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Case note: The right to dispose of a body pre-death

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Mr Justice Peter Jackson has ruled that a terminally ill child’s wish to have her body cryogenically frozen must be abided. 

Re JS (Disposal of Body) [2016] EWHC 2859 (Fam) 

From Mr Justice Peter Jackson, 10 November 2016

Pre-death decision making

In brief: Here, a 14-year-old girl, diagnosed with a rare form of cancer and facing the end of her life, applied to the court for measures to be put in place on her death that would allow her body to be cryogenically frozen. Her mother (‘M’) supported her wishes; her father (‘F’), with whom she’d had no face to face contact for eight years, opposed it. Amongst other orders, the court made a specific issue order permitting M to continue to make arrangements during the child’s lifetime for the preservation of her body after death and an injunction against F preventing him from applying for a grant of administration in respect of the child’s estate, making or attempting to make arrangements for the disposal of her body or interfering with M’s arrangements.

Comment

Three issues are addressed in the judgment: the making of the specific issue order, the disposition of the body, and prospective decisions. Interestingly, whilst section 8 of the Children Act applies to parental responsibility for a person under the age of 18, it does not extend to regulating events arising after the child’s death. The making of the order was, of course, governed by the welfare principle and the predominant feature was the child’s wishes, feelings and acute emotional needs. Mr Justice Jackson was very clear in stating that, in making the order, the court was not approving the choice of arrangements but it was giving the child and her mother the opportunity to make that choice.

There was a lot of consideration as to whether a prospective order could be made in life to take effect after death. All of the authorities involving a dispute over a body had been litigated after death; here, there wasn’t time for litigation post-death because of the speed with which the cryogenic process had to start. Mr Justice Jackson concluded that the court did have power to make a decision with prospective effect: ‘[t]o use the words of Jessel MR, it might be argued that a present right depends on the decision, in that JS’s present welfare cannot be adequately protected by the court refusing to entertain the question, whether the right is expressed in terms of Article 8 the European Convention on Human Rights (ECHR) or otherwise’. He concluded: ‘It is by this route that I would justify the making of injunctions limiting the manner in which the father can act not only while JS is alive, but also following her death, and the making of a prospective order investing the mother with the sole right to apply for letters of administration after JS dies.’

 Case notes provided by Family Law Hub.

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