Re JSB (A Child) HC Auckland Civ-2004-404-3116
[2009] NZHC 2054
•4 November 2009
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PURSUANT TO SECTION 139 OF THE CARE OF CHILDREN ACT 2004
ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SECTIONS
11B-11D OF THE FAMILY COURTS ACT 1980
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2004-404-3116
IN THE MATTER OF JSB (A CHILD)
BETWEEN CHIEF EXECUTIVE, MINISTRY OF SOCIAL DEVELOPMENT
Plaintiff
ANDTS AND SB Defendants
Hearing: 15 October 2009
Counsel: A Brown, Lawyer for Child
E Parsons, Counsel to Assist the Court
R F von Keisenberg for Defendants
C M Earl for HB
C R Gwyn for Attorney-GeneralL M Fong for Chief Executive (Court's agent) G Bingham for BOP District Health Board
Judgment: 4 November 2009
Reasons: 16 November 2009
REASONS FOR JUDGMENT OF HEATH J
Solicitors/Counsel:
A Brown, PO Box 13284, Tauranga
Crown Law Office, PO Box 2858, Wellington
BOP District Health Board, Private Bag 12024, Tauranga (G Bingham) E Parsons, PO Box 46 318, Herne Bay, Auckland
R F von Keisenberg, PO Box 42258, Orakei, Auckland
C M Earl, PO Box 9337, Hamilton
CHIEF EXECUTIVE, MINISTRY OF SOCIAL DEVELOPMENT V TS AND SB HC AK CIV 2004-404-3116
4 November 2009
Contents
Introduction [1] Administration of the Court’s guardianship of JSB [17] Potential sources of jurisdiction [25] Is there jurisdiction under the Care of Children Act 2004? [28] Can the inherent jurisdiction be invoked? [49] Should the discretion to make an order be exercised? [57] Conclusion [85]
Introduction
[1] On 29 April 2004, TS and SB celebrated the birth of their baby boy JSB. Less than two months later, on 15 June 2004, JSB’s brain was severely damaged as a result of injuries inflicted deliberately by his mother, TS. Now aged five years, JSB’s only ability to respond to other human beings is by touch.
[2] On 18 June 2004, JSB was placed under the guardianship of this Court. The order was made under the Guardianship Act 1968 (the 1968 Act). The Court appointed the Chief Executive of the Department of Child, Youth and Family Services (the Chief Executive) as the Court’s general agent. JSB remains subject to the Court’s guardianship.
[3] TS was prosecuted for causing grievous bodily harm to JSB, with intent to do so. During the course of a jury trial, she entered a plea of guilty to the charge. TS was sentenced, on 23 September 2005, to a term of imprisonment of six years. The underlying facts on which the sentence was based are set out fully in a report of my sentencing notes: (2005) 22 CRNZ 126 (HC).
[4] While in prison TS married JSB’s father, SB. TS has since been released from prison, on parole. She and SB are living in the lower North Island. As a term of her parole, TS is forbidden from having contact with JSB.
[5] In late August 2009, JSB suffered a medical episode that gave clinicians serious cause for concern that he may die imminently. JSB was in hospital and was struggling to breathe. His condition was deteriorating and there were fears for his life. Lawyer for the Child, Ms Brown, sought directions from the Court in an
endeavour to resolve, in advance, a potential conflict between the biological parents and JSB’s paternal grandmother (HB) over what should become of his remains, if he were to die. HB is the family member who has had most contact with JSB during his lifetime.
[6] Ms Brown’s application raised difficult issues. The first was one of jurisdiction: can the Court make an order, in relation to a living child under its guardianship, that would only come into effect after death? In other words, does a Court ordered guardianship end on death? The second, if jurisdiction were to exist, was one of discretion: in the circumstances, should any order be made?
[7] Ms Brown’s application came before me, as Duty Judge, at about 6.30pm on the evening of 24 September 2009, on a without notice basis. I heard from Ms Brown by telephone. I formed the view that there was a reasonable possibility of imminent death and that interim orders ought to be made to avoid an unseemly dispute over JSB’s body, if he were to die. In a Minute issued that night, I said:
[11] I am satisfied that some interim orders are required and that the issues raised by Ms Brown require to be dealt with promptly. To achieve that end, I make the following orders:
[a]I shall appoint Counsel to Assist the Court. I shall make an appointment tomorrow, that the Registrar shall notify to Ms Brown. The role of Counsel to Assist the Court will be to provide submissions as to the rights of biological parents, in the circumstances disclosed in this case.
[b]Ms Brown shall arrange for service of her memorandum, together with all supporting material and cases and all orders of the Court relating to its guardianship of [JSB] by midday on Monday 28 September 2009. Service shall be effected on the four entities listed in para [7] above and the paternal grandmother, [HB].
[c]Counsel to Assist the Court shall be responsible for contacting the biological parents to explain the process to be undertaken, to explain their position and to indicate the steps he or she will be taking to safeguard their interests. That will include their right to instruct their own lawyer and to be heard on Ms Brown’s application.
[d]Pending further order of the Court, Ms Brown and the paternal grandmother, [HB] are appointed as the Court’s agents, with exclusive power, subject to Court directions, to deal with representatives of the Bay of Plenty District Health
Board and to give any instructions in respect of [JSB’s] body, if he were to die. If any difficulties were to arise, they may make an urgent application for directions to the Court.
Those orders were made under the inherent jurisdiction of the Court.
[8] Ms Parsons was appointed as Counsel to Assist the Court. At a case management conference on 1 October 2009, I gave leave for the Attorney-General to intervene, on the grounds that the application raised a public policy issue on which the Attorney should be heard. By the time of the conference, the biological parents had been advised of the orders made and were represented by Ms von Keisenberg. Subsequently, HB instructed Mr Earl to act on her behalf.
