B e f o r e :
THE HONOURABLE MR JUSTICE PETER JACKSON
Sitting at the Royal Courts of Justice
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Between:
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Frances Judd QC & Dr Rob George (instructed by Dawson Cornwell) for the Applicant
Stephen Crispin (instructed by Bindmans) for the 1st
Respondent
Helen Khan (instructed by Kilic and Kilic Solicitors) for the 2nd
Respondent
William Tyler QC & Kate Tomkins (instructed by CAFCASS Legal) as Advocate to the Court
Christina Helden (Hempsons Solicitors) for the Hospital Trust
Hearing dates: 26 September, 4 October, 6 October 2016
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HTML VERSION OF JUDGMENT
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Crown Copyright ©
Mr Justice Peter Jackson:
- This judgment falls into three parts. The first part, determining the application, was delivered orally on 6 October. The second part, containing further legal analysis, was handed down on 19 October. The final part, concerning subsequent events, was handed down on 10 November.
PART 1 – 6 October 2016
- This urgent application comes before the court in sad circumstances and has been considered at hearings on 26 September, 4 October and 6 October.
- The applicant is a 14-year-old girl, known in these proceedings as
JS.
Last year, she was diagnosed with a rare form of cancer and now she is a hospital inpatient. Unfortunately, active treatment came to an end in August.
JS
is now
receiving
palliative care and she knows that she will soon die. Her case has come before the court because of the novel issues it raises and, particularly, because
JS's
parents are not in agreement about what is to happen after her death.
- A
reporting
restriction
order applies in this case. It prevents any
reporting
until one month after
JS
dies. After that, it prevents the identification of
JS
or her family or the hospital trust and its staff on an indefinite basis. Its terms are set out in the Appendix at the end of the judgment.
JS's
parents are divorced. For most of her life she has lived with her mother in the London area, and she has had no face-to-face contact with her father since 2008. For
reasons
that I need not describe, the
relationship
between the parents is very bad. Late last year, the father, who himself has cancer, became aware of
JS's
condition. He brought proceedings to be allowed to see her, but in December 2015 these ended with an order that he should have written contact only. The local authority was granted a Family Assistance Order in order to manage the indirect contact, and so
JS
has a social worker.
JS
has herself
refused
any contact with her father and does not want him to have detailed knowledge of her medical condition.
- Over
recent
months,
JS
has used the internet to investigate cryonics: the freezing of a dead body in the hope that
resuscitation
and a cure may be possible in the distant future.
- The scientific theory underlying cryonics is speculative and controversial, and there is considerable debate about its ethical implications. On the other hand, cryopreservation, the preservation of cells and tissues by freezing, is now a well-known process in certain branches of medicine, for example the preservation of sperm and embryos as part of fertility treatment. Cryonics is cryopreservation taken to its extreme.
- Since the first cryonic preservation in the 1960s, the process has been performed on very few individuals, numbering in the low hundreds. There are apparently two commercial organisations in the United States and one in Russia. The costs are high, or very high, depending on the level of
research
into the subject's case that is promised. The most basic arrangement (which has been chosen here) simply involves the freezing of the body in perpetuity. Even that will cost in the
region
of £37,000, according to the evidence in this case – about ten times as much as an average funeral. Although
JS's
family is not well-off, her maternal grandparents have raised the necessary funds.
- There is no doubt that
JS
has the capacity to bring this application. She is described by her experienced solicitor as a bright, intelligent young person who is able to articulate strongly held views on her current situation. Her social worker says that she has pursued her investigations with determination, even though a number of people have tried to dissuade her, and that she has not been coerced or steered by her family or anyone else.
JS
has written this: "I have been asked to explain why I want this unusual thing done. I'm only 14 years old and I don't want to die, but I know I am going to. I think being cryo-preserved gives me a chance to be cured and woken up, even in hundreds of years' time. I 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 supports
JS
in her wishes. Her father takes a different position, as I shall explain below.
- Cryonic preservation, whether or not it is scientifically valid,
requires
complex arrangements involving the participation of third parties. The body must be prepared within a very short time of death, ideally within minutes and at most within a few hours. Arrangements then have to be made for it to be transported by a
registered
funeral director to the premises in the United States where it is to be stored. These bridging arrangements are offered in the UK for payment by a voluntary non-profit organisation of cryonics enthusiasts, who are not medically trained. Evidently, where the subject dies in hospital, the cooperation of the hospital is necessary if the body is to be prepared by the volunteers. This situation gives rise to serious legal and ethical issues for the hospital trust, which has to act within the law and has duties to its other patients and to its staff.
