Derick Hartshorne v Gillian Helen Monica Gardner

JurisdictionEngland & Wales
JudgeSonia Proudman QC
Judgment Date14 March 2008
Neutral Citation[2008] EWHC 3675 (Ch)
CourtChancery Division
Docket NumberClaim No. 8BM30068
Date14 March 2008
Derick Hartshorne
Gillian Helen Monica Gardner

[2008] EWHC 3675 (Ch)

Miss Sonia Proudman QC

Sitting as a Deputy High Court Judge

Claim No. 8BM30068




Mrs Nicola Preston for the Claimant, instructed by Hallmarks, Worcester

Miss Emma Kelly for the Defendant, instructed by Thursfields, Worcester


Duncan Hartshorne, to whom I shall refer as "the deceased", died intestate on 20 th October 2007 at the age of 44 in a road traffic accident, in which his fiancée, Miss Kathryn Housley, was also injured. The Claimant is the deceased's father and the Defendant his mother. They were divorced more than 35 years ago. The Claimant has brought this action for the court to decide whether the deceased's body should be released to him as he asks, or to the Defendant, because they cannot agree as to the form or place of the funeral or interment. The Claimant, although he himself lives in Worcester, wants a burial in Kington: the Defendant a cremation in Worcester, where she continues to live. Worcester and Kington are some forty miles apart. The deceased's body is in the mortuary at Hereford Hospital under the authority of the coroner, who will not release the body to either party without the agreement of the other or an order of the court. The parties agree that this Court can use its inherent jurisdiction to decide the dispute and I have to do so.


This is an exceptionally distressing and painful case for both parents and the deceased's fiancée and other family and friends. Plainly a decision between the earnest wishes of two grieving parents requires the wisdom of Solomon, which I do not profess to have. Any decision will be hard to take for the losing party but I must make it absolutely clear at the outset that the decision I am making involves no criticism of either parent and no endorsement of any criticism that has been made on one side or the other in the course of the evidence.


I have had very helpful skeletons and submissions from both Counsel in this case. There are several witness statements but I have been at pains to limit oral evidence and cross examination to matters which directly affect the issue I have to decide. As the legal advisers to both parties have agreed, the court should be slow to make findings as to the details of the deceased's family relationships.


In the Australian case of Calma v. Sesar (1992) 2 NTLR 37 the judge, Martin J, declined to hear evidence about the deceased's childhood relationships with members of his family. Again, in Holtham v. Arnold [1986] 2 BMLR 123 Hoffmann J said at page 125:

"…there seems to be no doubt that Mrs Holtham on the one side and the family on the other both feel very strongly that it is their right and duty to conduct the funeral. I think it is virtually impossible for a court to express any moral judgment as between them. The relationship between a man in the position of Mr Arnold and Mrs Holtham on the one hand and his family on the other are in the nature of things extremely difficult for an outsider to penetrate…Indeed, I think it is a matter on which it would almost be presumptuous to try to explore. In those circumstances the only course really open to the court is to decide the matter according to law…".


I respectfully agree although in that case the applicable law was that the person entitled to the grant of administration had the duty and the right to make the funeral arrangements and the judge's comments must be seen in the context of whether he was to override the administrator's wishes. In the present case, the Claimant and the Defendant, as the surviving parents, have equal priority to a grant of administration so it is not possible to determine this dispute in the same way.


I have been referred to a number of cases concerning disputes about funeral or interment arrangements. None of this case law provides a conclusive answer to the question I have to decide. For example, in University Hospital Lewisham NHS Trust v. Hamuth [2006] EWHC 1609 (Ch) arrangements were left to the NHS Trust being "the person currently in lawful possession of the body".


In the present case the coroner has, naturally enough, not indicated any preferred means of disposing of the deceased's body. However, some helpful guidelines may be distilled from some of the cases. Thus the deceased's wishes are one of the relevant factors to be taken into consideration (see, for example, Grandison v. Nembhard (1989) 4 BMLR 140). Again, the place with which the deceased had the closest connection is relevant as to the ultimate resting place (see Fessi v. Whitmore [1999] 1 FLR 767).


In Calma v. Sesar, to which I have already referred, the dispute was resolved in a practical way. There was no good reason why the body should be flown thousands of miles away for a funeral and Martin J therefore decided that the funeral should be in Darwin where the body lay.


The most important consideration is that the body be disposed of with all proper respect and decency and, if possible, without further delay. Subject to that overriding consideration, it seems to me that there are two types of factor that are relevant in the present case. First, those that do or might be expected to reflect the wishes of the deceased himself. Secondly, those that reflect the reasonable wishes and requirements of family and friends who are left.


I would make one final preliminary observation. While, as the Defendant's Counsel has submitted, my jurisdiction doubtless enables me not just to decide between Kington and burial on the one hand and Worcester and cremation on the...

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10 cases
  • Gloucestershire County Council v Re K
    • United Kingdom
    • Family Division
    • 24 March 2017
    ...among the various contending parties. The judge adopted the reasoning of Ms Proudman QC, as she then was, in Hartshorne v Gardner [2008] EWHC 3675 (Ch). "24. …In that case, Ms Sonia Proudman QC, sitting as a Deputy High Court Judge, was invited to exercise the court's inherent jurisdiction ......
  • Oldham Metropolitan Borough Council and Another v Robin Makin and Others
    • United Kingdom
    • Chancery Division
    • 13 October 2017
    ...Buchanan v. Miltonsupra, University Hospital Lewisham NHS Trust v. Hamuth [2006] EWHC 1609 (Ch) (Hart J), and Hartshorne v. Gardner [2008] EWHC 3675 (Ch) (Ms Sonia Proudman QC)). But in none of those cases was there a specific dispute as to the propriety of the method of disposal proposed. ......
  • Anstey v Mundle and Another
    • United Kingdom
    • Chancery Division
    • 25 February 2016
    ...ensuring that a body is disposed of and the order of the court will be binding on the parties to the claim. 24 Hartshorne v Gardner [2008] EWHC 3675 (Ch) is the third case in time. In that case, Ms Sonia Proudman QC, sitting as a Deputy High Court Judge, was invited to exercise the court's......
  • A.B. v C.D. and Another
    • Ireland
    • High Court
    • 27 April 2023
    ...parents. 23 . In Anstey v. Mundle, already cited, the English High Court approved the earlier decision of Hartshorne v. Gardner [2008] EWHC 3675 (Ch), where the Deputy High Court Judge identified the relevant factors to the exercise of the inherent jurisdiction of the court as being: the d......
  • Request a trial to view additional results
1 books & journal articles
  • Table of Cases
    • United Kingdom
    • Wildy Simmonds & Hill A Practitioner's Guide to Probate Disputes - 2nd edition Contents
    • 29 August 2022
    ...nom Dabbs (Lawrence Stanley) (Deceased), Re [2001] WTLR 527, [2000] All ER (D) 934, ChD 71 Hartshorne v Gardner [2008] EWHC B3 (Ch), [2008] EWHC 3675 (Ch), [2008] 2 FLR 1681, [2008] Fam Law 985 141, 142–143, 152 Hawes v Burgess [2013] EWCA Civ 74, [2013] WTLR 453, [2013] All ER (D) 220 (Feb......

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