[9] At the 1 October 2009 conference, I identified the issues on which submissions were sought as follows:
[a]Did I have jurisdiction to make an order appointing Ms Brown and [HB] as the Court’s agents for the specific purpose of dealing with JSB’s remains after his death?
[b]If there were no jurisdiction to make that order on the basis of the existing Court ordered guardianship, did I have jurisdiction under the inherent jurisdiction of the Court to make that order?
[c]In the event that jurisdiction exists, on either basis, what (if any) order should (as a matter of discretion) be made, having regard to the specific circumstances of this case?
[10] A prompt substantive hearing was held, on 15 October 2009. At that stage, there were two applications before the Court:
a) Ms Brown’s application for directions, and
b)An application by HB (filed after the case management conference) for a declaration that the biological parents had no legal right to uplift JSB’s body if he were to die.
[11] At the hearing, there was one area of dispute between the biological parents and the paternal grandmother. That dispute involved disposal of JSB’s remains. HB wants to keep the ashes and to have them buried with her in a family plot at Levin,
while SB and TS want the ashes to be interred in the B family plot in Picton. SB
deposes that members of his family have been buried at Picton since 1899.
[12] The Chief Executive (as the Court’s general agent) abided the decision of the
Court.
[13] Ms Bingham appeared for the Bay of Plenty District Health Board to support Ms Brown’s application. The District Health Board’s Acting Chief Executive deposed that clarification was required from the Court “as to which parties have the right to uplift [JSB’s body] from the facility following his death”. The District Health Board’s position was that it would be a breach of JSB’s dignity to deliver his body up to someone who contributed to his persistent vegetative state. In order to ensure his dignity was protected, the District Health Board considered it was essential that arrangements for the care of his body be undertaken by someone who had loved and cared for him during his period of disability.
[14] On 4 November 2009, I gave a judgment, in which I held that I did have jurisdiction to make an order of the type sought by Ms Brown and, in the circumstances of the particular case, I was prepared to direct a process by which disputes about what should happen after JSB’s death could be resolved at that time.
[15] On Ms Brown’s application, I made the following orders:
a) Lawyer for the Child (presently, Ms Brown) is appointed as this Court’s agent for the specific purpose of liaising with relevant personnel at the Bay of Plenty District Health Board or the Chief Executive about removal of JSB’s remains and their disposal on his death. In fulfilling that role, Lawyer for the Child is appointed to act as a custodian, to take control of JSB’s body and to arrange for him to lie at a funeral home or morgue, pending resolution of any disputes, between his biological parents and his paternal grandmother, as to disposal of his mortal remains.
b)Upon JSB’s death, Lawyer for the Child shall immediately consult with JSB’s biological parents and his paternal grandmother to determine:
i) The mode of disposal of his body; ie burial or cremation;
ii) The service or services that should be held;
iii) The location of any service to be held;
iv)Whether any person or persons should be excluded from attending a particular service;
v)Who should have the ability to see or touch the body pending burial or cremation;
vi) The place at which JSB’s remains should be laid to rest.
c) In the event that there were conflict on all or any of the issues set out in order (b) above, Lawyer for the Child shall apply to this Court, within 36 hours of JSB’s death, on notice to the biological parents, the paternal grandmother, the Bay of Plenty District Health Board and Counsel Assisting the Court for directions on any issue in dispute. Each of those parties shall be served at their current address for service or at any address subsequently notified in accordance with the High Court Rules. Any such application will be considered by this Court as a contest between the biological parents and the paternal grandmother, with other counsel only being heard on issues directly affecting their individual clients or, in the case of Counsel Assisting the Court, on any issues on which this Court may seek submissions from her. The application will be heard promptly and, if filed, should be referred directly to me or (in my absence) the Duty Judge at Auckland. If no dispute were to exist, at the time of JSB’s death,
Lawyer for the Child is authorised to release JSB’s body to family members to implement their agreement.
d)Lawyer for the Child (after consultation with the Chief Executive, as the Court’s general agent) shall file and serve a report each three months, on the last Friday of the months of November, February, May and August, until JSB’s death. The first such report shall be filed and served on or before Friday 27 November 2009. The report shall set out:
i)brief medical information as to the current state of JSB’s health
ii)any relevant changes of circumstances, relating to the current views held by the biological parents and the paternal grandmother (respectively) on the issues raised in order (b) above,
iii)any other factor Lawyer for Child considers relevant to any direction this Court may be asked to make on JSB’s death.
That report shall be served on the parties to whom I refer in order (c), above, at their respective addresses for service.
e) Leave to apply, on 24 hours notice to the parties to whom I refer in order (c) above, is reserved to Lawyer for the Child, the biological parents and the paternal grandmother for any of these orders to be varied or discharged.
f) An interim injunction shall issue to restrain the biological parents or the paternal grandmother from taking any steps inconsistent with orders (a) and (c) above, without the prior leave of this Court.
g) No order as to costs, save that:
i)Costs and disbursements incurred by Lawyer for the Child (in relation to attendances in connection with the application and subsequent attendances required by these orders, including any costs involved in having JSB’s body transported to and lying at a funeral home or a morgue) shall be paid out of moneys appropriated by Parliament for the purpose.
ii)Costs and disbursements incurred by Counsel Assisting the Court (in relation to attendances in connection with the application and any subsequent attendances the Court may require to be undertaken) shall be paid out of moneys appropriated by Parliament for the purpose.
HB’s separate application was dismissed.
[16] I indicated that I would give full reasons for my judgment later. These are those reasons.
Administration of the Court’s guardianship of JSB
[17] When the Court assumed guardianship over JSB on 18 June 2004, the Chief Executive, as its general agent, was empowered to regulate access to him by his parents and others. The Court consented to continuing medical investigations, treatment and management, in accordance with good medical practice; particularly by specialist medical practitioners at the Childrens’ Ward at Tauranga Hospital.
