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Everyone wants to live a little longer, don’t they?

Cryo-preservation is now a long-standing medical method and is used, for example, to freeze embryos as part of fertility treatment. More recently this has been taken further and it is possible to preserve the entire human body in the hope that it can be revived one day. The Family Division of the High Court has recently been faced with a novel set of facts involving a terminally ill 14 year old girl wishing to be frozen in perpetuity, in the hope that she can one day be resuscitated. The case highlights the new questions that science poses to family law, childhood illness and family conflict.

Re JS (Disposal of Body) [2016] EWHC 2859 (Fam) involves parents of a 14 year child that were separated for a number of years, the last time the father had seen the child was in 2008. The father himself was suffering from cancer, when he found out the child was also ill he commenced proceedings for contact. Those proceedings ended in December 2015 with only indirect contact by way of letters being granted to the father. The parents’ relationship was far from amicable and the child was also actively opposed to having any direct contact with the father.

In the simplest of terms, the dispute came down to the mother being in support of the child’s wishes of cryo-preservation, and the father not supporting the child’s wishes. The father always wanted to view the child’s body after death, to which the child and mother objected. JS was obstructed from making a valid will by the confines of the law, in that she was a child. Therefore she could not simply direct executors as to how her body should be treated after death. The arguments to and for a child being able to make a will are beyond the confines of this article, but it has been good law since 1837 that to make a valid will you must be aged 18. Jackson J sought to remove this inequality of the law – the age factor – but made it clear he would not seek to put her in a better legal position than that of an adult. By carrying out her wishes, s9 of the Wills Act 1837 was essentially circumvented in these very unusual circumstances.

The decision does not encourage cryo-preservation nor denounce it, it was made clear an individual’s body is his own and the court was merely resolving a familial dispute. The facts required an urgent decision due to the child’s health continuing to deteriorate and if cryo-preservation was going to be allowed after her death, then steps would need to be taken within minutes following the child passing. The child herself was also visibly distressed from awaiting a decision in knowing there was a possibility her wishes may not be fulfilled.

Jackson J concluded the mother was best placed to deal with the body following death, which would inevitably prevent the father from viewing it. A Specific Issue Order under s8 of the Children Act 1989 was made, orders under this Act being governed by the welfare principle and predominant factors in making the decision were JS’s wishes, feelings and emotional needs. The order was made permitting the mother to make arrangements during JS’s lifetime for the preservation of her body after death, and an in junction in personam preventing the father from applying to administer JS’s estate after her death, to make arrangements for JS’s death or interfere with the mother’s arrangements. A prospective order was also made so that the mother was made sole administrator of JS’s estate as opposed to mother and father jointly. By making an order placing the arrangements of JS’s death to the mother this inevitably excluded the father from being able to view JS’s body after her death. Jackson J found the difficulties within the family made it impossible to accommodate the father’s wishes.

JS herself brought the proceedings and throughout it was fully aware of the contents of the litigation. JS even wrote to the court stating she didn’t want to die but that she knew she was going to, and that being cryo-preserved gives her at least the chance to live longer. On 7th October, after the decision had been made, Jackson J met with JS in hospital upon her request. It is clear that throughout these proceedings JS played an active role and had a voice. Whilst proceedings under the Children Act 1989 involve acting in the child’s best interests, often the courts will fail to appreciate that the child is anything more than just the subject of proceedings.

Article 3 of the UNCRC provides that in all ‘actions’ concerning a child the ‘best interests shall be a primary consideration’. Article 12(1) further confirms it is for state parties to ensure a child who is ‘capable of forming his or her own views’; those views are to be given weight in accordance with the child’s age and maturity. Article 12(2) goes on to state this is to be observed particularly in judicial proceedings concerning the child. Whilst the UK has not incorporated the Convention into English law, it has been recognised.

