Zenith Family Current Awareness

Commentary on two interesting recent public law authorities: Re JS (Disposal of Body) [2016] and Re W (A Child) [2016]- Part 1

1 December 2016

Louise McCallum

In this blog, in two parts, I will focus on a couple of interesting recent children law authorities. 

The decision of Mr Justice Peter Jackson in Re JS (Disposal of Body) [2016] EWHC 2859 (Fam) attracted considerable media attention and demonstrated the talent of some journalists to produce the startlingly unsavoury headline:

“FROZEN IN TIME.  Frozen British child is hanging upside down in £10 sleeping bag along with five other corpses as her dad blasts Cryonics Institute for giving girl ‘false hope’” [The Sun]. 

“Cryonics boss where teen is stored admits corpses could awake as WALKING DEAD.  PEOPLE who are cryogenically frozen could wake up as zombie-like "clones" of their former selves, according to the head of the facility storing the body of a British teenager” [Sunday Express] 

“Frozen and flown to US by a bunch of 'Dad's Army' amateurs: The journey of a terminally-ill schoolgirl from London to a bleak industrial estate in Michigan” [The Daily Mail]

Anyway, I digress.  What was the case actually about? The dilemma before the court concerned the issue of disposal of a child’s body following her death and post death arrangements, in particular whether her father should be able to see her body. 

The applicant was a 14 year old girl “JS” and suffering from a rare form of terminal cancer.  JS’s parents were divorced and sadly had an acrimonious relationship.  The Father himself had cancer.  Following earlier private law proceedings he was to have only indirect contact with JS.  JS had refused contact with her father and did not want him to have detailed knowledge of her medical condition.

JS had used the internet to investigate cryonics, the freezing of a dead body  in the hope that resuscitation and a care may be possible in the future.  She decided that she wanted her body be  cyronically frozen following her death.  JS had capacity to make the application.  She was described as a bright intelligent young person.  She had pursued her investigations with determination.  She wrote "...don't want to be buried underground.  I want to live and live longer and I think that in the future they might find a cure for my cancer and wake me up.  I want to have this chance.  This is my wish.”

Her mother supported her wish.  Her father’s views had fluctuated.   He had moved to being completely opposed to a final position in which he agreed subject to conditions, including that he and other members of his family could view JS's body after death.  JS objected to this, thus giving rise to a further issue requiring the Court’s determination: whether he should be allowed to do so.  Jackson J noted in his judgment that a dispute about a parent being able to see his child after death would be momentous enough on its own if the case did not also raise the issue of cryonic preservation.

The hospital was willing to do what it properly could to cooperate, for the sake of JS but medical professionals there had deep unease about cryogenics.  

Jackson J determined that the arrangements after JS's death  should be placed in the hands of her mother.  It was a serious conclusion, but justified on the exceptional facts.  The intensity of the difficulties between JS and her mother on the one hand and the father and his family on the other made it impossible to accommodate the father's wishes. 

Mr Justice Jackson made orders:

a) placing responsibility for preservation of the body and who should be permitted to view it in the Mother’s hands and prevented the father from intervening;

b) a specific issue order permitting the Mother to continue to make arrangements during JS's lifetime for the preservation of her body after death. 

c) an injunction in personam preventing the Father from applying for a grant of administration in respect of JS's estate, making or attempting to make arrangements for the disposal of JS's body and from interfering with arrangements made by the mother with respect to the disposal of JS's body. 

d) A prospective order was under s.116 of the Senior Courts Act 1981 or under the inherent jurisdiction of the High Court, 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 that the mother shall thereby have the right to make arrangements for the disposal of the body, and to decide who should be permitted to view it.

Jackson J stated at paragraph 23 of his judgment:

“It is no surprise that this application is the only one of its kind to have come before the courts in this country, and probably anywhere else.  It is an example of the new questions that science poses to the law, perhaps most of all to family law.  Faced with such a tragic combination of childhood illness and family conflict, the court must remember that hard cases make bad law, and that natural sympathy does not alter the need for the application to be decided in accordance with established principle, or with principle correctly established.” 

From paragraphs 25 onwards Jackson J sets out a series of notable matters:

  1. Much of the current problem arose from the fact that JS is a child, albeit a legally competent one.  If she was 18, she would be able to make a will, appointing her mother as her executor, and it would then be for the mother to make arrangements for the disposal of JS's body, no doubt in accordance with her wishes.  However, children cannot make wills.  Jackson J’s approach was to try to remove the disadvantage that JS is under as result of her age, no further than that.
  2. It is important to approach a problem of this kind on the basis of a real situation as opposed to theoretical possibilities  Now that further information had been obtained from the hospital and US authorities there was a practical plan that could be considered.
  3. The court is not making orders against third parties.  The court is only providing a means of resolving the dispute between the parents.  
  4. This case does not set a precedent for other cases.  If another health trust was ever to be faced with a similar situation, it would be entitled to make its own judgment about what was acceptable in respect of a patient in its care, and it might very well reach a different conclusion, as might another court.  There were clearly a number of serious ethical issues.  The Court had received information about procedures performed on the body after death that would be disturbing to many people.
  5. Jackson J was acutely aware that this case gave rise to a large number of issues that could be investigated in the hearing.  If regulation is required, there would need to be consultation with a wide range of interested parties.  That was a matter for others.  This court was faced with a situation that needs immediate determination on the basis of the best available information.  He would direct that the papers in the case be released to the HTA on the basis that the identity of the family and the hospital trust will remain confidential.  
  6. Jackson J then stated (and it may be thought his words were not sufficiently heeded by the tabloid press):  

“Lastly, I cannot emphasise enough what this case is not about.  It is not about whether cryonic preservation has any scientific basis or whether it is right or wrong.  The court is not approving or encouraging cryonics, still less ordering that JS's body should be cryonically preserved.”  

Jackson J also made clear that it was not a case about whether JS's wishes were sensible or not.  He stated “We are all entitled to our feelings and beliefs about our own life and death, and none of us has the right to tell anyone else – least of all a young person in JS's position – what they must think.” JS could not expect automatic acceptance of her wishes, but she was entitled to know whether or not they can be acted upon by those who will be responsible for her estate after her death. 

The judgment contains a sad postscript.  Jackson J visited JS, at her request, on 7 October, the day after the hearing.  He was moved by the valiant way in which she was facing her predicament (her solicitor later gave an interview on Radio 4 saying that JS had called  Mr Justice Jackson “Mr Hero”).  JS died peacefully on 17 October 2016.  The hospital provided information to the Court containing their  misgivings about the impact of the cryogenics process.  JS’s mother was sadly thought to have been preoccupied with the post-mortem arrangements at the expense of being fully available to JS in her last day of life.  The voluntary organisation facilitating the transportation of the body was under-equipped and disorganised.  The way in which the process was handled had caused real concern to the medical and mortuary staff.  The notes were to be passed to the Human Tissues Authority.  Jackson J observed that it may be thought that the events in this case suggest the need for proper regulation of cryonic preservation in this country if it is to happen in future. 

If the reported claims of an upsurge in interest in cryogenics, following reporting about this case, are true, it seems likely that there will be proposals for regulation.  The Department of Health said it was conducting a review after concerns were raised about Cryonics UK.

Current Awareness

By the Family team