[18] Later, the Court gave conditional consent to the withdrawal of ventilatory support or to a decision, made on proper medical grounds, not to intervene actively to resuscitate JSB in the event of a life-threatening episode. Such actions could only be taken after parental consultation, unless required by a sudden medical emergency. Lawyer for the Child was directed to take reasonable steps to talk to the parents before a final decision of that type was made.
[19] The family member who has had the most contact with JSB, since his injury, is his paternal grandmother, HB. On 22 December 2004, she was approved to act as JSB’s caregiver, by the Chief Executive. Early the following year, on 19 January
2005, two of SB’s natural children were also placed with her, under s 78 of the
Children Young Persons and Their Families Act 1989 (the 1989 Act).
[20] In September 2005, the Chief Executive was notified of concerns about the treatment of the two children placed with HB under the 1989 Act. Allegations of verbal and physical assault had been made. As a result, one of SB’s other children was removed from HB’s care on 26 January 2007 and placed with alternative caregivers approved by the Chief Executive.
[21] In July 2007, complaints were made by another of SB’s children that HB was behaving abusively towards JSB. It was alleged that HB had yelled at JSB, left him unattended and crying for at least an hour and (possibly) had struck him.
[22] In October 2007, JSB was removed from HB’s care, due to concerns about her ability to care for him into the future. On 7 December 2007, JSB was placed with a new long-term caregivers, approved by the Chief Executive. He remains in their full-time care.
[23] On 27 August 2008, a trust was settled for JSB’s benefit. The named settlor was the person then holding office as Lawyer for the Child. He and a private trustee company were appointed as trustees. That trust was established to receive a lump sum compensation payment from the Accident Compensation Corporation. The moneys remain held on the terms created by the trust deed. Ms Brown is now a trustee of that trust, having been substituted as a trustee, for her predecessor as Lawyer for the Child.
[24] Since my interim orders were made on 24 September 2009, the medical practitioners responsible for JSB’s care have provided a more favourable prognosis for his life-span. Nevertheless, given the serious injuries he has suffered (in particular the severe damage caused to his brain), there remains a real possibility that he could deteriorate rapidly in the future. Therefore, there remains a need to
consider the points raised by Ms Brown when the possibility of death was more imminent.
Potential sources of jurisdiction
[25] Helpfully, all counsel focussed on the jurisdictional and discretionary issues framed by me on 1 October 2009. Counsel identified three potential sources of jurisdiction for the orders made on 24 September 2009:
a) First, by the Court making orders, as JSB’s guardian, under the Care of Children Act 2004 (the Act).
b) Second, the residual parens patriae jurisdiction of this Court.
c) Third, the ancillary jurisdiction exercised by this Court in relation to the administration of estates.
The parens patriae and administration jurisdictions are subsets of the High Court’s inherent jurisdiction.
[26] All counsel accepted that jurisdiction to resolve the current impasse, during JSB’s lifetime, could not be exercised through consideration of a competing claim by HB to administer his estate, under s 6(2) of the Administration Act 1969. While JSB will, undoubtedly, die intestate, he is not presently “deceased”. Rule 27.29(1)(b) of the High Court Rules provides that no application under s 6(2) may be made earlier than 10 working days from the date of a person’s death.
[27] Similarly, all counsel agreed that the Court does not have jurisdiction under the Protection of Personal and Property Rights Act 1988 to make a property order and a will for JSB, solely for the purpose of appointing an executor. The absence of any estate means that no property order can be made: see ss 25, 26, 31 and 35.
Is there jurisdiction under the Care of Children Act 2004?
[28] The 2004 Act came into force on 1 July 2005. Unless “otherwise expressly provided”, the 2004 Act “has effect in place of the rules of the common law and of equity as to the guardianship and custody of children”: s 13(1). Nevertheless, the High Court retains all powers, in respect of the persons of children, that it enjoyed immediately before the 1968 Act came into force, on 1 January 1970: s 13(2) of the
2004 Act.
[29] Section 156 of the 2004 Act makes it clear that an order made under the 1968
Act, placing a child under the guardianship of the Court, is to be treated as if it were an order under the comparative provisions of the 2004 Act.
[30] Section 30 of the 2004 Act reposes concurrent jurisdiction in the High Court and each Family Court to place a child under its guardianship. I discussed the nature of the jurisdiction in Re an Unborn Child [2003] 1 NZLR 115 (HC). The jurisdiction is derived from the right and duty of the Crown as parens patriae “to take care of those who are not able to take care of themselves”, a role that gives the Crown “the ultimate right of supervision over all infants”: see Pallin v Department of Social Welfare [1983] NZLR 266 (CA) at 272 and M v M [1983] NZLR 502 (CA) at 506.
[31] The origin and history of the parens patriae jurisdiction were traced by La Forest J in Eve (Mrs) v Eve [1986] 2 SCR 388 (SCC), at paras 32-35. It originated in the Crown’s jurisdiction over the mentally incompetent. When transferred to the Court of Wards and Liveries in the 1540s, the jurisdiction was exercised judicially. Discretely, the ability to place a child under the guardianship of a superior Court developed, as an aspect of that Court’s wardship jurisdiction. Although that jurisdiction had a separate origin, as a property right arising out of the feudal system of tenures, the concept of wardship was retained by the Court of Chancery, as part of its parens patriae jurisdiction. La Forest J said:
[35] When tenures and the Court of Wards were abolished, the concept of wardship should, in theory, have disappeared. It was kept alive, however, by the Court of Chancery, which justified it as an aspect of its parens patriae
jurisdiction; see, for example, Cary v Bertie (1696), 2 Vern 333, at p 342, 23
ER 814, at p 818; Morgan v Dillon (Ire) (1724), 9 Mod R 135, at p 139, 88
ER 361, at p 364. In time wardship became substantively and procedurally assimilated to the parens patriae jurisdiction, lost its connection with
property, and became purely protective in nature. Wardship thus is merely a
device by means of which Chancery exercises its parens patriae jurisdiction over children. Today the care of children constitutes the bulk of the Courts’
work involving the exercise of the parens patriae jurisdiction.”
