England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice
		24th March 2017

MR. JUSTICE HAYDEN:

1. 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.
2. 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.

3. 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.
4. 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.
5. 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)."

6. 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)."

7. 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.'

8. 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.
9. 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.'"

10. 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."

11. Mr Sharp contends that the factors identified at points two and four above are plainly relevant here. I agree. I would also stress that I consider proper respect and decency is not presently being shown to K's body. I would also emphasise that there has been wholly unacceptable delay. I note that the Births and Deaths Regulations 1987 Reg 51(2) provides that if the registrar learns (after a delay of 14 days from the date on which he should have received notification of the date, place and means of disposal of the body) that the body has not been disposed of he must, unless he is informed that the body is being held for the purposes of the Human Tissue Act 2004, report the matter to the officer responsible for matters of environmental health for the district in which the body is lying. This, to my mind, indicates that as a matter of public policy, a body should be disposed of with due dispatch.
12. In the case of Burrows v Her Majesty's Coroner for Preston [2008] 2 FLR 1225, Mr. Justice Cranston set out the framework of the law with great clarity. It requires to be set out in full here:

"[12] It is said that at common law there is no proprietary interest in a deceased person's body. That can be traced back as far as Blackstone's Commentaries and was stated very emphatically in Williams v Williams (1882) 20 Ch D 659, 46 JP 726, 51 LJ Ch 385. In Smith v Tamworth City Council [1997] NSWSC 197 Young J, after a thorough review of the Commonwealth decisions and United States jurisprudence, concluded that a more sophisticated analysis of this proposition is needed. However, it suffices for the purposes of the present action to adhere to the Williams v Williams view of the common law.

[13] At common law if there is no property in the body of a deceased person various people have rights and duties in relation to it. First, the deceased's personal representatives, the executors of the will or the administrators of the estate when the deceased dies intestate, have the right to determine the mode and place of disposal of the body, even where other members of the family object. The personal representative's claims to the body oust other Claimants, although in some cases statute might entitle, as in this case, the Coroner, or possibly in other cases a hospital or a local authority, to make claims on the deceased's body. Where personal representatives have not been appointed, the person with the best right to the grant of administration takes precedence; where two or more persons rank equally, then the dispute will be decided on a practical basis: Jervis on Coroners (ed) Paul Matthews, 12th ed, 2002, para 7-03, n 40; 7-05, n 41. The person with the best right to the grant of administration, and hence to the deceased's body, is set out in r 22 of the Non-Contentious Probate Rules 1987 SI 2024, r 22.1:

"ORDER OF PRIORITY FOR GRANT IN CASE OF INTESTACY

(1) 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;

(d) brothers and sisters of the whole blood and the issue of any deceased brother or sister of the whole blood who died before the deceased;

(e) brothers and sisters of the half blood and the issue of any deceased brother or sister of the half-blood who died before the deceased;

(f) grandparents;

(g) uncles and aunts of the whole blood and the issue of any deceased uncle or aunt of the whole blood who died before the deceased;

(h) uncles and aunts of the half blood and the issue of any deceased uncle or aunt of the half-blood who died before the deceased."

[14] Alongside r 22.1, however, is the power of a court conferred by the Supreme Court Act 1981, s 116, which in certain circumstances enables the court to appoint as administrator some person other than the person who would have the right under r 22. Section 116 reads:

"(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."

Section 116 has been considered on several occasions by the courts. In Holtham v Arnold (1986) 2 BMLR 123, Hoffmann J considered whether s 116 enabled the court to appoint as administrator a person solely for the purposes of conducting a burial. In the course of his judgment Lord Hoffmann said that the words "necessary or expedient" emphasise the fact that the section was concerned with the proper and efficient administration of the estate and not really adapted to this sort of question.

[15] The leading case is now Buchanan v Milton [1999] 2 FLR 844. That was a case where the Applicant was the natural mother of the deceased. The Respondents were persons who were entitled to the grant of letters of administration of the estate. They were his adoptive mother and the mother of his daughter. The dispute arose because the Applicant had given her consent to adoption when the deceased was only four days old. The adoption order was made. In fact, the deceased was an Australian Aborigine. It was said at one point, although it was rejected by Hale J, that he was part of the so called "stolen generation" who had been improperly removed from their Aboriginal parents in the 1970s to be assimilated into white Australian society. The Applicant requested that the deceased's body be transported to Australia for burial in accordance to Aboriginal custom. Initially the Respondents had agreed, but after an Aboriginal ceremony in this county which upset them they changed their minds.