- The Trust, speaking through its solicitor Ms Helden, has given outstanding assistance to the court. On 5 October, at my
request,
a meeting took place between a
representative
of the voluntary organisation and the doctors, nurses and other
representatives
of the hospital trust. I have
read
a note of the meeting, which
reviews
all the practical aspects of the plan and shows the careful thought that the Trust has given to the matter at a senior level. The outcome is that the hospital is willing to do what it properly can to cooperate for the sake of
JS,
because the prospect of her wishes being followed will
reduce
her agitation and distress about her impending death. The decision centres entirely on what is best for
JS.
The Trust is not endorsing cryonics: on the contrary, all the professionals feel deep unease about it.
- It is understood by all that the process can only go ahead if the volunteers have 24-48 hours' advance notice of the likely time of death to allow them to arrive at the hospital. If death occurs without warning, the process cannot take place.
- The Trust has also drawn attention to the terms of the Human Tissue Act 2004 and has liaised with the Human Tissue Authority ('the HTA'). Advice
received
from the HTA, for which I am again grateful, confirms that what is proposed in this case is not
regulated
by the statute and that accordingly the HTA currently has no
remit.
It is thought that the present situation was not contemplated when the legislation was passed. The HTA would be likely to make
representations
that activities of the present kind should be brought within the
regulatory
framework if they showed signs of increasing. It also raises questions about the standing of the voluntary organisation and draws attention to possible public health concerns and the position of the coroner.
- I have also been taken to the old authorities on the unlawful treatment of dead bodies (see Archbold 2017 at 31.54 onwards) but it does not appear that an offence would be committed in this case; in other words, what
JS
wants does not seem to be illegal.
- Enquiries have now been made of the United States authorities, who have confirmed that there is no prohibition on human
remains
being shipped to the US for cryonic preservation provided that the UK funeral director and the US commercial organisation are in communication to guarantee that local, state and federal
requirements
are complied with.
- No objection is raised by
JS's
social worker or her GP, who has provided information about the manner in which death is likely to be certified.
- The funeral directors are willing to attend at the hospital to ensure that the transportation of
JS's
body is appropriately supervised.
- So, despite all the difficulties, there is no inevitable practical obstacle to
JS's
body being transported to the United States for cryonic preservation.
- The father's position has understandably fluctuated. No other parent has ever been put in his position. It is not to be forgotten that he himself is facing serious illness, and is not able to discuss the matter with
JS
or her mother because of the extreme difficulties within the family. At the start of the proceedings, he was opposed. He was concerned that he might become
responsible
for the costs. He also wrote: "Even if the treatment is successful and [
JS]
is brought back to life in let's say 200 years, she may not find any
relative
and she might not
remember
things and she may be left in a desperate situation given that she is only 14 years old and will be in the United States of America." Despite this, during the course of the first hearing, the father, who was then unrepresented, changed his position, saying: "I
respect
the decisions she is making. This is the last and only thing she has asked from me. I would like to have written confirmation that I will not have to pay the costs as I have cancer and I live on benefits." However, by the second hearing, the father was legally
represented
and his position had changed again. He said that he was prepared to agree to what
JS
wanted on four conditions: that he and other members of his family could view her body after death; that the mother would not pursue any financial claims against him; that the mother and her family would not make any contact with him and his family; and that he would not be pursued for any contribution to the costs of the cryonic process. The father's last statement at this hearing was that he wants the court to know that he
respects
JS,
and that he will
respect
the court's decision.
- The father's first condition is objectionable to
JS.
- 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.
- I have heard arguments from the lawyers
representing
JS,
the mother, and the father. As described above, the hospital trust has also been
represented
and Mr William Tyler QC, instructed by Cafcass Legal, has acted as Advocate to the Court in
relation
to the legal issues. I address the detailed legal arguments in more detail below. At this stage, I will state my general approach and my conclusion.
- The first thing to note is that much of the current problem arises 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. My approach is therefore to try to
remove
the disadvantage that
JS
is under as
result
of her age. I do not intend to go further than that, as
JS
cannot be in a better legal position than she would be if she was an adult.
