 15 to 42 and substitute the following:
“Notice of application
8. (1) Prior to making an order under section 4 or 7, the Court shall require the applicant or the missing person, as the case may be, to provide evidence, whether by way of affidavit or otherwise, that notice of the relevant application has been served on any person who may be affected by the making of the order.
(2) The Court shall not make an order under section 4 or 7, unless it is satisfied that the requirements of subsection (1) have been complied with.”.

This is to insert a new section after section 7. The purpose of the new section 8 is to ensure that all affected parties are put on notice as to the making of applications for presumption of death orders or variation orders under section 4 or section 7 to avoid any injustice that might ensue if an application were to be made and an order granted in the absence of the parties.

Section 4(5) in its current form puts the obligation, which is expressed in permissive terms, on the court to serve notice on an affected party. This may not seem to be appropriate. The obligation should be on the applicant with the court's duty being to ensure that the applicant's obligation has been complied with.

There is no equivalent of section 4(5) in section 7 and this is a lacuna which the new section also seeks to address. I ask the Senators to accept that this would be an obligation on the part of the applicant rather than something that is put on the court.

I welcome the amendment and I understand where the Minister is coming from on it. There has to be an obligation on the applicant and providing for it in the legislation provides clarity.

Amendment agreed to.
Government amendment No. 48:
In page 9, to delete lines 1 to 11 and substitute the following:
“Jurisdiction of courts and venue
9. (1) Subject to this section, the Circuit Court shall, concurrently with the High Court, have jurisdiction to hear and determine proceedings under section 4.
(2) The High Court shall have exclusive jurisdiction to hear and determine proceedings under section 7.
(3) Where the market value of any land to which an application for an order provided for in section 4 relates exceeds €3,000,000, the Circuit Court shall, if an application is made to it in that behalf by any person having an interest in the proceedings, transfer the proceedings to the High Court, but any declaration or decision made in the course of such proceedings before the transfer shall be valid unless discharged or varied by the High Court.
(4) The jurisdiction conferred on the Circuit Court by this Act may be exercised by—
(a) the judge of the circuit in which the missing person ordinarily resided or carried on any business, profession or occupation before he or she went missing, or
(b) the judge of the circuit in which the applicant ordinarily resides or carries on any profession, business or occupation at the time an application is made under section 4.
(5) Where the applicant is the Attorney General or other person acting on behalf of the State as set out in section 2(g), jurisdiction under this section shall lie exclusively with the High Court.
(6) Where the jurisdiction criteria set out in subsection (4) do not apply, the High Court shall have jurisdiction under this Act where—
(a) the missing person was domiciled in the State before he or she went missing,
(b) the applicant is domiciled in the State at the time an application is made under section 4, or
(c) the application relates to a missing person where that missing person is a victim of violence (within the meaning of the Criminal Justice (Location of Victims’ Remains) Act 1999).”.
Amendment agreed to.
Government amendment No. 49:
In page 9, to delete lines 12 to 43, and in page 10, to delete lines 1 to 5.
Amendment agreed to.
Government amendment No. 50:
In page 10, to delete lines 6 to 11 and substitute the following:
“PART 3
AMENDMENTS TO CIVIL REGISTRATION ACT 2004
Interpretation
11. In this Part “Act of 2004” means the Civil Registration Act 2004.
Amendment of section 2 of Act of 2004
12. Section 2(1) of the Act of 2004 is amended—
(a) by the insertion of the following definitions:
“ ‘Act of 2018’ means the Civil Law (Missing Persons) Act 2018; missing person’ has the same meaning as missing person in section 1 of the Act of 2018;
‘presumed death’ means a presumed death where a presumption of death order has been made under section 4 of the Act of 2018;”;
and
(b) by the insertion of the following in the definition of “the required particulars”:
“(f) in relation to a presumed death, the particulars specified in Part 5B of that Schedule;”.
Amendment of section 8 of Act of 2004
13. Section 8 of the Act of 2004 is amended by the insertion of the following paragraph after paragraph (eeee) of subsection (1):
“(eeeee) to establish and maintain a register and index for the purpose of the registration of presumed deaths,”.
Amendment of section 13 of Act of 2004
14. Section 13 of the Act of 2004 is amended in subsection (1): by the insertion of the following after paragraph (k):
“(l) a register of all presumed deaths where a presumption of death order has been made under section 4 of the Act of 2018 (which shall be known, and is referred to in this Act as the register of presumed deaths),”.
Part 5B of the Act of 2004
15. The Act of 2004 is amended by the insertion of the following Part after Part 5A:
“PART 5B
REGISTRATION OF PRESUMED DEATHS
Interpretation
44F. In this Part—
“Court” shall be construed in accordance with section 9 of the Act of 2018;
“register” means the register of presumed deaths.
Application of Part
44G. (1) This Part applies to a presumed death where a presumption of death order has been made under section 4 of the Act of 2018.
(2) Part 5 shall not apply to a presumed death to which this Part applies.
Furnishing of particulars of presumed death by a court to registrar
44H. (1) Where, in accordance with section 4(4) of the Act of 2018, a Court makes a presumption of death order, the Court concerned shall give the appropriate registrar a copy of the presumption of death order, together with the required particulars contained in Part 5B of the First Schedule that are available to the Court, and that registrar shall register the presumed death in such manner as an tArd-Chláraitheoir may direct.
(2) Where there is an error in an order furnished under subsection (1) the Court concerned may give to the registrar concerned a further order correcting the error, and the registrar shall correct the error in the register.
(3) Where a variation order is made by a Court under section 7(1) of the Act of 2018, the Court concerned shall, in an appropriate case, give a copy of the variation order to the registrar concerned, and the registrar shall remove the original entry from the register or make such adjustment to that entry as may be required by the variation order.
(4) Where a body has been recovered and—
(a) the body is that of a person for whom an entry has been made in the register, and
(b) an entry has been made in the register of deaths in respect of the recovered body or an entry has been made in the record of deaths abroad in respect of the recovered body, the registrar concerned shall remove the original entry from the register.
(5) In this section “appropriate registrar” means a registrar in the functional area of the authority in which—
(a) the death was presumed to have occurred, or
(b) if a place of presumed death cannot be determined, the area in which the missing person was normally resident.”.
Amendment of First Schedule to Act of 2004
16. The Act of 2004 is amended by the insertion of the following Part after Part 5A in the First Schedule:
“PART 5B
PARTICULARS OF PRESUMED DEATHS TO BE ENTERED IN THE REGISTER OF PRESUMED DEATHS
date and place of presumed death (or most accurate estimate of date and place of presumed death);
place of birth of missing person;
sex of missing person;
forename(s), surname, birth surname and address of missing person;
personal public service number of missing person;
civil status of missing person;
date of birth of missing person;
profession or occupation of missing person;
if missing person was married or in a civil partnership, the name and profession or occupation of spouse or civil partner;
if missing person was less than 18 years of age on presumed date of death, occupation(s) of his or her parent(s) or guardian(s);
forename(s) and birth surname of father of missing person;
forename(s) and birth surname of mother of missing person;
forename(s) and birth surname of parent of missing person;
forename(s), surname, qualification, address and signature of informant;
a copy of the presumption of death order made under section 4 of the Act of 2018;
the forename, surname and place of business of the judge that made the presumption of death order;
date of registration;
signature of registrar.”.