[32] The jurisdiction was, at the time the 1968 Act came into force, described as the “wardship” jurisdiction. Before amendments were made to the 1968 Act in
1998, s 9 was headed “Wards of Court”. The effect of the 1998 Amendments was to confer, for the first time, wardship jurisdiction on both the High Court and each Family Court: see Newspaper Publishers Association of New Zealand (Inc) v Family Court [1999] 2 NZLR 344 (HC) at 348. The provisions inserted by the 1998
Amendment did not refer to “wards” or “wardship”. Nor do the relevant provisions in the 2004 Act. Nevertheless, for ease of reference, I shall refer to jurisdiction under the 2004 Act as the statutory “wardship” jurisdiction and, where appropriate, to JSB as the Court’s “ward”.
[33] In Re an Unborn Child, I held that the provisions of the 1968 Act were not intended to supersede the inherent jurisdiction of this Court. Rather, they provided a procedural mechanism through which jurisdiction could be exercised. Section 13(2) of the 2004 Act confirms that view: see para [28] above. I left open the possibility that the parens patriae jurisdiction could be exercised discretely from the statutory wardship jurisdiction. I thought it would be “difficult to speculate on any circumstance in which it would be necessary to have resort to this Court’s residual powers” but added that it “would be foolish to rule out the need for such a residual jurisdiction”: at para [70].
[34] Sections 8 and 11 of the 2004 Act have a bearing on whether jurisdiction exists under the 2004 Act to make statutory orders that have effect after the ward’s death. Those provisions state:
8 Interpretation
In this Act, unless the context otherwise requires,—
child means a person under the age of 18 years
11 Application
This Act applies to—
(a) children living at the commencement of this Act (see section 2); and
(b) children born after that time.
[35] The term “child” was defined in a similar way by s 2(1) of the 1968 Act. The only difference was that, under the 1968 Act, a “child” was a person under the age of
20 years. The counterpart of s 11, in the 1968 Act, was s 37.
[36] In Re an Unborn Child, I considered the breadth of the definition of “child”, under the 1968 Act. In that case, the Chief Social Worker for the Department of Child Youth and Family Services sought an order placing an unborn child under the guardianship of the Court.
[37] The Chief Social Worker’s application was made in what she regarded as the best interests of the unborn child. A woman (to whom I referred in the judgment by her stage name “Nikki”) was pregnant and close to delivery of her child. Nikki intended to participate in a pornographic film featuring the birth of her child. While there was some doubt about whether the actual childbirth would be shown in the film, the Chief Social Worker had been unable, at a meeting also attended by the Commissioner for Children, to obtain any undertaking to that effect. She formed the view that commercial concerns were motivating Nikki’s decision to participate in the labour and birth scenes. Therefore, a wardship order was sought to prevent filming of the birth for publication of images whether in utero, during birth or post partem.
[38] In that case, I could not avoid the need to determine whether the statutory definition of “child” incorporated one presently unborn. Because filming was intended to occur during labour, while the child was in the birth canal, it was necessary to determine whether a “child” was in existence at that time: cf Re Ulutau (1988) 4 FRNZ 512 (HC), in which Tipping J expressed doubt about the jurisdiction to place an unborn child under the guardianship of the Court but was able to deal with the issue before him by ordering that the child be made a ward immediately upon birth.
[39] Distinguishing Re F (in utero) [1988] 2 ALL ER 193 (CA), I held that this Court’s jurisdiction under the 1968 Act extended to unborn children: see Re An Unborn Child, at para [61]. I came to that view on the basis of the preamble to the United Nations Convention on the Rights of the Child (both adopted and ratified in New Zealand) and existing legislation designed to protect the interests of an unborn child to varying degrees: in particular, see ss 182 and 187A of the Crimes Act 1961 and the Contraception, Sterilization and Abortion Act 1977. I held that those factors favoured a purposive interpretation of the definition to protect the unborn child’s rights: see also para [47] below.
[40] Having held that the Court’s jurisdiction applies before birth, is similar reasoning available to hold that the jurisdiction extends to events that will occur after the “child’s” death?
[41] The only New Zealand decision of relevance is that of Judge Callaghan, in Watene v Vercoe [1996] NZFLR 193. That case pre-dates my judgment in Re an Unborn Child. The guardians disagreed about the form of an inscription to go on the headstone of a murdered child’s grave. One of the guardians applied, under s 13 of the 1968 Act, for the Court to resolve their dispute. A similar jurisdiction exists under the 2004 Act, s 44.
[42] Drawing on the specific provisions of the 1968 Act and on the discussion of guardianship and parental responsibilities in Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402 (HL), Judge Callaghan declined jurisdiction, distinguishing a dispute over an unborn child from one in relation to a child who had died. Referring to Re Baby P [an unborn child] (1995) 13 FRNZ 472 (FC) and Re F [in utero] [1988] 2 All ER 193 (CA), the Judge said, at 198-199:
During the course of his judgment in Baby P, Judge Inglis discusses a wardship case, In re F (in utero) [[1988] 2 All ER 193 (CA)], which also dealt with the definition of "child". In In re F, an urgent application was made to make the unborn child of a severely mentally disturbed mother a ward of the Court so that the mother (who had disappeared) could be found, taken into appropriate care and the child could be protected.
