Contents

Chapter 17
Court jurisdiction, procedure, and remedies

Unauthorised removal of the body

17.32The final issues we discuss in this chapter are:

Unauthorised removal

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.798 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.799
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.800 This may have been part of the problem that led to the dispute in Takamore v Clarke.801 Kristin Smith makes the point that increased communication in the bi-cultural realm is critical.802

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.

RemediesTop

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).803

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.804
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.805 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.806 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.807 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.808 In practice, it is likely to be diverted by existing regulatory safeguards, including:

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.811 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.812
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.813 Claims of outrageous conduct814 or intentional infliction of emotional distress815 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,816 or holding a body to secure payment of charges.817
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.818

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.

Consultation Questions

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?

Additional questions

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:
(c) Do you have any views or comments about any issues relating to court jurisdiction, procedure and remedies?
798See, for example, A Guide to Death, Funerals and Small Estates (Whitireia Community Law Centre, Porirua, 2002).
799In Re JSB (A Child) [2010] 2 NZLR 236 (HC ), which concerned a potential dispute over the imminent death of a child, the lawyer for the child played a crucial role in managing the situation to avoid a dispute arising: See Mark Henaghan “Family Law After Death: Control of the Dead Body of a Child Killed by the Actions of a Parent” (2010) NZFLJ 263. Note also Mike Watson “Coroner urges ‘body snatching’ mediation” (11 June 2012) Stuff <www.stuff.co.nz>.
800Nin Tomas “Who Decides Where a Deceased Person Will Be Buried – Takamore Revisited” (2008-2009) 11–12 Yearbook of New Zealand Jurisprudence 81 at 98–99.
801At 92.
802Kristin Smith “Finding a place to rest: perspectives on kiri mate, kawe mate and hahunga in the context of the ‘bodysnatching’ debate” (Te Kāhui Kura Māori, 2010) <www.nzetc.org>.
803For instance in Mr Takamore’s case, his partner (and executor) Denise Clarke succeeded in obtaining an injunction to prevent burial going ahead and for Police to take custody of the body, but it was apparently not enforced because the Police arrived as burial was already taking place and did not want to risk a confrontation with family members. See Nin Tomas “Ownership of Tūpāpaku” (2008) NZLJ 233 at 233.
804We discuss the process for disinterment licences and potential reform considerations in ch 18.
805Takamore v Clarke (SC), above n 764, at [89].
806See also the list of potential interests outlined in ch 18 at [18.72].
807See the discussion in Peter R Kehoe  Cemetery Abandonment and Disinterment of Human Remains” (1970-1971) 35 Alb L Rev 320.
808See however Mike Watson “Coroner urges ‘body snatching’ mediation” (11 June 2012) Stuff <www.stuff.co.nz>.
809Cremation Regulations 1973, reg 4.
810Burial and Cremation Act 1964, s 56.
811We note that South Australia has recently introduced criminal sanctions for proceeding with a cremation despite knowing there is a dispute. The Burial and Cremation Act 2013 (SA) provides in s 9(3) a maximum penalty of $10,000 for a person who causes bodily remains to be disposed of by cremation if the person “knows or is aware that a personal representative or a parent or child of the deceased objects to this method of disposal”. In addition, a cremation permit is required before cremation may proceed. Section 10(7)(a) provides that a cremation permit similarly may not be issued if the Registrar “knows or is aware that a personal representative or a parent or child of the deceased objects to this method of disposal”. There is an exception to these provisions if the deceased directed by will that his or her remains be cremated. Finally, s 10(8) provides that if the Registrar “becomes aware of a dispute as to who may be entitled at law to possession of the body for the purposes of its disposal, the Registrar may refrain from issuing a cremation permit in respect of the body until the dispute is resolved.”
812See the discussion in R N Nwabueze “Interference With Dead Bodies and Body Parts: a Separate Cause of Action in Tort?” 15 Tort L Rev 63.
813Dead Bodies 22A Am Jur 2d § 113.
814Fright, Shock, and Mental Disturbance 38 Am Jur 2d §§ 4–7.
815Holland v Edgerton 355 SE 2d 514 (NC App 1987); Sherer v Rubin Memorial Chapel Ltd 452 So 2d 574 (Fla App 1984).
816Rekosh v Parks 735 NE 2d 765 (Ill Dist Ct App 2000).
817Levite Undertakers Co v Griggs 495 So 2d 63 (Ala 1986).
818See for example s 8(1) of the British Columbia statute, above n 774, and subd 6 of the Minnesota statute, above n 779. That would depend on the preferred statutory regime as discussed in ch 16.