May I make a point regarding Part 3, amendment No. 12 of the Act of 2004, which I raised earlier? It states that the Act of 2018 means the Civil Law (Missing Persons) Act 2018, whereas at the start of the Bill we were changing the wording to the Civil Law (Presumption of Death) Act. Could we get clarification on that issue?

That will follow to be sure that the references are in line with amendments we have already made to the Title.

I thank the Minister.

Amendment agreed to.
Bill reported with amendments.
Bill, as amended, received for final consideration.

When is it proposed to take the next Stage?

I propose that we take the next Stage now but I am conscious of what Senator Paul Daly said earlier. I very much regret if he did not have an opportunity to-----

If Senator Daly is happy-----

I have received all the clarification needed. I am happy to proceed.

Question proposed: "That the Bill do now pass."

I want to acknowledge the importance of this legislation. It is a Private Members' Bill. It is not often that we have an opportunity in either House to complete all Stages of a Private Members' Bill from start to finish. I was very pleased, on behalf of the Government, to assist Senators Marie-Louise O'Donnell, Colm Burke and Lynn Ruane on this legislation. I am aware that all the Senators, particularly Senator Burke, were keen to ensure this issue was never far from the priority list in terms of the ordering of business here in the Seanad. I am pleased we were able to come forward with amendments before the end of this session, which will mean the Bill will be ready for transmission to the Dáil. Given that there is only a short period of time left, I do not suppose I can promise that the Bill will be taken in the Dáil in the next couple of weeks but we are ready to proceed in early autumn.

On behalf of the Government, I acknowledge the importance of collaboration in this regard. The debate we have had in the past hour or more shows that, working together, we can bring about improvements. We have a short but important Bill containing 11 sections. The fact that we had 50 amendments indicates the approach of the Government in that regard. I thank my officials, in particular, Ms Regina Terry.