The Court in that case decided that the common law wardship jurisdiction could not be extended to cover an unborn child, largely on the basis that an
unborn child has no status of legal persona unless and until born alive. Judge
Inglis distinguished In re F from the case of Baby P:
...the question whether the unborn child has the status of a legal person ... is an altogether different question from whether the unborn child is a human being who is entitled to protection (Baby P, at 581).
In this case neither scenario is relevant. The son here has no legal persona, nor is he a human being "entitled to protection".
While one can foresee that there could well be a guardianship dispute over an unborn child (adopting the reasoning in R v Henderson [[1990] 3 NZLR
174 (CA)]) that is a completely different matter to looking at a situation where life has expired.
The Guardianship Act uses the phrase "a person under the age of 20 years" and the issue at the heart of the present case is the exercise of parental decision making "rights" by the parties after the death of their son.
The Guardianship Act clearly applies to children that are living. Similarly a person can only be a guardian under the Act so long as the child is alive. (my emphasis)
[43] Contrary to counsel’s submissions, I do not regard s 11 of the 2004 Act as creating any jurisdictional problem. Like s 37 of the 1968 Act, s 11 is directed to determining those who are subject to the 2004 Act when it commenced. Section 11 is declaratory of the need to treat children who are living at the commencement of the Act and those who are born after that time as subject to its provisions. I do not regard s 11 as having any effect on the breadth of the definition “child”, in s 8.
[44] However, there is much force in Judge Callaghan’s observation that the obligations and duties cast upon guardians apply only in relation to living children. The link between those duties and the “upbringing of the child” (s 15(a) of the 2004
Act) and the nature of guardianship obligations generally (s 16(1) and (2)) point to the need to regard guardianship as terminated on death. None of the guardianship obligations, duties or responsibilities articulated in the 2004 Act are apt to deal with events that occur after death.
[45] Judge Callaghan’s observations are also supported by legislation governing the ability to apply for a grant of administration on an intestacy, after death. Rule
27.35(4) of the High Court Rules speaks of “parents”, rather than “guardians”. That provision confirms that rights in respect of post-death events vest in parents, with guardianship responsibilities being terminated once the child dies.
[46] Those factors militate against the existence of a statutory wardship jurisdiction permitting orders of the type sought by Ms Brown to be made in this case. I agree with Judge Callaghan, in Watene v Vercoe, that the concept of guardianship is directed at decisions to be made (and implemented) in the best interests of a child during his or her lifetime. There is nothing in the 2004 Act to differentiate the position under that statute from what pertained under the 1968 Act, with which Judge Callaghan was dealing.
[47] I do not regard my decision in Re an Unborn Child as incompatible with that approach. There is good reason to distinguish the case of an unborn child from those of one who will have died before any order dealing with disposal of his or her remains comes into force. The reasons that led me to hold that the 1968 Act included an “unborn child” within its terms included the need to give weight to New Zealand’s international obligations under the United Nations Convention on the Rights of the Child, a Convention which includes an express reference, in its preamble, to the need for “special safeguards and care, including appropriate legal protection” for a child, “before as well as after birth”: Re an Unborn Child, at paras [61](a), [66] and [70](b). There is no similar provision dealing with a deceased child.
[48] I hold that there is no jurisdiction, under the 2004 Act, for either the Family Court or this Court to make orders as guardians of a ward, even while the child is alive, which would take effect only after death. On the death of a child, guardianship responsibilities end.
Can the inherent jurisdiction be invoked?
[49] The inherent jurisdiction of the High Court is available to deal adequately with questions that are not the subject of specific legal rules. The jurisdiction can be exercised only in circumstances that fall within its proper scope and when there is no conflict with statutory or regulatory provisions: generally, see Taylor v Attorney- General [1975] 2 NZLR 675 (CA), Donselaar v Mosen [1976] 2 NZLR 191 (CA), Champtaloup v Northern Districts Aero Club Inc [1980] 1 NZLR 673 (SC and CA), Zaoui v Attorney-General [2005] 1 NZLR 577 (SC) and Butler v Craig [2008]
NZCA 198. The boundaries of the inherent jurisdiction of this Court are discussed by Master Jacob, in The Inherent Jurisdiction of the Court (1970) Current Legal Problems 23, in particular at 48-49.
[50] Two aspects of the inherent jurisdiction have been identified as relevant to this proceeding. The first is the parens patriae jurisdiction described by La Forest J in Eve: see para [31] above. The second is an adjunct to the Court’s powers in respect of the grant of administration of deceased estates.
[51] The nature of the Court’s inherent jurisdiction in administration matters was discussed in Re Jones (deceased) [1973] 2 NZLR 402 (SC). The Court held that, in the circumstances of that case, there was no jurisdiction to grant letters of administration in favour of the particular applicant, in an intestacy. Because s 6 of the Administration Act 1969 was held to be inapplicable, the Judge considered that the order could be made under the inherent jurisdiction. Quilliam J said, at 405:
It is [in the inherent jurisdiction of the Court that] the power of the Court to make a grant of administration in the present case is to be found. The Court is to have power to do whatever may be necessary to administer the laws of New Zealand. It is apparent that the power to make a decision upon an application such as the present one is to be regarded as a necessary judicial function. The estate of the deceased must be administered. If it should be the case that the refusal of the Court to exercise jurisdiction in a case such as this resulted in one of the sons changing his mind and seeking a grant to himself then the position could no doubt be overcome. But this need not necessarily happen, and there can be no power of the Court to thrust the task of administration upon a person who declines to apply for a grant, however interested that person may be in the estate. Plainly the Court must be prepared to consider the grant to an applicant where the justice of the case demands it. Until the Legislature sees fit to prescribe by statute the considerations which are to apply to an application such as the present one, the Court will deal with it by the exercise of judicial discretion. This does not, in my view, mean that the Court must, by some analogy, regard itself as bound to look for special circumstances, but merely to consider the matter upon the basis of all the relevant facts in order to be able to arrive at a considered and sensible result. If, for instance, the applicant is clearly unsuitable for some reason then the Court would be obliged to refuse a grant.
