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

Analysis

JS, a 14-year-old, terminally ill girl wanted to pursue cryonic preservation: the speculative and controversial scientific theory of freezing a dead body in the hope that resuscitation and a cure may be possible in the distant future. JS’s parents disagreed about what should happen.

JS’s parents were divorced. For most of JS’s life she had lived with her mother (M) and had no face-to-face contact with her father (F), who was also suffering from cancer, since 2008. M and F had a very bad relationship. M supported JS’s wishes.

At the start of proceedings F was opposed and concerned he may become responsible for the costs. By the second hearing he was prepared to agree to JS’s wishes on four conditions: (1) that he and other members of his family could view her body after death; (2) that M would not pursue any financial claims against him; (3) M and her family would not make contact with him and members of his family; (4) that he would not be pursued for any contribution to the costs of the cryonic process. F’s last statement at hearing was that he wanted the court to know that he respected JS and that he would respect the court’s decision. He argued that the court could and should not make any decision that prevented him and his family making an application to see JS’s body after death. JS found F’s first condition objectionable.

JS’s proposal was not regulated by statute and accordingly the Human Tissue Authority confirmed that it had no remit. It did not appear that an offence would be committed in this case by what JS wanted to happen. There was no practical obstacle to JS’s body being transported to the United States for cryonic preservation.

As to whether the court has a power that could be exercised before JS died on the issues, the argument against the existence of the power was the fact that a person cannot control the disposition of their body after their death (Williams v Williams [1882] LR 20 ChD 659); that there may later be a change of circumstances that would undermine the decision and that as a matter of policy the court may not wish to encourage similar applications.

In favour of the existence of a power was that all parties were represented before the court while it would be difficult if not impossible to reassemble effectively after JS’s death; that the resolution of the issue now should prevent undignified scenes later; that clarity would help third parties to know how they should act; that the arrangements for JS after death would be particularly complex if she were to be preserved; that JS did not want to be seen after death by F or his family and the possibility that it might happen caused her distress; and that consideration of JS’s welfare during life with her dependence on M who was herself under considerable stress favoured the ability to provide resolution at the earliest opportunity.

Held:

1. 1. 1) Children cannot make wills so the court’s approach was to remove the disadvantage JS was under as a result of her age. JS could not be in a better position than she would be if she were an adult. It is important to approach a problem of this kind on the basis of a real situation as opposed to theoretical possibilities.
   2. 2) The court was not making orders against third parties. The position of the various organisations and authorities had been set out. All the court was doing was providing a means of resolving the dispute between the parents.
   3. 3) This case does not set a precedent for other cases. If regulation is required on the issues arising then that is a matter for others. The court is faced with a situation that required immediate determination.
   4. 4) The court had the power to make the order requested by JS. A decision entrusting power to M did not contravene the principles in Williams. There was no chance of a change of circumstances before JS’s death. The policy concern could not lead the court to decline to deal with a situation that demands resolution.
   5. 5) F’s role in JS’s life had been extremely limited and his request to see her after death caused her distress in life. His other conditions had no real weight. There was no way he could be held responsible for payment for cryonic preservation. The intensity of the difficulties between JS, M and F and his family made it impossible to accommodate F’s wishes. Therefore M was best placed to manage the preservation of JS’s body and the question of who should be permitted to view it.
   6. 6) The following orders were made:
   7. (a) A specific issue order permitting M to continue to make arrangements during JS’s lifetime for the preservation of her body after death.
   8. (b) An injunction in personam preventing F from:
   9. (i) applying for a grant of administration regarding JS’s estate;
   10. (ii) making or attempting to make arrangements for the disposal of JS’s body; and
   11. (iii) interfering with arrangements made by M with respect to the disposal of JS’s body.
   12. (c) A prospective order under s116 of the Senior Courts Act 1981, alternatively under the inherent jurisdiction of the High Court to take effect on JS’s death, appointing M as the sole administrator of her estate in place of M and F jointly, and specifying that M shall thereby have the right to make arrangements for the disposal of the body and to decide who should be permitted to view it.
   13. 7) The nature of the family breakdown and of JS’s wishes would qualify as special circumstances. The court has the power to make a prospective order in this case.
   14. 8) An order for disclosure of the papers to the Human Tissue Authority.

JS died on 17 October 2016. The trust made a detailed note describing the events surrounding JS’s death and expressing misgivings about what occurred on the day (the note).

1. 9) Approval of the trust’s intention to send a copy of the note and its accompanying documents to the Human Tissue Authority.

JUDGMENT Important notice This judgment was delivered in private. This version may be published on condition that the reporting restriction order (see appendix) is observed and the anonymity of the persons concerned is strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so …

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