- Next, it is important to approach a problem of this kind on the basis of a
real
situation as opposed to theoretical possibilities. When the application first came before the court, it was not clear that
JS's
wishes could be carried out, because there was no information from the hospital or from the US authorities. Now that this and other information has been gathered, there is a practical plan that can be considered.
- Thirdly, the court is not making orders against third parties. The position of the various organisations and authorities has been set out above. All the court is doing is to provide a means of
resolving
the dispute between the parents.
- Fourthly, 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 are clearly a number of serious ethical issues, and I have
received
information about procedures performed on the body after death that would be disturbing to many people.
- Fifthly, I am acutely aware that this case gives rise to a large number of issues that cannot be investigated in the course of a hearing of this kind. If
regulation
is
required,
there would need to be consultation with a wide range of interested parties. That is a matter for others. This court is faced with a situation that needs immediate determination on the basis of the best available information. For the future, I shall direct that the papers in this case shall be
released
to the HTA on the basis that the identity of the family and the hospital trust will
remain
confidential.
- 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.
- Nor is this case about whether
JS's
wishes are sensible or not. 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.
- 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.
- Having considered all the arguments, my conclusion is that the court can and should do what it can to provide a means of
resolving
the dispute between
JS's
parents that hangs over the arrangements that are to be made after her death.
- Mr Tyler QC has presented arguments for and against the proposition that the court has a power that can be exercised now.
- Against the existence of the power is the fact that a person cannot control the disposition of their body after death (Williams v Williams, see below); that there may be a later 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 the power is that all parties are now
represented
before the court, whilst it will 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 will help third parties to know how they should act; that the arrangements for
JS
after death will be particularly complex if she is to be preserved; that
JS
does not want to be seen after death by her father or his family and the possibility that this might happen causes her present distress; and that consideration of
JS's
welfare during life, with her dependence on her mother who is herself under considerable stress, favours the ability to provide a
resolution
at the earliest opportunity.
- I am satisfied that the court has power to make the order
requested
by
JS
for the positive
reasons
just listed. In
relation
to the other considerations, a decision entrusting powers to the mother does not contravene the principle in Williams. The court is not deciding or approving what should happen, but is selecting the person best placed to make those decisions after
JS's
death. As to change of circumstances, this is a very deep and long-standing family breakdown and there is in my view no chance of a change in the time between now and
JS's
death. I acknowledge that this decision might conceivably encourage a small number of other pre-death applications, but if these were wrongly brought they could be dealt with accordingly. The policy concern cannot lead the court to decline to deal with a situation that demands
resolution,
and in fact the issue of viewing the body has only arisen here as a
result
of the condition imposed by the father in
response
to
JS's
application.
- Turning to the merits: as to cryonic preservation, I fully understand the father's misgivings. However, his role in
JS's
life has been extremely limited in
recent
years. His new
request
to see
JS
after her death can only cause her distress in life. His other conditions, some of which have nothing to do with
JS,
carry no
real
weight. As to
responsibility
for payment for cryonic preservation, there is no way in which he could possibly be held liable.
- As to viewing
JS's
body, Miss Khan argues on the father's behalf that the court cannot and should not make any decision that prevents him and his family making an application to see
JS's
body after death.
- 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. An order placing the arrangements after
JS's
death in the hands of her mother will inevitably exclude the father, including by depriving him of the ability to view the body. That is a serious conclusion, but it is 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 makes it impossible to accommodate the father's wishes. The decision would be the same after
JS's
death and in the meantime the whole family and those helping them would be deprived of the benefits of clarity.
- Therefore, both as to preservation of the body and as to the question of who should be permitted to view it, I conclude that the mother is best placed to manage this unusual and difficult situation. I will therefore make orders placing
responsibility
in her hands and prevent the father from intervening. These orders will consist of:
(1) A specific issue order permitting the mother to continue to make arrangements during
JS's
lifetime for the preservation of her body after death.
(2) An injunction in personam preventing the father from
(i) Applying for a grant of administration in
respect
of
JS's
estate.
(ii) Making or attempting to make arrangements for the disposal of
JS's
body.
(iii) Interfering with arrangements made by the mother with
respect
to the disposal of
JS's
body.
(3) A prospective order under s.116 of the Senior Courts Act 1981, alternatively 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.
(4) An order for disclosure of the papers to the Human Tissue Authority.
- I will not make a prohibited steps order over and above the injunctions. The father has given an assurance that he will not try to see
JS
during her lifetime against her will and such an order is not in my view necessary. The
real
issue here
relates
to the dispute that would arise after death.
