Court jurisdiction, procedure, and remedies
Unauthorised removal of the body
17.32The final issues we discuss in this chapter are:
- what legal or policy reforms, if any, are required to address the issue of unauthorised removal of the body; and
- the nature of any potential remedies where the body has been removed and has been buried unilaterally despite the wishes of other interested parties.
17.33One party to a dispute may attempt to interrupt the legal process by removing the body and attempting to carry out their own wishes without the consent of others. In general, we think the risk of this arising is small, although if it does occur, the parties involved may be required to act quickly.
17.34An option that confers jurisdiction on the Family Court to make burial orders might assist in this situation. Family Court duty judges are able to deal with applications without notice on the same day they are made. While the High Court is also able to issue urgent orders without notice, it might be seen by the parties involved as a less accessible forum than the Family Court, which tends to be less formal and which is more obviously designed to deal with family matters. We also note that High Court registries, where the urgent orders will need to be filed, are spread less widely throughout the country than those of the Family Court.
17.35Increasing public awareness could also help address this issue. Community groups and professionals could play a greater role in helping avoid or manage the risk of a body being taken. Our preliminary discussions with funeral directors suggest they are sensitive to the potential for dispute. They may be in a good position to advise parties on the legal position, particularly if it is clarified in statute, and to either help them resolve the dispute or refer them to the court. Community law centres often publish resources for families organising a funeral; these could include a statement of the law relating to disposal of the body where a dispute arises. Lawyers dealing with the will may also be in a position to assist and should be aware of the potential for disputes about disposal to arise.
17.36 Māori wardens or local kaumātua might be able to help with disputes involving tikanga Māori. Nin Tomas notes that aspects of the decision-making process under tikanga can be baffling to outsiders and are not always spelt out explicitly. This may have been part of the problem that led to the dispute in Takamore v Clarke. Kristin Smith makes the point that increased communication in the bi-cultural realm is critical.
17.37These awareness-raising measures might help mitigate the risk that a body could be taken without consent, thus requiring the intervention of the law. It might also mean that those who foresee the potential for a burial dispute arising upon their death will be more alert to the need to discuss it in advance with family members in order to avoid or minimise or address the basis for dispute.
17.38The proposals we suggest above in relation to Family Court burial orders would help avoid the risk of proper legal process being circumvented by removal of the body. However, it is possible that the body could be taken and disposed of before the parties have the opportunity to seek a burial directions order or go through mediation, or before one of the parties exercises their legal right in respect of the body (if the statutory regime eventually recognises such a right: see chapter 16).
Orders for disinterment
17.39If the body is buried, the question is whether any person should be entitled to a licence to disinter the body and who should decide. In the normal course of events, applications for disinterment licences are considered by the Ministry of Health, but only in circumstances where there is no family conflict. If there is, Ministry policy is not to make a decision on the application.
17.40In Takamore v Clarke, several members of the Supreme Court suggested that in such a scenario, the High Court should determine whether disinterment may proceed, because it is able to consider the public interest and the interests of those affected by the proposed disinterment. We note that a court order may be regarded as a procedural hurdle; however, we agree with that view and think that a court order should be required in such circumstances, as the court is the appropriate body to weigh up the range of issues involved. We propose though that the jurisdiction for granting such orders should be conferred on the Family Court, to complement the role proposed for it in relation to burial orders.
17.41We have considered whether the Act or its replacement might include guidance for a Court that is being asked to make a disinterment order in these circumstances. Guidance could include, for instance, the need to consider the potential detrimental effect of disinterment on all interested parties, and the need to consider the potential detrimental effect on certain parties of leaving the body in its existing location. It may be that a high threshold is required to make such an order if there is a general feeling that bodies, once buried, should not be disinterred. We would welcome people’s views on that.
Remedies in case of cremation
17.42The situation is more difficult if the body has been removed without consent and cremated, and ashes are all that remain. We have not come across any reported New Zealand legal case in which this occurred. In practice, it is likely to be diverted by existing regulatory safeguards, including:
- that no cremation may be carried out unless an application has been made under the Cremation Regulations (form A, Schedule 1);
- that the application must usually be signed by an executor or near relative of the deceased and they must certify whether any other near relative has objected to it;
- the requirement for a medical referee to certify the death of the deceased and to issue a final “permission to cremate” form before cremation goes ahead;
- that any cremation other than in a crematorium must be approved by the Medical Officer of Health; and
- the offence provisions in the Burial and Cremation Act relating to unauthorised cremation or giving a false certificate to procure cremation.
17.43We also discussed options in chapter 9 to strengthen the regulatory regime applying to crematoria that could reduce the risk of someone being able to controvert any new statutory regime by cremating the body without consent or authority.
17.44On the slim chance that an unauthorised cremation does occur, s 150 of the Crimes Act 1961, which contains an offence of “improperly or indecently interfering with human remains”, might apply. We suspect though that in most cases prosecutorial discretion would go against bringing criminal proceedings in burial disputes, unless something truly egregious occurrs. At the heart of these disputes is the desire to do what is thought to be best for the deceased and/or their family, and in such circumstances, criminal proceedings may not be appropriate.
17.45Any criminal proceedings would be independent of any civil remedy or orders that could be sought by those who did not consent to the cremation. The family could conceivably bring an action in tort for intentional infliction of emotional distress against the party who instigated the unauthorised cremation. It is unlikely that a court would recognise a tortious claim in conversion, as that would rely on recognising a property right in the body.
17.46If the body were taken from a funeral home and cremated without authority, in certain circumstances it might be possible to bring a tortious action in negligence for failing to exercise due care towards the body. United States courts have recognised actions brought in negligence by survivors of the deceased for a funeral director’s failure to take reasonable care in carrying out their duties. Claims of outrageous conduct or intentional infliction of emotional distress have also been brought against funeral directors for conduct such as releasing a deceased’s remains to his former wife, despite knowing that she was not authorised to receive the remains, or holding a body to secure payment of charges.
17.47A provision requiring funeral directors or funeral service providers not to provide services unless they have a written authorisation from the person who has the right of decision could possibly be included in the statute.
17.48We think the likelihood of a body being cremated in these circumstances is low. It may be that existing safeguards combined with other measures discussed in this Issues Paper might be considered sufficient.
Q18 Irrespective of who makes the decision or what factors they take into account, there will be times when a serious dispute arises and access to a legal forum is needed. Do you support the option of giving the Family Court the responsibility for dealing with burial and cremation disputes?
Q19 Do you support the option of giving the Māori Land Court concurrent jurisdiction in cases involving Māori customary law where all parties agree the dispute be heard in that forum?
17.49In addition to these high-level questions, we would be interested in receiving submissions on the following specific questions, from those who have a view:
(a) Do you think more statutory guidance is needed about how burial disputes should be resolved by the courts? Should legislation set out a list of factors to which a Court must have regard when determining a dispute?
(b) If so what do you think these should be? For example:
- a requirement to have particular regard to the feelings of any person, such as the spouse or partner of the deceased?
- a requirement to have regard to the cultural or spiritual practices of the deceased? Should that also extend to having regard to the cultural and spiritual practices of their family?
- a requirement to have regard to the wishes of the deceased, based on the evidence available to the Court?
- a requirement to take into account matters of practicality and convenience?
- an overarching requirement to have regard to the potential effect of making any order on the tikanga that is practised by the whānau or hapū of the deceased?
(c) Do you have any views or comments about any issues relating to court jurisdiction, procedure and remedies?