Cryogenics and the law in Re JS

Posted: 28/11/2016

This November, another one of Peter Jackson J’s judgments has been thrust into the spotlight. Earlier in the year, his decision in a care case (Lancashire County Council v M and others [2016] EWFC 9) attracted press coverage for the use of emojis in the judgment. The ruling was a breath of fresh air in terms of the use of plain language to make it truly accessible to those most impacted by it, the children’s family and the children themselves and was very positively welcomed by the family law community.

This time, it is the issue of cryogenic freezing which has captured the media’s attention.  In Re JS (Disposal of Body) [2016] EWHC 2859 (Re JS), Peter Jackson J heard a child’s application for a legal first: a specific issue order to direct that her body be preserved by cryogenic freezing. This came about because the child’s parents could not agree whether to respect and abide by her wish to have her body preserved following her battle with terminal cancer.

The mother supported the child’s wish and the maternal grandparents had generated £37,000 in funding to meet the costs of the procedure. The father, who although previously estranged from the child had reached out to her after learning about her cancer, opposed his daughter’s request. He later agreed to the request, subject to certain conditions such as being allowed to see the child’s body before it was prepared for the procedure.

Although this was an unprecedented request, Peter Jackson J applied the legal principles which are relevant in all specific issue orders. As the name suggests, a specific issue order is “an order giving directions for the purpose of determining a specific question which has arisen, or which may arise” and which cannot be agreed upon by those who are entitled to make such applications (such as the parents of this young lady who was 14 years old).  It is made under section 8 of the Children Act 1989.

Peter Jackson J made it clear in his judgment that his decision was based on the same criteria under which all section 8 orders are assessed, putting the child’s welfare first.

He concluded that the teenager had clear and well-articulated views as to how she wished her body to be preserved upon her death. He did not provide any moral judgement as to the merits or otherwise of this kind of procedure. Rather his determination focused upon the child’s wishes and feelings. He observed that empowering the child with the knowledge as to how her body would be dealt with after her passing would make the rest of her short life easier to cope with. It is an incredibly moving judgment and one can only imagine the emotional circumstances under which Peter Jackson J visited the child in hospital to hear her views before she died.

This was a rare and unique request. However, family practitioners grapple with more common specific issue order applications which are made to invite the court’s assistance in resolving a specific question: for example, where a child is going to be educated, what a child is going to be called or how a child’s passport is to be held. Thankfully, it is unlikely that there will be a flurry of similar applications to this one. However, Re JS brings specific issue orders to the forefront and, given the extensive media interest, it is likely to result in further requests for the court to resolve disputes about a child in this way.

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