- I thank everyone in court for the help that they have given. I express my sympathy to
JS
and to all her family members at this sad time. I hope that the outcome may help
JS
to spend her
remaining
days in peace.
PART 2 – 19 October 2016
- I turn in more detail to the legal issues.
Specific issue order
- The making of a specific issue order raises no special difficulty. By s.8 Children Act 1989 a specific issue order is "an order giving directions for the purpose of determining a specific question which has arisen, or which may arise, in connection with any aspect of parental
responsibility
for a child." The Act applies to parental
responsibility
for a child, defined as a person under the age of 18. It does not extend to
regulating
events arising after the child's death. See, for example, R v Gwynedd County Council, ex p. B [1992] 3 All ER 317, a decision under the Child Care Act 1980; also Fessi v Whitmore [1999] 1 FLR 767.
- The making of a specific issue order is governed by the welfare principle. In this case the predominant features are
JS's
wishes and feelings and her acute emotional needs. These are best met by an order granting the mother the right to make arrangements during
JS's
lifetime for the preservation of her body after death. In making this order, the court is not approving the choice of arrangements, but it is giving
JS
and her mother the opportunity to make that choice.
Disposition of a body
- The law in
relation
to the disposition of a dead body emanates from the decision of Kay J in Williams v Williams [1882] LR 20 ChD 659, which establishes that a dead body is not property and therefore 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. The concept of 'proper disposal' is not defined, but it is to be noted that customs change over time. It was not until the end of the 19th century that cremation was
recognised
as lawful in the United Kingdom, and it was in due course
regulated
by the Cremation Act 1902. Nowadays cremation is chosen in about 3 out of 4 cases in this country.
- Thus, in English law, there is no right to dictate the treatment of one's body after death. This is so
regardless
of testamentary capacity or
religion.
The wishes of the deceased are
relevant,
perhaps highly so, but are not determinative and cannot bind third parties. For discussion of the impact of the European Convention on Human Rights on the common law in this
respect,
see Burrows v HM Coroner for Preston [2008]
EWHC
1387 (QB) and Ibuna v Arroyo [2012]
EWHC
428 (Ch).
- 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: see, for example, Anstey v Mundle [2016]
EWHC
1073 (Ch).
- A person under the age of 18 cannot make a valid will: Wills Act 1837 s.7. In this case,
JS's
parents will each be 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 her body.
- Disputes between executors or administrators about the disposition of a body have been dealt with either in the manner of the
resolution
of a dispute between trustees (see Fessi and Hartshorne v Gardner [2008]
EWHC
B3 (Ch)) or as an application to displace the administrator of an estate, pursuant to s.116 of the Supreme Court Act 1981 (see Burrows and Ibuna).
- Section 116
reads:
116 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.
- Where, as here, more than one person is entitled to a grant of administration, I would interpret this section as permitting the court to substitute one for both. If I am wrong about this, I would hold that the same
result
could be achieved by the court's use of its inherent jurisdiction. See, for example, Hartshorne.
- I have no doubt that the circumstances of the present case are 'special' within the meaning of the section. In Buchanan v Milton [1999] 2 FLR 844, Hale J found this condition satisfied in a case concerning a dispute about the disposal of the
remains
of man who had been born into an aboriginal family in Australia, but adopted as a child in England. Here, the nature of the family breakdown and of
JS's
wishes would, I find, qualify as special circumstances.
Prospective decisions
- Can a prospective order be made in life, to take effect after death? All the cases cited above have involved disputes litigated after the death. In this case, there is no time for litigation after death.
- There is ample authority for the proposition that the court should not stray into deciding hypothetical questions: Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 at 193-4 (Lord Bridge) and R (Burke) v General Medical Council [2005] EWCA Civ 1003 at 21 (Lord Phillips MR). That is not the position here: this is an actual problem that needs to be
resolved
now, albeit the
resolution
will play out at a future date.
- There is authority on the legitimacy of making decisions about situations that are clearly foreseen but yet to arise. In Curtis v Sheffield [1882] 21 ChD (CA), Jessel MR stated:
"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 decisions, or there are some other special circumstances to satisfy the Court that it is desirable at once to decide on the future rights. But where all the parties who in any event will be entitled to the property are of age and are
ready
to argue the case, the
reason
of the rule departs, and it becomes a bare technicality. The
reason
of the rule is this, that the Court will not decide on future rights, because until the event happens it does not know who may be interested in arguing the question, and therefore may be shutting out parties who, when the event happens, may be entitled to succeed, but where they are all of age, and every possible party is
represented
before the Court, as I said before, utility seems to say that there should be a power to determine their rights, as is the case in Scotland and in many other countries."