[16] Hale J set out six special circumstances in terms of the requirements of s 116 of the Supreme Court Act. One was the nature of the adoption, the fact that the Applicant had given up the deceased at a very young age; secondly, the deceased's Aboriginal heritage and the importance attached to correct burial procedures; thirdly, the initial agreement reneged upon after death; fourthly, the deceased's daughter's interest in knowing that, in due course, things were done in accordance with her father's Aboriginal heritage; fifthly, the interest of other members of the Australian family; and finally, the deceased's wishes. Hale J held that they were all special circumstances and that she had to consider them in combination. She then went on to consider whether it was "necessary or expedient" by reason of those special circumstances to exercise the discretion under s 116 of the Supreme Court Act to prefer the natural mother over the Respondents, entitled as the latter were to the grant of letters of administration. She had no difficulty in concluding that it was "not necessary" to exercise the discretion because arrangements for the funeral had been made before the Applicant arrived on the scene. Then after a lengthy discussion of whether it was "expedient" to do so, Hale J decided that it was not.

[17] In the light of Buchanan v Milton, the domestic law is clear. If there are no personal representatives, then it must be asked: who has the best claim to be appointed as administrator of a deceased person's estate. Rule 22 lays down the order of priority. If there is a dispute, then s 116 may come into play if no compromise is possible. That requires an answer to two questions. First, are there special circumstances which may displace the order of priority set out in r 22; secondly, is it necessary or expedient by reason of those special circumstances to displace the normal order of priority. As demonstrated by the result in Buchanan, the situations where the order of priority will be varied will be rare indeed."

13. Thus it follows that, if this Court was to find there to be the 'special circumstances' identified in Burrows and, also, to consider it necessary or expedient to make an order under s.116 then it would have to identify the alternative grantee of the (limited) letters of administration. It is clear that the person who could be declared as entitled to the grant must be someone who has "standing". In that case, the aunt had the means to make arrangements and the capacity (which the mother, a drug addict, did not) but the judge held the aunt had no standing (or no "independent claim" to carry out the funeral arrangements). A person with the necessary standing would appear to be someone who comes within the hierarchy of priority for a grant under rule 22 of the 1987 Rules, or (see below) someone in possession of the body.
14. Mr Sharp draws together a number of authorities which cast light on the correct approach. In University Hospital Lewisham NHS Trust v Hamuth [2006] EWHC 1609 the claimant hospital being 'the person currently in lawful possession of the body' was held (on its application) to have the authority to decide the appropriate means for the disposal of the testator's body in circumstances where there was a bona fide dispute between the defendants in respect of the validity of the testator's will and the entitlement of the first defendant to act as executor. There Hart J noted that "The authorities also establish that at common law it is the duty of a householder under whose roof a person has died to make arrangements for the dignified and decent burial of the deceased, at least in circumstances where the deceased is a poor person in relation to whom no other arrangements can be made – see R v Stewart 12 Ad & E 773 at 778." The simple fact was that the hospital required to dispose of the body due to demands on space in the hospital morgue. It was contended that the hospital was in like position to a householder and, subject to the claims of others who have the better right to make arrangements for the disposal of the body, it had both the duty and the right to make such arrangements. Hart J analysed the position in these terms:

"[16] There is, so far as appears, no direct authority on the question. Plainly in a case where there is no dispute as to the executor's entitlement to act, the right of the executor is likely to be accorded a high priority, and it may indeed be, although the point has not been decided, that the executor in circumstances where no dispute at all exists will always be entitled to the final say. That appears to have been the basis upon which Vinelott J decided the case of Re Grandison, reported in The Times for 10 July 1989, although it is also right to say that Vinelott J in that judgment left open the question of whether the court had the power to override or supplant the executor's decision at the instance of a near relative and observed that "he would be surprised to find that the court had no power in any circumstances".

[17] In the present case, the Claimant being in lawful possession of the body and there being no way of resolving the dispute as to the entitlement of the First Defendant to act as executor within an acceptable time period, it seems to me that the decision as to the appropriate arrangements for the disposal of the body must be left to the Claimant as the person currently in lawful possession of the body, and I would accordingly make the declaration which the Claimant asks me to make."