The need to include children and young people in proceedings, which directly concern and affect them, is a growing issue. The Report of the Vulnerable Witnesses & Children Working Group February 2011, headed by Russell J and Hayden J, found that direct evidence of children is seldom heard or available within the family courts. In Mabon v Mabon [2005] EWCA Civ 634 it was held that it is necessary for the courts give weight to the autonomy and consequential rights of children. When a child is of an age where they are able to articulate their views they will arguably always want to be heard. But the law continues to side-line exclude children participating within proceedings concerning them The obstacles faced when seeking to make children a party to private law proceedings are often insurmountable. The threshold to be reached in Rule 16.2 is high. Section 1 of Part 4 of the Practice Direction states making a child party is a step that will only be taken in cases involving an issue of ‘significant difficulty’ and will only occur in a ‘minority of cases’. It is therefore inherently recognised within the practice direction that children being made a party to proceedings will be an unlikely occurrence.

Lady Hale has advocated the need for Judges to meet children who are involved in proceedings, noting advantages such as the court seeing the child as a real person rather than the subject of proceedings and the child themselves feeling values and respected rather than feeling like decisions are being made against their will.

In Re LC [2014] the father made an application to appeal summary return in Hague Convention proceedings on the basis that the children’s habitual residence was no longer Spain. An application was made under rule 16.2 for the oldest child, who was almost 13 years old, to be made party to proceedings. The child herself also vehemently opposed the return. It was submitted that the child had reached a degree of maturity where she was able to articulate her wishes and this should be taken into account in accordance with Article 13 of the Convention. The child was refused permission to be made party to proceedings by Cobb J and appealed to the Court of Appeal, which was dismissed, and then appealed to the Supreme Court. It was reiterated that the rules stated a child can be made party to proceedings if it would be in their best interests under s16.2 FPR 2010. On appeal Lord Wilson concluded the child should be made party to enable evidence to be presented to the court solely from her standpoint. Lady Hale further stated the position of children who move from country to country (i.e. in Hague Convention proceedings), the child’s perception is as important as the parents in reaching a correct conclusion. The crucial nature of the child participating in Hague proceedings is heightened when one considers that habitual residence is the first hurdle a court will consider in these applications, before moving to consider defences, thus if habitual residence is not correctly determined the court will inevitably reach a decision incorrect in law. In determining habitual residence the court will take into account the child’s stability and degree of integration into the country to which they have been removed. If a child is of an age where they are able to voice their views and would like to be heard, then refusing party status arguably cannot be reconciled with acting in the child’s best interests.

In care cases where a child is already party to proceedings, circumstances may arise where it the child giving evidence would assist other parties’ positions. In Re W (Children) (Family Proceedings: Evidence) [2010] UKSC 12 Lady Hale set aside the presumption against children giving evidence in Children Act 1989 proceedings. The approach the family courts must take in determining whether a child is to give oral evidence is weighing the advantages the evidence may bring to reaching a decision against the damage to the child’s welfare, or any other child. The presumption in favour of children not giving evidence could not be reconciled with ECHR jurisprudence, namely the requirement that a fair balance be struck between the competing convention rights of the parties involved – Article 6 (right to a fair trial) and Article 8 (right to a private and family life). The court is also to take into consideration how any risk to the welfare of the child can be minimised if the child is to be cross-examined, for example by way of video link or the assistance of an intermediary.

The issue of children giving evidence was revisited in Re B (Child evidence) [2014] EWCA Civ 1015. The case involved an application for contact by a father, which was opposed by the mother for, reasons including a history of domestic violence which she submitted her older 13 year old child, G, had been witness to. The Judge at first instance ordered a CAFCASS s7 report to consider whether G should be cross-examined, whether it should be by video link or other means. The father’s appeal was dismissed and it was noted that Re W applies equally to private law proceedings as it does to public law proceedings and that whilst parents understand the harm-calling children to give evidence can do, parents will only be persuaded to do so by a very good reason. Re W was essentially reaffirmed as the guidance to be considered by judges in making a decision as to whether a child should give evidence. However, in Re E [2016] EWCA Civ 473 MacFarlane LJ noted the Re W decision was not being followed and that there was a continuing culture of the pre Re W position. The result of this being children roles in family proceedings continuing to be minimised.

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