It was the preferred choice of the Government that we would accept the Bill in the names of the Senators and amend it rather than take the easier option of casting it aside and coming back at some stage with a Government proposal. I am very pleased that the hallmark of this legislation, as it is enacted on the Statute Book, will bear the names of Senators Lynn Ruane, Marie-Louise O'Donnell and Colm Burke. That is testament to their important contribution as legislators. I am aware of the impact of this Bill and that these provisions will have an important and positive consequence, fortunately on a very small number of people. Once enacted, the Bill will bring a degree of certainty, comfort and normality into the lives of those who continue to mourn a loved one who has gone missing.

Of all the engagements I have had in my diary over the past 12 months, National Missing Persons Day in Farmleigh was perhaps the most poignant I have experienced. I want to acknowledge the work of the Garda Síochána missing persons bureau and the continued engagement of members of An Garda Síochána up and down the country on these most sensitive issues involving human tragedy. I do not in any way presume to suggest that the Bill will assuage the grief of individuals and families in any way, but I have no doubt it will make a contribution in terms of taking a vital step which will enable people to move in a positive direction with their lives, even where there is a large measure of distress attended on that movement.

I thank Senators for introducing the Bill and my officials for ensuring that the Bill is now in a position where it can be regarded as legally robust and sound. I am pleased that we all worked together and I hope we can move matters on to the Lower House for the autumn session.

I want to congratulate Senator Colm Burke because it is his Bill and we were privileged to be part of it. I thank him for including me. There were some marvellous speeches made on Second Stage, which ignited the Bill and encouraged the Government to prioritise it, which I was glad to see. I thank the Department and the Minister most sincerely because the amendments tabled were excellent and enhanced and protected the Bill. It is Senator Burke's day and he has worked very hard for it. He saw the Bill through and stayed with it. He was right. As I said in my report, it came up in a thousand different ways which we forget about. I agree with the Minister that it will not take away grief and pain, but will give some kind of conduit or ending for it, in terms of the awful vacuum for those left living when a person goes missing for years without any sense of returning.

I would like to be associated with those remarks. I thank the Minister for his clarity in his explanation of the amendments. I wish to compliment Senators Colm Burke, Marie-Louise O'Donnell and Ruane who brought the Bill forward. From my short period of time here I know how hard it is to get a Private Members' Bill across the line. I congratulate them. It is a very worthy cause.

I join with my colleagues in congratulating Senator Colm Burke. The Bill highlights other areas where we can work on legislation in a cross-party manner. Sometimes we are too protective of legislation, but we can take a leaf out of Senator Burke's book and see where we can and cannot agree in order to work on important legislation. This issue only affects a small minority but has a significant impact. The House could work on many small Bills like this together and we should follow Senator Burke in working on such proposed legislation and move it forward together.

I again congratulate Senators Colm Burke, Marie-Louise O'Donnell and Ruane. There is compassion and empathy for those who have experienced the worst possible thing, namely, someone going missing. To bring the Bill through the House is a great thing and I am delighted to support it.

I thank the Minister for coming forward with amendments and giving a very detailed explanation of each one. I thank his officials, in particular Ms Regina Terry, for their work, and all of those in the Department and the Office of the Attorney General who provided legal back-up support in bringing forward the amendments. It is a very technical Bill and it is important that we get it right. It is also important that I acknowledge the Law Reform Commission's extensive 2013 report which set out all of the issues which needed to be addressed. It was great to be able to work from that background document and bring forward the Bill.

I thank my colleagues, Senators Marie-Louise O'Donnell and Ruane, for their work. Cross-party support on this matter was important. The current law creates a significant vacuum for families. Sometimes there is clear evidence that a person has died, something which was brought home to me after a debate here in 2016 when a family contacted me about a young girl who disappeared. Her car was found on a beach and her clothes were found. A note had been left and it was clear she had died, yet the family was left in limbo and was unable to finalise anything about her estate. The Bill deals with such cases and it is to be hoped it will be passed by the Dáil in the not too distant future.

I thank my colleagues for their comments and contribution to this debate. I look forward to seeing the Bill passed into law and being commenced. In the amendments brought forward the Department approached areas in the Bill which were not covered by the Law Reform Commission even though it examined the issue. That is not a criticism of it, rather it shows how technical the Department got in dealing with this matter and making sure all angles were covered. I thank it for its expertise and willingness to deal with me, as well as its assistance to me in bringing the Bill to a conclusion in the House. I thank the Department, the Minister and my colleagues.

Question put and agreed to.

When is it proposed to sit again?

We are sitting early next Tuesday.

At 12.30 p.m. next Tuesday.

I have an important meeting at 12 noon on Tuesday.

The Seanad adjourned at 1.40 p.m. until 12.30 p.m. on Tuesday, 3 July 2018.