References: [2010] 2 NZLR 236, [2009] NZHC 2054
Links: Nzlii
Coram: Heath J
Ratio: (New Zealand High Court) The child was alive but severely brain damaged, having been injured by his mother. There was a dispute between his grandparents, who were caring for him, and his birth parents as to the funeral arrangements if he were to die.
Held: Although on the facts before him an order would be premature, a jurisdiction did exist before a child’s death to decide appropriate funeral arrangements after death. However, the court had no jurisdiction to make guardianship orders which would take effect only on death, as on death guardianship responsibilities end: ‘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 the living child, after death.
Viewed as a continuum, the inherent jurisdiction covers the very situation that has arisen in this case. Provided that 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.’
This case is cited by:
- Applied – RE JS (Disposal of Body) FD (Bailii, [2016] EWHC 2859 (Fam), Judiciary)
JS, a child of 14, anticpating her death from cancer expressed the desire that her body should receive cryonic preservation in the hope that one day a treatment might be available to allow her to be revived, and proceedings were issued. Her parents . . - Cited – Takamore v Clarke and others (Nzlii, SC 131/2011, [2012] NZSC 116, [2013] 2 NZLR 733)
Supreme Court of New Zealand – The deceased was Tuhoe, but had spent the last twenty years of his life in Christchurch with his partner, whom he named his executor in his will. After his death his Tuhoe whanau moved his body to the Bay of Plenty and . .
(This list may be incomplete)
Jurisdiction: New Zealand
Last Update: 19-Nov-16
Ref: 571416