England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BIRMINGHAM DISTRICT REGISTRY

		14/3/2008

1. 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.
2. 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.
3. 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.
4. 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 . . . ".

5. 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.
6. 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".
7. 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).
8. 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.
9. 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.
10. 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 other, but some other combination of place and method of disposal, the evidence I have seen is not such as to dictate any other such choice. On the facts of this case, I propose to decide between the wishes of the Claimant on the one hand and those of the Defendant on the other, without any such variation.
11. The facts of the case are these. The deceased was brought up in Worcester and thereafter worked there for the same company as his mother, until 1997 or 1998 or thereabouts when she retired from employment. He had by that stage been married and divorced twice and, in effect, went back to and relied on his mother for support on the breakdown of each marriage.
12. In about the year 2000 he married for a third time. There was plainly some falling out with his mother; she says because of some disagreement with his wife, Marion. At all events, whatever the reason, the deceased and Marion moved from Worcester in January 2000, but not very far at first. Later in 2000, they moved to Kington to live where the deceased acquired a newsagent's business. Subsequently, in about 2004, they moved to Spain, selling the business to the deceased's brother, Mr Nigel Hartshorne. Soon afterwards, this third marriage failed also and the deceased came home to England. He did not, however, return to Worcester but went back to live in Kington with and then near his brother.
13. He formed a relationship with Miss Kathryn Housley to whom he became engaged to be married shortly before his death. They bought a home together in Leominster which is some seven miles from the village of Kington. The Defendant has given evidence that she does not believe that there was an engagement but her Counsel has entirely properly conceded that this is not a matter on which the Defendant can make any informed comment. The Claimant, the deceased's brother and Miss Housley have all testified to the engagement.
14. So, for some eight years before his death, the deceased had moved away from Worcester, making his home, his work and personal life with his wife Marion and then his fiancée Miss Housley and his brother and friends in the Kington area. The principal factual dispute, and the only factual dispute in my judgment of any serious relevance in this action, was as to the deceased's relationship, or lack of it, with the Defendant from 2000 onwards. It is common ground that Mr Nigel Hartshorne had no relationship at all with his mother whom he blames for the break-up of his parents' marriage.
15. The Defendant says that the deceased, however, dropped in to see her occasionally throughout the period until his death and that they remained a loving mother and son. The Claimant and his witnesses, including Miss Housley, say that the deceased did not visit his mother and that he could not have done so without their knowledge. They say that the Defendant's account of the deceased's visits is a fabrication and that his only connection with Worcester was that it was where his father continued to live.
16. I can only say that if the deceased did visit his mother, he might well have kept that fact a secret, because of the views of his brother and that it is always possible to visit people secretly if one wants to do so. Whether he did, however, is a different matter. The Defendant was cross examined on this part of her evidence. I am not prepared to find that her evidence as to those visits was untrue. Indeed, I do not need to make any finding at all on this aspect of the matter for the following reasons.
17. On her own account, the visits were infrequent, perhaps twice a year and usually very short. The Defendant did not know or seek to discover the deceased's address or telephone number in Kington. When the Defendant moved house in 2000, she did not tell the deceased her new address because she did not want him to know it and she says that he only found it out through her friend Mrs Gibbons whom he continued to see. When asked by the court why she did not want him to know it, the Defendant indicated, without any detailed elaboration, that there was a history between herself and her son which would justify withholding that address.
18. On her own account, she did not know that the deceased and his third wife Marion had split up, nor did she know of Kathryn Housley's existence. She says that matters relating to his personal life were never discussed and when asked what they did talk about at his visits, she replied that the conversation was confined to her garden and her pets, and such matters.
19. I turn first to the question of what the deceased may have been taken to have wanted in respect of funeral arrangements. There was some evidence from a friend of the Defendant's, Mrs Gibbons, who was not available for cross examination but whose witness statement I did read, said that the deceased expressed a revulsion to burial. On the other hand, there was evidence that the deceased expressed revulsion to both the idea of cremation and of burial, referring to "fire" and "worms". In both cases, however, the conversations arose in relation to the deaths of other people. I have little doubt, taking the evidence as a whole, that the deceased had no reason to and did not contemplate his own death or what arrangements he would want. I therefore do not find that evidence helpful in relation to what I have to decide.
20. The Defendant testified that when she moved house, and wished to move the ashes of her late husband, that is to say, Mr Gardner, the deceased's step-father, with her, she acquired a burial plot, which she intended to house not only his ashes but hers and the deceased's as well.
21. The documentary evidence shows that the acquisition was made in the year 2000. The Defendant said that the deceased was aware she had acquired the plot and did not demur from her intention that the three of them should be buried there. However, it seems to me obvious that at that stage, the deceased contemplated that in the natural course of things, his mother would predecease him and there was no reason for the deceased to have expressed a preference, still less, if such was the case, one which would upset his mother at a difficult time. More importantly, it was in 2000, after the interment of his step-father, that there was a falling out between mother and son and that the deceased moved away from Worcester permanently to live. Again, therefore, I do not place any great importance on the Defendant's purchase of this burial plot in the context of what I have to deal with.
22. I do, however, consider the deceased's life in Kington to be an important matter. That is where his work, his home (although he moved seven miles away to Leominster this was only shortly before his death and he continued to work in Kington), his brother (to whom it was accepted he had become very close) his fiancée and all of his friends were based. Although his father lives in Worcester, his father's view is that for these reasons, it is appropriate that the deceased should rest in Kington.
23. Turning to the issues of practicality for the survivors, the only important factor which militates in favour of Worcester is the position of the Defendant. She is in her 70s and does not drive and the evidence was that the journey to Kington would take up to two and a half hours by public transport. Whilst there would be difficulties for other family and friends (and, in particular, Miss Housley who also does not drive and whose injuries caused by the accident are such that the journey to Worcester would at present at any rate, be something of an ordeal), it has been fairly pointed out that the Claimant himself lives in Worcester and Mr Nigel Hartshorne can and does drive and can visit his brother's grave without difficulty, possibly taking Miss Housley with him.
24. I do not underestimate the difficulty faced by the Defendant visiting her son's grave. However, it seems to me that although this is a weighty factor, the fact that the deceased made his life in Kington for the last eight years of his life and that his fiancée as well as his father and brother wish him to be buried there, accordingly, outweigh the Defendant's personal wishes and difficulties. As I have said, even on her own evidence, her contact with her son and interest in his personal life and doing was very small in his last years compared with that of Miss Housley and other members of the deceased's family. While I do not doubt the Defendant's affection for the deceased and grief at his death, in my judgment virtually all the evidence points strongly in favour of the Claimant's case. I therefore decide the issue in favour of the Claimant.

Sonia Proudman QC