[52] In Re an Unborn Child, I observed that it was preferable to treat the statutory wardship jurisdiction and the parens patriae jurisdiction separately, so proper weight could be given to jurisdictional limits imposed by the statute. I adhere to that view. That approach is important for two reasons. First, because inherent jurisdiction cannot be exercised in a manner that is inconsistent with statutory terms, the first
port of call must be the statute. Second, the statutory scheme remains relevant in identifying the limits of any residual jurisdiction.
[53] Where reliance is placed on the parens patriae jurisdiction, to make orders while the ward remains alive, the jurisdiction may only be exercised by the High Court. When a child is under the guardianship of a Family Court, it would be necessary to transfer the proceeding to this Court, under s 30(4) of the 2004 Act, for relief to be sought under the inherent jurisdiction.
[54] Both aspects of the inherent jurisdiction spring from s 16 of the Judicature
Act 1908:
16 General jurisdiction
The Court shall continue to have all the jurisdiction which it had on the coming into operation of this Act and all judicial jurisdiction which may be necessary to administer the laws of New Zealand.
[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 a living child, after death.
[56] Viewed as a continuum, the inherent jurisdiction covers the very situation that has arisen in this case. Provided 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.
Should the discretion to make an order be exercised?
[57] In Calmer v Sesar (1992) 2 NTLR 37 (SC) at 42, Martin J observed that the “conscience of the community would regard fights over the disposal of human remains … as unseemly”. Such an observation is self-evident. That general proposition supports the view that it is in JSB’s (present) best interests to put in place a mechanism to avoid unseemly conflict between family members after his death. His best interests require that he receive a dignified burial or cremation, particularly in light of the way in which his life was destroyed through the actions of his mother, shortly after his birth.
[58] The underlying philosophy is well stated by Percival E Jackson, The Law of Cadavers (Prentice-Hall Inc, 1936) at 39-40, in a passage cited with approval in Smith v Tamworth City Council (1997) 41 NSWLR 680 (SC) at 686-687. Mr Percival wrote:
The duty of conveyancing the corpse, decently covered, from the place of death to the place of internment … was and is a primary, a positive, and an active one … . It springs from and is created by the right of the dead to burial and the right of the survivors, the next-of-kin and strangers, constituting the community, to enforce the right of burial in the public interest. It is likewise distinct from the privilege of care, custody, and disposition of the corpse. It is distinct from the obligation to defray or repay the cost thereof … . Its enforcement rests upon the necessity of affording expeditious burial, originating at a time when embalming was not common practice, in the interests of the dead and by reason of solicitude for the health and feelings of the next of kin and of the community.
See also Gilbert v Buzzard (1820) 161 ER 1342 at 1347, in which Lord Stowell observed that carrying a body in a state of naked exposure to the grave would be a “real offence to the living, as well as an apparent indignity to the dead”.
[59] In New Zealand, the need to treat human remains with dignity and reverence is reflected in both civil and criminal law. In the context of civil law, the International Covenant on Civil and Political Rights (expressly affirmed by the Long Titles to the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993) prohibits “arbitrary or unlawful interference” with both privacy and family: art 17(1). See also, the Coroners Act 2006. As to the criminal law, an offence exists in relation to misconduct in respect of human remains: see s 150 of the Crimes Act 1961.
[60] Article 17 of the International Covenant on Civil and Political Rights is in similar terms to art 8 of the European Convention on Human Rights. Article 8 (“right to respect for ... private and family life”) was considered by the European Court of Human Rights in Dödsbo v Sweden [2006] ECHR 38. That Court held:
20. As to the legitimate aims, the Government observed that the principle of the sanctity of graves has a longstanding tradition and is founded on reverence for the deceased, common to all mankind and existing in most cultures. Thus, the strict approach taken by the law, and by the public authorities in its application, serves to prevent disorder and to protect morals in society at large. In addition, the Government submitted that this restrictive approach is also important in order to prevent conflicts arising amongst relatives on the subject. Moreover, cemeteries and burial places should not be regarded as temporary repositories for the deceased’s remains or ashes. In other words, it may be said that what is at stake is the right of the living to be assured that, after death, their remains will be treated with respect. Thus, in the present case, the interference also served to protect the right of others. (my emphasis)
Similar sentiments were expressed by Cranston J, in Borrows v McManus [2008] EWHC 1387, at paras 18 and 21.
[61] I emphasise the European Court of Human Rights’ observation that “what is at stake is the right of the living to be assured that, after death, their remains will be treated with respect”.
[62] I heard extensive argument about whether, in the context of this case, the biological parents or the paternal grandmother ought to be regarded as having a prior right to make arrangements for the disposal of JSB’s mortal remains. Ordinarily, in an intestacy, priorities are established for the right to apply for letters of administration: see r 27.35(3) and (4) of the High Court Rules. While the authorities suggest (they are not unanimous on this issue) an approach to control of the body should, prima facie, follow the same scheme, there is no clear statutory authority, in New Zealand, identifying the person entitled to custody and control of a body after death. An exception is in the case of a suspicious or sudden death in which, depending upon the stage of the investigation, either the New Zealand Police or the Coroner has an exclusive right to “custody” of the body: see ss 13, 18 and 19 of the Coroners Act 2004. Those provisions may be triggered, for example, by the death of
a child in care, as a result of orders made under the Children Young Persons and
Their Families Act 1989: see s 13(1), (f) and (g) Coroners Act 2006.