- Mr Crispin has also drawn attention to the decision of Henderson J in a case where trustees had sought advance approval for a planned use of their powers: Hugh v Bourne [2012]
EWHC
2232 (Ch):
[15] For their part, the Trustees have made it clear… that they do not wish to surrender their discretion to the court, but are instead asking the court to give its blessing to their proposed course of action. The application therefore falls within the second category identified by Robert Walker J (as he then was) in a judgment given in chambers in 1995 and cited by Hart J in The Public Trustee v Cooper [2001] WTLR 922 at 923:
"The second category is where the issue is whether the proposed course of action is a proper exercise of the trustees' powers where there is no
real
doubt as to the nature of the trustees' powers and the trustees have decided how they want to exercise them but, because the decision is particularly momentous, the trustees wish to obtain the blessing of the court for the action on which they have
resolved
and which is within their powers. Obvious examples of that, which are very familiar in the Chancery Division, are a decision by trustees to sell a family estate or to sell a controlling holding in a family company. In such circumstances there is no doubt at all as to the extent of the trustees' powers nor is there any doubt as to what the trustees want to do but they think it prudent and the court will give them their costs of doing so to obtain the court's blessing on a momentous decision. …"
- I conclude that, acting with due
regard
for the above principles, the court has the power to make a decision with prospective effect in the present case. To 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 ECHR or otherwise. It can certainly be said that there are other special circumstances to satisfy the court that it is desirable at once to decide on the future rights. Then, to use the words of Robert Walker J, there is no
real
doubt about the way in which the power would be exercised, or about the momentous nature of the decision. There is no likelihood of a change of circumstances and all interested parties are before the court. I find that the power exists and that, taking account of all the considerations listed at paragraphs 35 and 36 above, it should be exercised in this case.
- I note that the High Court of New Zealand has exercised prospective jurisdiction in somewhat analogous circumstances. In
Re
JSB
(A Child) [2010] 2 NZLR 236 (HC), it was held by Heath J that a jurisdiction existed before a child's death to decide appropriate funeral arrangements after death. 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 die.
- Heath J held (consistently with my conclusion about specific issue orders) that the court had no jurisdiction to make guardianship orders which would take effect only on death, as on death guardianship
responsibilities
end. However, he continued:
"[55] Parens patriae and administration are two manifestations of the inherent jurisdiction. Together, they demonstrate the existence of jurisdiction applying to a continuum, from the beginning of life until after its end. While the former is directed to the living and the latter to the dead, s.16 of the Judicature Act draws no distinction between aspects of the inherent jurisdiction. The existence of the continuum favours this Court's ability to do such things as are necessary to protect the interests of the living child, after death.
[56] Viewed as a continuum, the inherent jurisdiction covers the very situation that has arisen in this case. Provided that there is justification for the view that an order is
required,
while
JSB
is alive, to protect his best interests after death, I hold that the inherent jurisdiction can be used to make such an order. The fact that any order might deal with a topic at the intersection of the two
relevant
aspects of the inherent jurisdiction is, in my view, irrelevant. The continuum approach militates against a sharp distinction between different aspects of the Court's jurisdiction. Power to make an order arises from a single source: the inherent jurisdiction."
- In fact, this analysis was not decisive, as Heath J concluded that an order in that case would be premature. His decision was however noted by the New Zealand Supreme Court in Takamore v Clarke [2012] NZSC 116, at para 91, a case concerning a disagreement arising after death.
- In my view, the analysis in
JSB,
focusing on the continuum of the inherent jurisdiction, is best seen in the context of the New Zealand legislation
referred
to in the judgment: s.16 of the Judicature Act 1908, provides the High Court of New Zealand with "all judicial jurisdiction which may be necessary to administer the laws of New Zealand". There is no equivalent provision in English law, and I would therefore not conceptualise the matter in the same way. However, it is of note that that court came to the same essential conclusion as to the ability to make prospective orders where necessary.
Conclusion
- 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.
