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Re JS (Disposal of Body); FD 10 Nov 2016

Family Law, Children, Adoption

Re JS (Disposal of Body); FD 10 Nov 2016

Postby dls » Fri Nov 18, 2016 8:00 pm

References: [2016] EWHC 2859 (Fam)
Links: Bailii, Judiciary
Coram: Peter Jackson J
Ratio: JS, a child of 14, anticpating her death from cancer expressed the desire that her body should receive cryonic preservation in the hope that one day a treatment might be available to allow her to be revived, and proceedings were issued. Her parents were divorced, and they differed as to what should be done.
Held: The form of application was for a specific issue order. JS had capacity, and there would be no inevitable practical obstacle. 'All this case is about is providing a means by which the uncertainty about what can happen during JS's lifetime and after her death can be resolved so far as possible. JS cannot expect automatic acceptance of her wishes, but she is entitled to know whether or not they can be acted upon by those who will be responsible for her estate after her death. It would be unacceptable in principle for the law to withhold its answer until after she had died. Also, as a matter of practicality, argument about the preservation issue cannot be delayed until after death as the process has to be started immediately if it is to happen at all.'
Applying the JSB case, with acknowlegement to the differenet statutory context, a prospective order was available, and granted 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.
Statutes: Human Tissue Act 2004, Children Act 1989 8, Wills Act 1837 8, Non-Contentious Probate Rules 1987 22(1)(c)
This case cites:
    - Cited - Williams v Williams ([1882] 20 ChD 659)
    By codicil to his will the deceased directed that his executors should give his body to Miss Williams; and by letter he requested her to cremate his body under a pile of wood, to place the ashes into a specified Wedgwood vase and to claim her . .
    - Cited - Regina v Gwynedd County Council ex parte B and Another ([1992] 3 All ER 317)
    The ambit of the 1980 act does not extend to regulating events arising aftera child's death. . .
    - Cited - Fessi v Whitmore ([1999] 1 FLR 767)
    The place with which the deceased had the closest connection is relevant as to the decision as to his or her ultimate resting place. . .
    - Cited - Borrows v HM Coroner for Preston QBD (Bailii, [2008] EWHC 1387 (QB), [2008] EWHC 1387 (Admin), [2008] Fam Law 984, [2008] 2 FLR 1225)
    The family members disputed who should have custody of the deceased's body and the right to make arrangements for the funeral. . .
    - Cited - Ibuna and Another v Arroyo and Another ChD (Bailii, [2012] EWHC 428 (Ch))
    The action concerns the competing claims as to the right to take possession of the body of Ignacio Arroyo ('Congressman Arroyo') to enable it to be buried. Congressman Arroyo was a congressman of the Negros Occidental Province of the Philippines. . .
    - Cited - Anstey v Mundle ChD ([2016] EWHC 1073 (Ch))
    When faced with a dispute as to the disposal of a deceased's body, the role of the court is not to give directions for the disposal of the body but to resolve disagreement about who may make the arrangements . .
    - Cited - Curtis v Sheffield CA ([1882] 21 ChD)
    Lord Jessel MR said: 'Now it is true that it is not the practice of the Court, and was not the practice of the Court of Chancery, to decide as to future rights, but to wait until the event has happened, unless a present right depends on the . .
    - Cited - Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security HL (lip, [1985] 3 All ER 402, [1986] AC 112, [1985] 3 WLR 830, Bailii, [1985] UKHL 7, [1986] 1 FLR 229)
    The claimant had young daughters. She challenged advice given to doctors by the second respondent allowing them to give contraceptive advice to girls under 16, and the right of the first defendant to act upon that advice. She objected that the . .
    - Cited - Public Trustee v Cooper ([2001] WTLR 901)
    The court looked at the circumstances when a court was asked to approve a proposed exercise by trustees of a discretion vested in them. The second category of circumstances was (quoting Robert Walker J): 'Where the issue was whether the proposed . .
    - Cited - Burke, Regina (on the Application of) v General Medical Council and others (Official Solicitor and others intervening) CA (Bailii, [2005] EWCA Civ 1003, Times 02-Aug-05, [2005] 2 FLR 1223, [2006] QB 273)
    The claimant suffered a congenital degenerative brain condition inevitably resulting in a future need to receive nutrition and hydration by artificial means. He was concerned that a decision might be taken by medical practitioners responsible for . .
    - Cited - Hartshorne v Gardner ChD (Bailii, [2008] EWHC B3 (Ch))
    The deceased died in a motor accident, aged 44. The parties, his mother and father, disputed control over his remains.
    Held: Since the claimants had an equal right as his parents to apply for letters of administration, that court could not, by . .
    - Applied - In re JSB; Chief Executive, Ministry of Social Development v S and B (Nzlii, [2010] 2 NZLR 236, [2009] NZHC 2054)
    (New Zealand High Court) The child was alive but severely brain damaged, having been injured by his mother. There was a dispute between his grandparents, who were caring for him, and his birth parents as to the funeral arrangements if he were to . .
    - Cited - Takamore v Clarke and others (Nzlii, SC 131/2011, [2012] NZSC 116, [2013] 2 NZLR 733)
    Supreme Court of New Zealand - The deceased was Tuhoe, but had spent the last twenty years of his life in Christchurch with his partner, whom he named his executor in his will. After his death his Tuhoe whanau moved his body to the Bay of Plenty and . .
    - Cited - Hughes and Others v Bourne and Others ChD (Bailii, [2012] EWHC 2232 (Ch))
    A trust owned a majority shareholding in a family firm. A purchaser wished to buy a substantial interest. Differing sections of the beneficiaries wanted either to sell or not. The trustees sought advance approval for a planned use of their powers to . .
(This list may be incomplete)
Jurisdiction: England and Wales

Last Update: 18-Nov-16
Wills and Probate, Children, Health Professions

See also: http://www.swarb.co.uk/re-js-disposal-o ... -nov-2016/
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