The papers are full today of the tragic case of a 14 year-old girl with terminal cancer who did not wish to die. She told her mother that after her death she wished to have her body cryogenically frozen and thus there was the possibility she could come back to life. Her mother agreed and the mother’s parents raised the sum of £37,000 to allow this to happen in the United States. The father, who also needed to consent as her parent even though she had not seen him since 2008, refused to do so and was concerned he might be required to contribute to the cost.
What we are going to look in this post is how in law the child’s wishes were carried out.
First of all, a child cannot make a will. Even if this case involved an adult, a will can only give an indication of what the person concerned wishes to happen to their body after death. It does not have the legal force of law.
When children die, they do so “intestate” without a will.
In law, both parents have the right to apply for “Letters of Administration” to deal with the estate of their child. This includes the right to deal with the child’s body.
Readers of this blog will know we tackled a similar, equally tragic case pro bono for a mother recently. In that case, the father had killed the child and refused to allow the mother to dispose of the body. The child’s remains had stayed with the undertaker for a year before we got involved. We obtained Letters of Administration for the mother in those tragic circumstances, bypassing any rights of the father given the circumstances, and the child was laid to rest in accordance with the mother’s wishes. Sometime later, the mother herself tragically passed away.
In this case, both parents were in dispute. Time was absolutely of the essence given the nature of what the child wanted. The court was unusually being asked to make orders prior to a death. The court not only had to prevent the father from applying for Letters of Administration but also to make orders in advance of the child’s death granting Letters of Administration to the mother and permitting her to take those steps immediately on the death of the child.
Mr Justice Peter Jackson determined the court had jurisdiction to take all these steps and thus made an order in the interests of the child, injuncting the father. The Judge made orders to take effect on the child’s death granting the mother sole right to Letters of Administration and permitting her to have the child’s body cryogenically frozen.
The Judge then went further and ten days before the child passed away, at the child’s request, went to visit her in hospital. No doubt this was to explain what orders he had made and set her mind at rest. It’s hard to imagine how difficult that must have been for him and all credit to him for doing so.
As a family lawyer, I know there are tragic cases to be dealt with objectively and professionally, including when I have been instructed to discuss with a dying person what is to happen to the children on that parent’s death with instructions to carry them out if opposed by the other parent. The dying parent can only express a wish by will and ultimately it would be up to a court to decide.
My colleague Jane Gray, who specialises in wills and probate cases, represented the bereaved mother I mentioned above who was trying to have her child’s remains laid to rest as she wished. I know from the very grateful thanks she received from all the family afterwards how she dealt with a difficult case in her usual careful and deeply caring way. But it wasn’t easy.
Family law also covers many areas that are thankfully rare but when they do occur it challenges the best of us to deal with them.
Read the full High Court judgment here.