Gloucestershire County Council v Re K
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Hayden |
| Judgment Date | 24 March 2017 |
| Neutral Citation | [2017] EWHC 1083 (Fam) |
| Docket Number | No. BS16C01188 |
| Court | Family Division |
| Date | 24 March 2017 |
[2017] EWHC 1083 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Mr. Justice Hayden
No. BS16C01188
Mr. C. Sharp QC (instructed by Legal Services) appeared on behalf of the Applicant.
Mr. S. Fuller (instructed by Brand Mellon) appeared on behalf of the First Respondent.
Mr. G. Hall (Solicitor) appeared on behalf of the Second Respondent.
(As approved by the Judge)
Earlier this month I heard care proceedings in relation to H, a female child, who is now just over three years of age. H had a half-sibling (K) who collapsed on 30 th July 2016 and, despite the fervent efforts of the medical profession and paramedics to treat him, sadly died. During the course of this hearing I have been investigating the circumstances of K's death.
The ambit of the investigation was identified in a schedule of findings, prepared by the Local Authority, which they contend established the basis for an Interim Care Order. They can be conveniently set out here:
(1) On 30 th July, paramedics arrived at K's home to find him bleeding from the mouth and nose. He was naked and his body was wet.
(2) Examination found both current and historical injuries to K.
(3) The Local Authority contended that the mother and father have given inconsistent explanations about the injuries.
(4) It was contended that H, the surviving half-sibling, was likely to have been exposed to the violent incidents leading to K's catastrophic injuries and subsequent death.
(5) The Local Authority contended that H was likely to have been exposed to the parents' volatile relationship in the course of which, the Local Authority contend, by a single punch on one occasion, the father shattered the mother's jaw in three places.
I do not propose to say anything more about these issues. I have handed down judgment to the parties which will be released into the public domain following the conclusion of the parent's Crown Court trial.
During the course of case management, it came to my attention that K's body had remained unburied, notwithstanding the fact that it had been released by the Coroner for burial in October 2016. I encouraged both parents to attend to this quickly. For reasons which I am unable fully to understand, neither parent has made any effort to arrange the burial. In the circumstances, I indicated to Mr Sharp QC that I wanted the Gloucestershire County Council to assume responsibility. I further indicated that I considered that such an order fell within the reach of the inherent jurisdictional powers of this court.
It was common ground during the course of submissions that the starting point in establishing a jurisdictional basis for orders relating to the burial of a child is to be found in Buchanan v Milton [1999] 2 FLR 844 at 845/846 per Hale J, as she then was:
"There is no right of ownership in a dead body. However, there is a duty at common law to arrange for its proper disposal. This duty falls primarily upon the personal representatives of the deceased (see Williams v Williams (1881) 20 ChD 659; Rees v Hughes [1946] KB 517). An executor appointed by will is entitled to obtain possession of the body for that purpose (see Sharp v Lush (1879) 10 ChD 468, 472; Dobson v North Tyneside Health Authority and Another [1997] 1 FLR 598, 602, obiter) even before the grant of probate. Where there is no executor, that same duty falls upon the administrators of the estate, but they may not be able to obtain an injunction for delivery of the body before the grant of letters of administration (see Dobson)."
In Re JS (disposal of body) [2016] EWHC 2859 (Fam) Peter Jackson J observed:
"47. The law in relation to the disposition of a dead body emanates from the decision of Kay J in Williams v Williams [1882] LR 20 ChD 659, which establishes that a dead body is not property and therefore cannot be disposed of by will. The administrator or executor of the estate has the right to possession of (but no property in) the body and the duty to arrange for its proper disposal. The concept of 'proper disposal' is not defined, but it is to be noted that customs change over time. It was not until the end of the 19th century that cremation was recognised as lawful in the United Kingdom, and it was in due course regulated by the Cremation Act 1902. Nowadays cremation is chosen in about 3 out of 4 cases in this country.
