LAW REFORM COMMISSION PUBLISHES CONSULTATION PAPER ON CIVIL LAW OF MISSING PERSONS
CONSULTATION PAPER RECOMMENDS LAW TO ALLOW FAMILY OF MISSING PERSONS TO DEAL WITH ANY IMMEDIATE FINANCIAL ISSUES FOR MISSING PERSONS; AND TO ALLOW FAMILY APPLY FOR A DECLARATION OF PRESUMED DEATH THROUGH A CORONER’S INQUEST OR THE COURTS; RECOMMENDATIONS RECOGNISE PROBLEM OF “THE DISAPPEARED”
Monday 19th December 2011: The Law Reform Commission has today published a Consultation Paper on Civil Law Aspects of Missing Persons. The Consultation Paper forms part of the Commission’s Third Programme of Law Reform 2008-2014 and makes 18 detailed provisional recommendations for reform of the law.
The Statistics on Missing Persons in Ireland
Between 7,000 and 8,000 people are reported missing every year in Ireland, almost 20 every day. Most of these actually turn up within a very short time, and less than 1% remain missing for a long time. According to the most recent figures from the Garda Missing Persons Bureau, between 2003 and 2010 there were 53,915 missing persons reports; of these, 381 people remain missing.
Northern Ireland’s “Disappeared”
In the context of the violence in Northern Ireland from the 1970s to the late 1990s, this also includes “the Disappeared,” a group of 17 people who are presumed to have been killed but whose bodies had not been found. The Independent Commission for the Location of Victims’ Remains, established after the 1998 Good Friday Agreement to locate their remains, has to date located 10 bodies, so that 7 of “the Disappeared” remain missing. Against this background, in 2009, the Northern Ireland Assembly passed the Presumption of Death (Northern Ireland) Act 2009, which allows relatives to apply to court for a presumption of death order.
Immediate Problems When a Person Goes Missing: How to Pay Bills
Having talked to representatives of missing persons in the lead-up to publishing the Consultation Paper, the Law Reform Commission concludes in the Consultation Paper that there is a need to have a statutory framework to deal with some immediate practical problems for family members (often referred to as those left behind). In particular, there is a need to allow access to a missing person’s bank account (especially where the bank account is in his or her sole name) so that bills can be paid. The Commission provisionally recommends that legislation should be enacted to allow the family left behind to take out a limited grant of administration of the missing person’s estate (through the Probate Office of the High Court). This would allow the family to pay bills or, for example, to renew insurance on a car or motorbike. This process could be in place for up to 2 years (with a possible extension of 2 more years).
Presumption of Death Orders
The current law is that there is a presumption that a missing person is alive for up to 7 years, and that a presumption of death applies after 7 years. These presumptions can be rebutted by evidence, so a person can be presumed dead where they have been missing for less than 7 years; and an absence of 7 years does not always lead to a declaration of presumed death. The current law is limited, because it only allows family members to apply to the High Court to have the estate of the missing persons administered. In rare cases, an inquest has been held involving a missing person, which can lead to a coroner’s declaration of death, allowing the family to obtain a death certificate. This happened earlier this year in the inquest into Mrs Alice Clifford, who went missing from a Dublin hospital in 1979 aged 57.
In the Consultation Paper, the Commission recommends reform of the law on presumed death, in particular to ensure that families can deal as far as possible in the least expensive way with the emotional trauma of their loved one going missing. This would include amending the legislation on coroners to make it clear that families of missing persons may apply to have a coroner’s inquest and to have a declaration of presumed death; this would apply to cases where death is almost certain. In cases where death is highly probable, the Commission recommends that a court application would be needed, but that this would allow not only for the administration of the missing person’s estate but also for the making of a presumption of death order. This would allow the family of the missing person to obtain a death certificate. The Commission recommends that, as far as possible, the law in this State should mirror the provisions of the Presumption of Death (Northern Ireland) Act 2009, so that any cases involving “the Disappeared” that might be dealt with in the State would be based on a similar legal framework.
What Happens if the Missing Person Returns?
The Consultation Paper also makes recommendations to deal with the rare situations where a missing person who has been declared dead is actually alive and returns. The Commission makes recommendations that would allow the person to have property returned to him or her (subject to any irreversible orders that have been made in the meantime). The Commission also invites submissions on the status of any second marriage/civil partnership that a spouse/civil partner may have entered into while the person was missing. The current law is that the second marriage/civil partnership is completely invalid.
The Law Reform Commission is an independent statutory body whose main role is to keep the law under review and to make proposals for reform. To date, the Commission has published over 160 documents (Consultation Papers and Reports) containing reform proposals, available at www.lawreform.ie. About 70% of these proposals have led on to reforming legislation. The Consultation Paper will be available on the Commission’s website from the morning of publication on 19th December 2011. The Consultation Paper contains the Commission’s provisional recommendations on this area, and submissions are invited on all of these until 31 March 2012.