[63] Section 42(1) of the Coroners Act, in relation to the person or persons to whom a Coroner releases a body in his or her custody provides:
42 Release of bodies
(1) A coroner to whom a death has been reported under section 15(2)(a) or section 16(2)(b) must, if not prohibited from doing so by section 43 or 44, authorise the release of the body concerned as soon as he or she is satisfied that it is no longer necessary to withhold it from family members.
….
The sub-section does not direct to whom the body should be released.
[64] Although s 42(1) speaks of “family members”, that is not a term specifically defined. Some assistance is available, however, from the definition of “immediate family”, a group of people to whom the Coroner is required to give notice if, for example, he or she intends to direct a post mortem: see ss 22-27 of the Coroners Act. The term “immediate family” is defined by s 9:
9 Interpretation
In this Act, unless the context otherwise requires,—
immediate family, in relation to a dead person,—
(a) means members of the dead person's family, whanau, or other culturally recognised family group, who—
(i) were in a close relationship with the person; or
(ii) had, in accordance with customs or traditions of the community of which the person was part, responsibility for, or an interest in, the person's welfare and best interests; and
(b) to avoid doubt, includes persons whose relationship to the dead person is, or is through 1 or more relationships that are, that or those of—
(i) spouse, civil union partner, or de facto partner of the dead person:
(ii) child, parent, guardian, grandparent, brother, or sister of the dead person:
(iii) stepchild, stepparent, stepbrother, or stepsister of the dead person
The definition of “immediate family” can be contrasted with the priority afforded to those who may wish to apply for letters of administration in respect of an intestacy, under r 27.35(3) and (4) of the High Court Rules.
[65] The term “custody”, in s 19 of the Coroners Act, was inserted, in preference to the term “possession”. When considering the structure and content of a new Coroners Act, the Law Commission drew attention to a submission from Te Mana Hauora o Te Arawa in which it was proposed that the words “right to possession” be changed to “guardianship”, on the grounds that “Maori will not agree to anyone lawfully possessing their body”. Based on that submission, the Law Commission acknowledged the cultural unease to many Maori of the concept of possession of a deceased, in light of the sacredness with which they view the life and death continuum. The Commission proposed that the word “control” be used instead of “possession”: Coroners (NZLC R 62, August 2000) at paras 216-220. The Legislature has used the term “custody”. That term invokes the notion of a custodian of the body, pending release to family members.
[66] Because I have not made any orders identifying the person or persons with authority to make decisions about disposal of the body, it is strictly unnecessary to consider some of the more subtle issues that may require resolution later, if the dispute between biological parents and paternal grandmother were to continue after JSB’s death. However, in light of the comprehensive arguments advanced to me, I intend to outline some broad principles, in order to provide some guidance on the issues that may, in the future, require resolution.
[67] JSB is bound to die intestate. Therefore, this type of case will differ from one in which a valid will has been executed by the deceased prior to death. Ordinarily, the executor of a Will will have responsibility to bury or cremate the deceased: see Clarke v Takamore (2009) 27 FRNZ 676 (HC). In that case, Fogarty J considered common law principles recognising the rights and duties of an executor of a will, with regard to burial, and those of customary law and practices of indigenous
peoples. Fogarty J was faced with a dispute about the place at which a Maori man ought to be buried.
[68] In considering the first of those issues, Fogarty J rightly observed that the paucity of authorities on this topic is of “no surprise because in New Zealand and in other common law countries the funeral arrangements are sorted out within the family, who resolve such issues as burial or cremation; the place where the service is to be held, the form of the service, religious or civil, or some combination thereof”: at para [23]. For those reasons, there was “normally no need to go to the law”. Only extraordinary reasons lead to the need for a Court to resolve an impasse among those close to the deceased. This case is another illustration of the same point, this time in the context of an inevitable intestacy.
[69] The concepts of “possession” and “control” of a body are consistent with the long-held view that there is no “property” in a corpse. That proposition was explained in Williams v Williams (1882) 20 Ch D 659, in which Kay J, at 665, adopted a passage from R v Fox (1841) 2 QB 246, in which it was said that “after the death of a man, his executors have a right to the custody and possession of his body (although they have no property in it) until it is properly buried”.
[70] Mr Earl referred me to American jurisprudence dealing with rights of sepulchre; in particular, a helpful article by Professor Foster, Individualized Justice in Disputes over Dead Bodies (2008) 61:5 Vanderbilt Law Review 1351. Among the topics covered in that article is the notion of “property” in the corpse. The author refers, by way of example, to Pierce v Proprietors of Swan Point Cemetery 14 Am Rep 667 (1872) at 677, in which the Supreme Court in Equity of Rhode Island held, at 676-677:
“the burial of the dead is a subject which interests the feelings of mankind to a much greater degree than many matters of actual property. There is a duty imposed by the universal feelings of mankind to be discharged by someone toward the dead; a duty, and we may also say a right, to protect from violation; and a duty on the part of others to abstain from violation; it may, therefore, be considered as a sort of quasi-property and it would be discreditable to any system of law not to provide a remedy ...”
This case was one in which complaint was made that a person had been wrongly removed from one plot in a cemetery to another.
[71] The importance of a careful assessment of competing rights to bury or cremate a deceased and the complexity of the exercise of the judicial function can be seen in a number of cases in which customary or cultural rights are at stake, as well as legal rights. Examples are Jones v Dodd (1999) 73 SASR 328 (SC) and Buchanan v Milton [1999] 2 FLR 844 (Fam D) in which, in South Australia and England respectively, Judges were required to determine prior rights to bury based on issues of Aboriginal culture.
[72] In Jones v Dodd, Perry J (delivering the principal judgment of the Full Court of the Supreme Court of South Australia, with whom Millhouse and Nyland JJ concurred) took the view that the authorities supported the proposition that, generally, the person entitled to bury the deceased will be the person who would be entitled to a grant of administration of his or her estate. However, he considered that to be a “convenient practice” rather than a “principle of universal application which compels such an approach in all cases”: Jones v Dodd at 334. See also, Smith v Tamworth City Council at 691.
