Re: JS (Disposal of Body) is an extremely tragic case heard by Mr Justice Peter Jackson, he of “emoji judgment” fame.
Sadly, much of the mainstream reporting of this decision has been sensationalist and misinformed, with headlines suggesting it establishes a right to cryopreservation upon death; however, consideration of the judgment itself reveals the essence of the case to be a fairly standard welfare decision in the context of a dispute between two parents, with no intention whatsoever to establish such a precedent for other cases.
The facts of the case are relatively straightforward, albeit tragic and unusual. JS was a 14-year-old girl suffering from a rare form of incurable cancer; she had expressed the wish for her body to be cryogenically frozen upon death, in the hope that in years to come she might be resuscitated when a cure for her condition is found.
Unfortunately, JS’s father, estranged from the family since 2008 and himself a cancer sufferer, did not wish for the cryonics procedure to be undertaken, was concerned that he not be pursued for any of the considerable costs thereof, and requested that he and other members of the family be able to view JS’s body after death. Having spent little time with the Father since his estrangement, JS objected to this request, and neither she nor her Mother wanted the father involved in the arrangements in any way, either before or after her death; JS accordingly sought orders granting the mother and denying the father the right to make welfare decisions for her, thereby enabling the mother to make the necessary preparations before her death for the cryonic procedure, which required special arrangements with a particular organisation.
In the end, this was achieved by the Court making the following orders:
- A specific issue order permitting the mother to continue to make arrangements during JS's lifetime for the preservation of her body after death;
- An injunction 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 interfering with arrangements made by the mother in respect of the disposal of JS's body;
- A prospective order under s.116 of the Senior Courts Act 1981 (or alternatively under the inherent jurisdiction), to take effect upon JS's death appointing the mother as the sole administrator of her estate and specifically that the mother shall have the right to make arrangements for the disposal of the body and to decide who should be permitted to view it;
There was also an order preventing any reporting of the judgment until a month after the daughter’s death, which sad event occurred on 17 October. Thus it was that the newspapers could not report the case until recently.
Had JS been over 18, this would have created no difficulties; she could have appointed her mother as executor, and it would have been for the mother to make arrangements for the disposal of JS’s body, doubtless in accordance with her wishes. However, children cannot make wills; Peter Jackson J’s approach was to try to remove the disadvantage that JS was under as result of her age.
The Judge was careful to emphasise that the Court in this case simply provided a means of resolving the dispute between JS's parents that hung over the arrangements to be made after her death, and did not make any judicial pronouncement on the desirability or otherwise of cryonic preservation, whether it has any scientific basis, or whether it is right or wrong.
Contrary to much of the mainstream reporting of the case, the court did not approve or encourage cryonics, or order that JS’s body should be cryonically preserved; Peter Jackson J further emphasised that he was not deciding or approving what should happen, but rather selecting the person best placed to make those decisions after JS’s death.
The Judge was clear in his judgment that he was considering the wishes and feelings of the child. In any matter concerning children, the Court’s paramount concern is their welfare; whilst the circumstances of this case are unique, the judgment exemplified the power that the Welfare Checklist has in any matter concerning children.
There is no new law in JS’s case, only the application of existing principles to new and tragically unique facts. To quote from the judgment, the case was decided “in accordance with established principle, or with principle correctly established”. Indeed, the only novel legal aspect of this case is that the dispute was litigated before JS's death, and the only new ‘right’ that may have been established is the entitlement “to know whether or not [JS's wishes] 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”.
Mr Justice Peter Jackson will undoubtedly have been well aware that his judgment would make the national and international headlines, and so he was seemingly at pains to be clear therein as to his reasoning and intentions. Sadly, the manner in which the decision has been almost ubiquitously reported in the mainstream press shows the Judge's specified intentions to have been disregarded by many journalists, and serves as a stark reminder that readers should look beyond the headlines to primary sources.