Sad story of a young life lost and a clash of cultures

family law

You never know what you’re going to find in the family law reports. The other day an old case from 1999 popped up on Bailii. It was a High Court case, heard by a certain Mrs Justice Hale (whatever happened to her?), and its subject was quite different from anything you might usually come across. In fact, the subject is barely a ‘family’ matter at all, but I think it may still be of interest to readers of this blog.

The case concerned a young man, Dayne Kristian Childs, who was killed in a road traffic accident on the A11 on 20 July 1998, at the age of just 26. But that was not the end of the tragedy. After his death a dispute arose over the arrangements for the disposal of his remains, with the result that by the time the case went before Mrs Justice Hale some nine months after his death his funeral had still not taken place.

As indicated by the title to this post, the dispute involved a clash of very different cultures, for details of which we must look at Dayne’s background.

Dayne was born in Brisbane, Australia, in February 1972. His mother is of Australian Aboriginal origin. She was just 18 when Dayne was born, and unmarried. She was due to go to university, and had no means of supporting Dayne. Just four days after the birth she gave her written consent to Dayne being adopted. Under the law then in force in Queensland she then had just 30 days in which she could change her mind and revoke her consent. She did not do so and, after spending two years with a foster family, Dayne was adopted by a Mr and Mrs Childs in 1974.

Mr and Mrs Childs moved from Australia to England in 1979. By all accounts Dayne thrived with them, and completely accepted them as his family, whilst being aware of his Aboriginal origins.

Dayne’s mother claimed to have no knowledge of signing the consent form, saying that she had been heavily sedated. The suggestion was made (although not, I think, by her) that Dayne was one of the “stolen generation” of Aboriginal children, removed from their families by the Australian authorities, as part of a policy to assimilate indigenous children into white Australian society.

The next important moment in the story took place in 1991, when the law in Queensland was changed, to give adult adopted persons and birth parents the right to identifying information about each other. Dayne’s mother immediately took advantage of this, and contact was made between her and the Childs family. Without going into details, the eventual upshot of this was that in 1996 Dayne went to Australia to meet his natural family. Mrs Justice Hale found that the meeting had a profoundly disturbing effect upon him, particularly the (unproven) suggestion that he may have been “stolen” from his natural family, and that his adoptive parents may have been complicit in the ‘theft’.

Upon returning from Australia Dayne resumed his relationship with his girlfriend, and she had their child, Hollie, in July 1997. He apparently proposed marriage to his girlfriend, shortly before his death.

Dayne died intestate, which meant that the duty to arrange for the proper disposal of his body fell upon the administrators of his estate. The only person entitled to succeed to his estate was his daughter Hollie, and she would have been the administrator if she had been of full age. As she was not, any person with parental responsibility for her could apply to be an administrator on her behalf, so her mother applied. However, as Hollie was a minor two administrators were required, and Hollie’s mother therefore nominated Mrs Childs (Mr Childs had by then died). Accordingly, Hollie’s mother and Mrs Childs made arrangements for Dayne’s funeral, and cremation.

However, before the funeral took place Dayne’s natural mother found out about his death. She objected to the funeral arrangements, as cremation is not acceptable within Aboriginal culture. Further, she wanted Dayne to be buried at his place of birth, as was traditional in Aboriginal culture. She therefore applied to the High Court to be appointed as an administrator, the High Court having the power to appoint a different administrator if there were ‘special circumstances’.

The application went before Mrs Justice Hale. Giving one of her usual extremely sensitive judgments, she found that this was not a case in which there were ‘special circumstances’ making it necessary or expedient to displace the persons ordinarily entitled to the grant of letters of administration. She came to this conclusion after considering the interests of all concerned including, in particular, Hollie, of whom she said:

“Hollie needs the knowledge of her father and of his concern for her. A focal point close to home to experience that knowledge and concern will be of benefit to her in later years.”

She also took into account the wishes of Dayne himself, who had given no indication that he identified himself as an Aboriginal person, rather than as a member of the family and culture in which he had been brought up.

The mother’s application was therefore dismissed. However, it should be said that there was thankfully a measure of accommodation between the parties by the end of the case. In particular, Dayne’s mother and Mrs Childs had agreed that he should be buried rather than cremated, and that Dayne’s mother could visit him before the funeral.

The full report of the case can be found here.

Photo by liz west via Flickr under a Creative Commons licence.

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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