[73] Perry J took the view that the proper approach was “to have regard to the practical circumstances which will vary considerably between cases, and the need to have regard to the sensitivity of the feelings of various relatives and others who might have a claim to bury the deceased, bearing in mind also any religious, cultural, or spiritual matters which might touch upon the question”: at 336.
[74] In Buchanan v Milton, Hale J was confronted with a contest between adoptive parents of a male Aboriginal Australian who was living in England at the time of his death as an adult, and his Aboriginal biological parents who wished to return the body to Australia, for burial in accordance with Aboriginal culture.
[75] Hale J took the view that, in the context of the English equivalent of s 6(2) of the Administration Act 1969, the circumstances surrounding the deceased’s adoption in Australia, the family’s move to England, a subsequent unhappy reunion with
biological parents in Australia and the interests of the deceased’s daughter were all factors going to the question whether “special circumstances” existed. The totality of the circumstances before Hale J justified a finding of “special circumstances”. The Judge approached the question of who should be given the grant of administration by balancing the views of the birth family, the views of the adoptive family, the best interests of the deceased’s daughter and the views of the deceased as relayed through witnesses in evidence before her.
[76] I have referred to Jones v Dodd and Buchanan v Milton to demonstrate the complexities that can arise in cases where (in particular) cultural issues are at stake, whether the dispute is determined by reference to administration principles or not. While cross-cultural elements are not in issue in this case, it seems clear that the need to determine a case on that basis is not far away: cf Awa v Independent News Auckland Ltd [1995] 3 NZLR 701 (HC), [1996] 2 NZLR 184 (HC) and [1997] 3
NZLR 590 (CA)) and Clarke v Takamore itself.
[77] Although emotion arising out of cross-cultural claims will not cloud decisions about who has the right to decide how to dispose of JSB’s remains, a similar issue is likely to generate considerable heat between the competing parties. That issue might be characterised as an understandable community sentiment that those who have been complicit in causing serious injury to their children through violent behaviour ought to be regarded as having forfeited the right to make decisions about the child’s remains, on death.
[78] In Re LL [2005] NIQB 38, the Queen’s Bench Division of the High Court of Northern Ireland was concerned with a natural parent, in that position, seeking to have her child’s body returned to her rather than to a foster family in whose care he had been for some time. Commenting that an unequivocal parental right, in law, to bury a child could give rise to “surprising consequences”, Deeny J said:
[23] … An abusive parent, newly released from prison, perhaps for the offence of cruelty to his own child, could march into the ward in which the child had died and snatch the lifeless body from the grieving foster parents who have loved and cared for the child for a decade and, if the applicant succeeded, this parent could remove the body to a place of burial far away without any need to disclose the location to the Trust or the foster family who had loved the child and with whom the child had been living for many
years. He would not be a public authority subject to the Convention or judicial review. I doubt very much if Parliament ever intended such an outcome. ….
[79] If disposal of JSB’s remains is in issue after his death, care must be taken not to tar SB with the same brush as TS. His parental rights might need to be weighed distinctly from those of TS. He was not complicit in causing JSB’s injuries. Likewise, steps taken by TS to rehabilitate and the extent of any remorse for her actions will need to be brought to account.
[80] It is unnecessary to cite further authority. As I have said, the question of prior entitlement to bury or cremate and determine the way in which human remains will be disposed of must be determined after death, in light of the circumstances prevailing at that time. It would be premature to make an order now, when it is unknown how long JSB will live or whether (through some tragic event) HB or JSB’s biological parents may predecease him. Further, (and importantly) I do not wish to rule out the possibility of reconciliation between the paternal grandmother and the biological parents. Time may heal what are, currently, raw wounds.
[81] While I was prepared to make an order to create a mechanism to resolve any dispute promptly upon death, I determined, as a matter of discretion, not to make directions that would have the effect of predetermining arrangements to be followed on JSB’s death. Any conflict between family members about the way in which JSB’s remains ought to be dealt with after death must be resolved after death.
[82] My appointment of Lawyer for the Child as a custodian of JSB’s body with power to deal with relevant authorities in respect of JSB’s death, my injunction to restrain the biological parents from interfering with the duties cast upon Lawyer for the Child by my order and the need for her to consult with all relevant family members to determine whether any conflicts remain for resolution meet JSB’s present best interests. In relation to the proposed disposal of JSB’s remains, circumstances may change significantly between the present time and when he dies. The orders I made (set out at para [15] above) were designed to enable those family members to agree on disposition or to have issues resolved promptly.
[83] I decided that it was preferable to appoint Lawyer for the Child as custodian. Her role is to protect JSB’s best interests, in an objective sense. To have appointed the biological parents or the paternal grandmother would likely have given a sense of grievance to the other and removed the air of detachment required on death.
[84] In view of my decision, made on Ms Brown’s application, it followed that HB’s separate application for orders enabling her to deal with the body was dismissed. The reasons I have expressed for making orders on Lawyer for the Child’s application explain adequately the reason for dismissing HB’s application.
Conclusion
[85] For those reasons, on 4 November 2009, I made the orders set out in para
[15] above.
[86] I thank counsel for their considerable assistance at short notice. All counsel deserve high praise for the way in which they went about researching a difficult case, presenting argument on it and (not least) in demonstrating compassion for the human tragedy from which both applications emerged.
[87] I apologise to counsel for not referring in detail to their respective arguments. I intend no disrespect to them. I have preferred an approach which avoids lengthy recitation of submissions, to permit analysis of the competing claims to be expressed
in as simple and succinct a manner as possible.
P R Heath J
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