Report on Civil Law of Missing Persons

Wednesday, 30th January 2013 | 0 comments
Filed under: 2013.



Wednesday 30th January 2013: The Law Reform Commission’s Report on Civil Law Aspects of Missing Persons will be launched by Mr David Stanton TD (Chair of the Oireachtas Committee on Justice, Defence and Equality) at the Commission’s offices at 6 pm this evening. The Report makes 19 recommendations for reform of the law and also contains a Draft Civil Law (Missing Persons) Bill to implement these.

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 2011 there were 62,426 missing person reports; of these 382 people remain missing.

Northern Ireland’s “the 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 Act (Northern Ireland) 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 during the consultation process leading up to finalising the Report, the Law Reform Commission concludes 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 therefore recommends that legislation should be enacted to allow the family left behind to apply to the Circuit Court after a person has been missing for 90 days to allow interim management of the missing person’s property. 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 primarily based on a long-established rule 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 are rebuttable presumptions, which means that 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 in that family members may apply to the High Court to have the estate of the missing persons administered, but this does not allow them to obtain a death certificate. In some cases, an inquest can be held involving a missing person; and if it is almost certain that the missing person has died, a coroner can then make a declaration of death under the Coroners Act 1962, which allows the family to obtain a death certificate. This happened in 2011 in the inquest into Mrs Alice Clifford, who went missing from a Dublin hospital in 1979 aged 57.

The Commission’s Report 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 clarifying the existing law on inquests to allow families of missing persons to apply for a coroner’s inquest and to have a declaration of presumed death; this would apply to cases where death is virtually certain. In cases where death is highly probable the Commission recommends that an application to the Circuit Court would be needed to provide not only for the administration of the missing person’s estate but also to make a presumption of death order, allowing the family of the missing person to obtain a death certificate. This would have the same legal effect as any other death certificate. The Commission recommends that, as far as possible, the law in the State should mirror the provisions of the 2009 Northern Ireland legislation, 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 Report also deals with the rare situations where a missing person who has been declared dead is actually alive and returns. The Commission recommends that the proposed legislation would allow the person to have property returned to him or her, subject to any irreversible orders that have been made in the meantime, such as selling property. In addition, any person applying for orders under the proposed legislation would usually be required to take out an insurance bond to cover any financial loss to the missing person that might arise.

Click for report