Postscript
- On 7 October, the day after the hearing, I
received
a message from
JS
through her solicitor saying that she would like to meet the judge who had decided her case. I visited her in hospital that evening in the presence of her mother and we had a good discussion. I was moved by the valiant way in which she was facing her predicament.
- On 17 October,
JS
died.
Part 3 – 10 November 2016
- On 8 November, I
received
a detailed note from the solicitors for the hospital trust in which the events surrounding
JS's
death are described from the point of view of the hospital. It
records
that
JS
died peacefully in the knowledge that her body would be preserved in the way she wished.
- However, the note makes unhappy
reading
in other ways. The Trust expresses very
real
misgivings about what occurred on the day of
JS's
death. In brief and understated summary:
(1) On
JS's
last day, her mother is said to have been preoccupied with the post-mortem arrangements at the expense of being fully available to
JS.
(2) The voluntary organisation is said to have been under-equipped and disorganised,
resulting
in pressure being placed on the hospital to allow procedures that had not been agreed. Although the preparation of
JS's
body for cryogenic preservation was completed, the way in which the process was handled caused
real
concern to the medical and mortuary staff.
- These proceedings have come to an end and I make no findings about the above matters, on which I have in any event not heard other views. I nonetheless approve the intention of the Trust to send a copy of the note and its accompanying documents to the Human Tissue Authority. 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.
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Extract from
Reporting
Restriction
Order of 6 October 2016
Prohibited publications
Short-term Injunction:
- Subject to the "territorial limitation" above, this order prohibits the publishing or broadcasting in any newspaper, magazine, public computer network, internet website, social networking website, sound or television broadcast or cable or satellite program service for the purposes of preventing the identification (whether directly or indirectly) of any information
relating
to this case.
This prohibition lasts until 1 month after the death of the Child. The applicant's solicitors are to notify the Press Association that the Child has died as soon as they are aware of that fact.
Continuing Injunction:
- Subject to the "territorial limitation" above, this order prohibits the publishing or broadcasting in any newspaper, magazine, public computer network, internet website, social networking website, sound or television broadcast or cable or satellite program service (whether directly or indirectly) until further order of the names, addresses or photographs of, or other information that might identify:
(a) the Child (whose details are set out in paragraph 1 above), or
(b) the Mother or the Father (whose details are also set out in paragraph 1 above)
if, but only if, such publication is likely, whether directly or indirectly, to lead to the identification of the child as being:
i) a child subject of proceedings under the inherent jurisdiction of the High Court; and/or
ii) a child who was diagnosed with, treated for or died as a
result
of cancer…; and/or
iii) a child involved with a proposed future or actual (as the case may be) cryo-preservation process.
- Subject to the "territorial limitation" above, this order prohibits the publishing or broadcasting in any newspaper, magazine, public computer network, internet website, social networking website, sound or television broadcast or cable or satellite program service of the names and professional addresses until further order of any of the following individuals or organisations as being concerned in the care and treatment of the Child before and / or after her death:
(a) [the hospital trust] or any hospital within that trust
(b) [the local authority]
(c) any social worker or other employee of [the local authority] directly involved in working with the child or the family
(d) any medical professional directly involved in the care or treatment of the child.
- No publication of the text or summary of this order or the supporting documents (except as provided for below under "service of this order") shall include any of the matters
referred
to in paragraphs 9, 10, or 11 of this order.
Permitted publications
- Nothing in this order shall prevent any person from:
a) publishing information
relating
to any part of a hearing in a court in England and Wales (including a coroner's court) in which the court was sitting in public and did not itself make any order
restricting
publication;
b) seeking or publishing information which is not
restricted
by the section "prohibited publications" above;
c) enquiring whether a person or place falls within the section "prohibited publications" above;
d) seeking information
relating
to the child while acting in a manner authorised by statute or by any court in England and Wales;
e) seeking information from the lead solicitor acting for the applicant, whose details are set out under "the parties" above;
f) seeking or
receiving
information from anyone who before making of this order had previously approached that person with the purpose of volunteering information (but this paragraph will not make lawful the provision or
receipt
of private information which would otherwise be unlawful);
g) discussing or
reporting upon the legal issues arising from the process of cryo-preservation
h) ….
Duration of this order
- Subject to any different order made in the meantime, paragraph 9 of this order shall as stated have effect until one calendar month following the death of the child.
- Subject to any different order made in the meantime, paragraphs 10 and 11 of this order shall have effect until further order of the High Court.
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