48. Thus, in English law, there is no right to dictate the treatment of one's body after death. This is so regardless of testamentary capacity or religion. The wishes of the deceased are relevant, perhaps highly so, but are not determinative and cannot bind third parties. For discussion of the impact of the European Convention on Human Rights on the common law in this respect, see Burrows v HM Coroner for Preston [2008] EWHC 1387 (QB) and Ibuna v Arroyo [2012] EWHC 428 (Ch)."
On the facts of this case, the Non-Contentious Probate Rules 1987, in particular rule 22(1)(c) entitle both parents to a Grant of Administration. Disputes between parties entitled to such a grant can be resolved pursuant to the powers derived from s.116 of the Senior Courts Act 1981. This requires to be set out:
'(1) If by reason of any special circumstances it appears to the High Court to be necessary or expedient to appoint as administrator some person other than the person who, but for this section, would in accordance with probate rules have been entitled to the grant, the court may in its discretion appoint as administrator such person as it thinks expedient.
(2) Any grant of administration under this section may be limited in any way the court thinks fit.'
In his extensive review of the relevant national and international jurisprudence in Re JS (supra) Peter Jackson J concluded that where, pursuant to s116, there are two persons entitled to a Grant of Administration, he could, as Mr Sharp succinctly put it, substitute one for both. Alternatively, he considered that the inherent jurisdiction provided an alternative and equally valid route.
Whilst there is no 'ownership' of a dead body, the obligation to arrange for its proper disposal falls on the personal representatives of the deceased. In Buchanan(supra) Hale J (in a case where there was a dispute between the deceased's adoptive English family and his Australian Aboriginal birth family as to where and how he should be buried) observed:
"There is very little modern authority on the use of this power and none at all on its use in this particularly unhappy context. In Re Taylor, decd [1950] 2 All ER 446, 448, Willmer J (as he then was) was attracted by the view that the term 'special circumstances' relates only to special circumstances in connection with the estate itself or its administration: he therefore declined to interfere for the ulterior purpose of protecting a 21-year-old sole beneficiary from the consequences of her youth and alleged immaturity. But in Re Clore (Deceased) (No 1) [1982] Fam 113, 117, Ewbank J declined to impose any such limitation:
'I would say that the words "special circumstances" are not necessarily limited to circumstances in connection with the estate itself or its administration, but could extend to any other circumstances which the court thinks are relevant, which lead the court to think that it is necessary, or expedient, to pass over the executors.'"
Mr Sharp frames the issue in this way:
"Thus, the issue would appear to be whether the Court finds there to be 'special circumstances' and if so whether it is either 'necessary' or 'expedient' to displace the persons normally entitled to the grant of letters of administration of the estate of the deceased. If not, then the Court cannot intervene under s.116 and in any event, it would seem clear from Buchanan that the Court cannot dictate the mode of funerary rites, and perhaps not the time of a burial either."
In Anstey v Mundle [2016] EWHC 1073 (Ch) Mr Jonathon Klein sitting as Deputy Judge of the Chancery Division concluded that the Court could not determine or direct where or how the deceased would be buried, but could declare who had the power and duty to bury the deceased, 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 to direct to whom the deceased's body should be released for the purposes of its burial. The judge accepted, as Hart J had apparently done before her, that the court has such an inherent jurisdiction. In that case, the claimant and the defendant were equally entitled to a grant of representation. It is perhaps notable that the judge did not exercise any section 116 jurisdiction. In that case, the judge identified factors which were relevant to the exercise of the court's jurisdiction, although she did not seek to limit the relevant factors to those she listed.
25. The factors she identified were: one, the deceased's wishes; two, the reasonable requirements and wishes of the family who are left to grieve; three, the location with which the deceased was most closely connected; and, four, to quote the judgment, "the most important consideration is that the body be disposed of with all proper respect and decency and if possible without further delay". I have concluded that in this case those are also the relevant factors which I should consider."
Mr Sharp contends that the factors identified at points two and four above are plainly relevant...
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