Scotching v Birch
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE PATTEN |
| Judgment Date | 18 March 2008 |
| Neutral Citation | [2008] EWHC 844 (Ch) |
| Court | Chancery Division |
| Date | 18 March 2008 |
[2008] EWHC 844 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
The Honourable Mr Justice Patten
Ms Jane Evans-Gordon (Instructed by Purcells) appeared on behalf of the Claimant
Miss Markham (Instructed by Brooke Taylor) appeared on behalf of the First Defendant
Mr Macdonald (Instructed by Anderson Partnership) appeared on behalf of the Second, Third and Fourth Defendants
Approved Judgment
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This is an extraordinarily tragic and unhappy case. The Claimant, Mr Scotching, seeks the grant of letters of administration to the Estate of his late son, Jay Birch. His mother is the First Defendant. The Second, Third and Fourth Defendants are the three children of Mrs Birch from an earlier marriage. They are all minors. Mr Scotching and Mrs Birch met in 2000. Mrs Birch was brought up in Buxton in Derbyshire, but on her marriage moved with her husband to Cornwall and then on to Gloucester. They returned to the Buxton area in about 1993. The evidence is that the fourth Defendant, Adam, was born there in 1995. Subsequently, the marriage broke down and Mrs Birch then moved with the three children to the Milton Keynes area, where she was living at the time that she met the Claimant.
Much about the history and nature of their relationship is in issue. It is said in evidence by the First Defendant, that the Claimant was violent and abusive towards her. This is denied. I have heard no oral evidence on this application and all parties accept that I am not able to form any view about those matters.
What, however, is not in issue, is that by about October 2003, they had separated and by April 2005 contact between the Claimant and Jay was terminated. Between 2003 and 2005 there was limited contact at the home of the First Defendant and the parties appear to have remained on sufficiently good terms for this to occur, but after 2005, relations between them seem to have completely broken down.
The Claimant commenced contact proceedings in respect of Jay in 2006. Mrs Birch that year moved with the children back to Buxton. The Claimant says that she changed her name and took various other steps to avoid his making contact. Eventually, a fact-finding hearing was listed in Manchester on 1 August 2007. Mrs Birch failed to attend. On 2 August, she was found unconscious by one of her children. She had killed Jay and had then tried, unsuccessfully, to commit suicide. Subsequently, she was charged with Jay's murder.
On 8 February this year she entered a plea of not guilty to the charge of murder, but did plead guilty to manslaughter on grounds of diminished responsibility. That plea has not been accepted by the Crown and she is currently on remand in prison in Peterborough awaiting trial for murder. The trial, I have been told, has been fixed for 31 March.
Understandably, in these circumstances there is no evidence before me as to the precise circumstances in which she came to kill Jay or the facts involved. I know nothing of this beyond her plea admitting the unlawful killing of her child. Jay's body is currently under the control of the coroner. He is willing to release the body for burial and would have done so by now, but for the dispute which has arisen between the two parents as to the funeral arrangements. Mr Scotching wishes his son to have his funeral service in a church in Leighton Buzzard near to where he lives and be buried in a consecrated cemetery nearby. He is willing to allow the three other children to help organise and participate in the service if they wish. Mrs Birch does not consent to this. She wants Jay's funeral and burial to take place at the King Sterndale Church in Buxton, where she says her three other children were christened in 1995 and where they still live.
Since last year they have been in the care of the local authority and are living in the home of their Godmother. Given this disagreement the Coroner is only willing to release Jay's body in accordance with an order of the court. The court has no power to direct what form anybody's funeral should take. This is a matter for the deceased's personal representatives and family to arrange. Similarly, there is no property in a body. There is a duty at common law on the personal representatives and others to arrange for its disposal and to this end the personal representatives have a right to possession of the body —see Buchanan v. Milton 53 BMLR 176 and the authorities referred to therein. The court's only function in this is to decide whether and to whom to grant letters of administration in order for the funeral arrangements to be made. A grant can be limited to organising the funeral and to meeting the necessary expenses and this is the type of grant sought in this case.
By virtue of s.46(13) of The Administration of Estates Act 1925, Jay's residuary Estate is held on trust for his father and mother in equal shares. No one else is entitled under his intestacy. The right to apply for a grant is governed by Rule 22 of The Non-Contentious Probate Rules 1987. Rule 22(1)(c) provides that:
“Where the deceased died on or after 1 January 1926, wholly intestate, the person or persons having a beneficial interest in the estate shall be entitled to a grant of administration in the following classes in order of priority, namely
(a) the surviving husband or wife;
(b) the children of the deceased and the issue of any deceased child who died before the deceased;
(c) the father and mother of the deceased.”
There is no dispute that the Claimant is entitled to apply for a grant under these provisions, but the First Defendant also asserts her right to a grant. One way in which the court could resolve the dispute about the grant and with it the dispute about the funeral arrangements, would be by exercising the powers contained in s.116 of The Supreme Court Act 1981, so as to limit the grant to either the Claimant or the First Defendant. Section 116 provides as follows:
“(1) If by reason of any special...
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Anstey v Mundle and Another
...limited grant, one of the people who would otherwise be entitled to a grant. It is right that, in analogous circumstances, Patten J in Scotching v Birch [2008] EWHC 844 (Ch) accepted that the section 116 jurisdiction is capable of being engaged, but it is not clear to me that any issue was ......
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Frozen Corpses and Feuding Parents: Re JS (Disposal of Body)
...[48].36 ibid.37 ibid at [49]. The same point has been stressed elsewhere- see for example, the comments of PattenJinScotching vBirch [2008] EWHC 844 (Ch) at [7] (‘The court has no powerto direct what for manybody’s funeral should take’). However, see In the Matter of Ian Steward-Brady (Dece......