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Planning for Death, A Child's Wishes and Re JS (Disposal of Body) [2016] EWHC 2859 (Fam)

Louise Spalding, Associate Solicitor with Mills & Reeve LLP, considers the court’s powers to enable a 14-year old girl to make preparations for the post-death disposal of her body.

Louise Spalding, Associate Solicitor, Mills and Reeve LLP

Louise Spalding, Associate Solicitor, Mills & Reeve LLP

In a recent, much publicised case - Re JS (Disposal of Body) [2016] EWHC 2859 (Fam) - Mr Justice Peter Jackson was handed the unenviable task of deciding the post-death fate of a terminally ill 14-year old girl, known only as JS.  Clearly moved by her situation, and not wishing to substitute his own beliefs about death for those of JS, his judgment provided the mechanism for an outcome in which he sought to achieve JS's wishes in life: that she be cryonically preserved upon death. 

Having heard representations from JS, her parents (who were separated and with differing views), Cafcass Legal and the Hospital Trust, his judgment was delivered on 7 October.  JS died on 17 October.  Cryonic preservation ensued, but regrettably the judgment's postscript notes the far from smooth process in which the non-medically trained voluntary organisation overseeing the process was "under-equipped and disorganised." 

Peter Jackson J faced a time-pressured situation, which ultimately he felt able to determine because:

This is the first case in which the issue of cryonic preservation has been presented to the court, and is another example of the law having to adapt and evolve to tackle advances in science and medicine.  If cryonic preservation is to become more commonplace, which is no doubt inevitable, the call, quite rightly, is for regulation to ensure a smooth and competent process for those opting for it. 

Previously, of course, the courts have grappled with situations in which there has existed a dispute about the disposal of bodily remains – for example in Buchanan v Milton [1999] 2 FLR 844.  A review of case law prior to Re JS is neatly summarised in an earlier FLW article.  This current article does not seek to repeat the law and principles summarised in the earlier one, but looks at the same issues as presented in the context of a child who sought a legal means to secure her wish to be cryonically preserved.

The application was brought by JS because her parents could not agree about what would happen to her upon her death.  JS had lived with her mother since her parents' separation and had not had any face to face contact with her father since 2008.  Despite his attempts, she resisted any contact with him during her illness, and in separate proceedings in which he had sought time with her, the court was prepared to order it only on an indirect basis. 

As the relationship between JS's parents had completely broken down, there was no prospect of them reaching agreement without the intervention of a court. 

JS was described as "a bright, intelligent young woman who is able to articulate strongly held views on her current situation."  Accordingly, she had the requisite legal capacity to bring the application, and the judge was desirous of giving effect to her wishes.  Throughout the proceedings, her mother supported JS in her wish to embark upon cryonic preservation.  Her father's views waivered, but in the end he agreed subject to a number of pre-conditions, including seeing JS's body upon death (opposed by JS and her mother), and ensuring he was not financially responsible to any degree in relation to the cost of cryonic preservation.  The judge dismissed each of his pre-conditions, and the outcome of the judgment rendered them irrelevant in any event.

It is worth noting that the hospital supported JS's wishes based upon their belief that supporting her would reduce her agitation and distress about the situation for the remainder of her life.  However, the Hospital Trust represented that it did not endorse cryonics, and in fact felt "deep unease" about it (per para 13).  With the benefit of hindsight, the events following JS's death would appear to justify their unease.

Peter Jackson J's key findings can be summarised as follows:

The orders
On the basis that JS had legal capacity, but lacked legal standing to make a will, the judge set about making a set of legal orders that would enable her mother to make arrangements during JS's life, and then to enable her to give effect to JS's wishes upon her death.  His objective was to put JS in the position she would be in if she could have made a will, but no more (per para 25).  To achieve JS's objectives, Peter Jackson J felt able to make the following orders:

1 A specific issue order (pursuant to section 8 Children Act 1989) permitting mother to continue making arrangements during JS's lifetime for the preservation of her body after death.  Determination of the specific issue order is by reference to the welfare principle – in this case the predominant features were as to "JS's wishes and feelings and her acute emotional needs" (per para 46).

2 An injunction in personam preventing the JS's father from:

(a) Applying for a grant of administration in respect of JS's estate;

(b) Making or attempting to make arrangements for the disposal of JS's body; or

(c) Interfering with arrangements made by the mother with respect to the disposal of JS's body.

3 Pursuant to section 116 of the Senior Courts Act 1981, or alternatively under the inherent jurisdiction of the High Court, a prospective order to take effect upon JS's death, appointing the mother as the sole administrator of her estate in place of the mother and father jointly, and specifying therefore that her mother would have the right to (1) make arrangements for the disposal of the body, and (2) decide who should be permitted to view it.

4 An order for disclosure of the papers to the Human Tissue Authority ("HTA").

5 [Reporting injunctions of varying degrees.]

The combination of orders 1, 2 and 3 above ensured JS's mother was able to attend to the arrangements required to meet JS's wishes both during the remainder of her life, and once she died.

A short consideration of the key legal issues
By way of reminder, children under 18 are unable to make a will (s.7 Wills Act 1837), precluding JS, who was 14 at the time of the proceedings.  If she was 18, she could have made a will appointing her mother as her executor, and it would then have been for her mother to make arrangements for the disposal of her body, no doubt in accordance with her wishes. 

Williams v Williams [1882] LR 20 ChD 659 established the principle that a person cannot control the disposition of their body after death.  A dead body is not property and cannot be disposed of by will.  The administrator or executor of the estate has the right to possession of (but no property in) the body and the duty to arrange for its proper disposal (per para 47).  Peter Jackson J's objective in this case was to entrust JS's mother with decision making power following JS's death, and in doing so he determined he would not offend the principle in Williams.  As "disposal" is an evolving concept, it will necessarily involve changing customs and practices, one of which is cryonic preservation.

When a minor dies, the parents are each entitled to a grant of administration over her estate (Non-Contentious Probate Rules 1987 Rule 22(1)(c)) and, absent outside intervention, are therefore equally under a duty to arrange for the disposal of a body.  In JS's case, the difficulty was the dispute between her parents, and it was therefore necessary to defer to the court to navigate out of the gridlock.

Two approaches have been adopted when there is a legal dispute between executors or administrators about the disposition of a body:

1 In the manner of a resolution of a dispute between trustees (see Hartshorne v Gardner [2008] EWHC B3 (Ch)); or

2 As an application to displace the administrator of an estate, pursuant to s.116 of the Senior Courts Act 1981 (Burrows v HM Coroner for Presto [2008] EWHC 1387 (QB) and Ibuna v Arroyo [2012] EWHC 428 (Ch)). 

Section 116 reads:

"Power of court to pass over prior claims to grant

(1) If by reason of any "special circumstances" it appears to the High Court to be necessary or expedient to appoint as administrator some person other than the person who, but for this section, would in accordance with probate rules have been entitled to the grant, the court may in its discretion appoint as administrator such person as it thinks expedient.

(2) Any grant of administration under this section may be limited in any way the court thinks fit."

Having considered section 116, Peter Jackson J determined that he was empowered to pass over one or both parents, and of course he opted for appointing just JS's mother.  Alternatively, he was confident that Hartshorne was authority for invoking the court's inherent jurisdiction.  In addition, and with reference to Buchanan v Milton [1999] 2 FLR 844, JS's situation qualified as one in which there was a "special circumstance".

Having considered the applicable legal principles, he was able to make orders that would not offend any legal principle and bestow upon JS's mother the freedom required to plan to give effect to JS's wishes.

I do not think there can be anyone who envied the judge's difficult position in this case.  Dealing with the most delicate of circumstances, in a time pressured situation that could not be any more emotionally challenging, and with multiple parties to take account of, he undertook the necessary legal assessment, provided a mechanism to meet JS's wishes and delivered a concise judgment that demonstrates a solution-driven approach.  And this in the context of complex evidence from multiple agencies and with some very credible concern about the ultimate process of cryonic preservation. 

Of course, there is a degree of sensationalism around the case relating to the new and highly controversial process of cryonic preservation, but as lawyers we are able to see beyond that and look to the issues this situation presented, and how they might be overcome.

One issue is how to address a situation, as in JS, when two parents who are entitled to be appointed administrators are not going to agree.  As in previous cases, in JS it was possible to overcome this issue – the difference in JS's case, I think, is that the order was made prospectively, which is possible when the circumstances dictate.  The order essentially disbarred father from acting during the remainder of JS's life, and then enabled JS's mother to obtain letter of administration upon JS's death. 

Within his judgment, Peter Jackson J acknowledged that this decision may encourage a small number of pre-death applications, but policy concerns could not prevent the court from dealing with a situation that demanded resolution.  Ultimately, each case will turn on its own facts.

No doubt cryonic preservation is here to stay, and will grow in popularity.  And JS's case has demonstrated a need for regulation to ensure the process is carried out professionally, seamlessly, and enables the process – which is extremely delicate and time critical – to be undertaken effectively.  There is some doubt as to whether this was the case for JS.  As things stand, the HTA has no remit – cryonics was not contemplated when the relevant legislation came into being. Consequently,  Peter Jackson J made calls to the HTA and ordered that the papers in the case be released to assist (per para 15).