15. By way of completeness the relevant statutory obligation must also be considered. Section 46(1) of the Public Health (Control of Disease) Act 1984 provides:

"It shall be the duty of a local authority to cause to be buried or cremated the body of any person who has died or been found dead in their area, in any case where it appears to the authority that no suitable arrangements for the disposal of the body have been or are being made otherwise than by the authority."

Whilst this does not directly illuminate any of the issues that fall to be considered here it does indicate the general promotion of respect and decency for a body and the obligation for it to be disposed of with proper dispatch that is reflected in the case law that I have set out above. It does not appear that in the Lewisham case (supra) Hart J had the case of Fessi v Whitmore 1999 1FLR 767 drawn to his attention. It was however cited before Peter Jackson J in Re JS both of which relied on the inherent jurisdiction as a route to direct the burial of a child.

16. It is necessary to consider the evolution of the inherent jurisdiction and wardship (which is a facet of the inherent jurisdiction). Though it is difficult to be definitive as to the nature of the inherent jurisdiction or to prescribe its parameters it can perhaps most conveniently be defined as the route by which the Court may make orders in relation to specific individuals and their affairs that are not governed by individual statute. In London Borough of Redbridge v SNA [2015] EWHC 2140 (Fam) (21 July 2015) ([2015] 1 FAM 335, [2015] 3 WLR 1617, I made the following observations:

"…The concept of the 'inherent jurisdiction' is by its nature illusive to definition. Certainly it is 'amorphous' (see paragraph 14 above) and, to the extent that the High Court has repeatedly been able to utilise it to make provision for children and vulnerable adults not otherwise protected by statute, can, I suppose be described as 'pervasive'. But it is not 'ubiquitous' in the sense that it's reach is all- pervasive or unlimited. Precisely because it's powers are not based either in statute or in the common law it requires to be used sparingly and in a way that is faithful to its evolution. It is for this reason that any application by a Local Authority to invoke the inherent jurisdiction may not be made as of right but must surmount the hurdle of an application for leave pursuant to s100 (4) and meet the criteria there."

Later I expressed myself in unambiguous terms as to the scope of the jurisdiction:

"The High Court's inherent powers are limited both by the constitutional role of the court and by its institutional capacity. The principle of separation of powers confers the remit of economic and social policy on the legislature and on the executive, not on the Judiciary. It follows that the inherent jurisdiction cannot be regarded as a lawless void…"

17. The earliest origins of the wardship jurisdiction, which are feudal, bestowed on the Crown the right to exercise powers and duties over orphaned children who had inherited real property. These children fell within the responsibility of the King as parens patriae. In 1540 the Court of Wards was set up to enforce the right of the Crown in the execution of its duties in connection with wardship. That Court endured for over 100 years but was abolished in 1660. The Wardship jurisdiction survived in the Court of Chancery and expanded its reach beyond property rights to welfare and protection of vulnerable children. It is interesting to consider the comments of Lord Cottenham LC in Re Spence (1847) 2PH 247 at para 251:

"I have no doubt about the jurisdiction. The cases in which the court interferes on behalf of infants are not confined to those in which there is property . . . This court interferes for the protection of infants qua infants by virtue of the prerogative which belongs to the Crown as parens patriae and the exercise of which is delegated to the Great Seal."

18. The Guardianship of Infants Act 1886 codified the framework for protecting children's welfare but, once again, the wardship jurisdiction continued to exist beyond statute and as a facet of the inherent jurisdiction. In R v Gyngall [1893] 2 QB 232,248, Kay LJ commented that wardship:

". . . is essentially a parental jurisdiction, and that description of it involves that the main consideration to be acted upon in its exercise is the benefit or welfare of the child. Again, the term 'welfare' in this connection must be read in its largest possible sense, that is to say, as meaning that every circumstance must be taken into consideration and the court must do what under the circumstances a wise parent acting for the true interests of the child would or ought to do. It is impossible to give a closer definition of the duty of the court in the exercise of this jurisdiction."

19. Whilst emphasising my observations in LB Redbridge v SNA (supra), the concept of 'a wise parent acting for the true interests of the [particular] child' is integral to both the parens patriae and the inherent jurisdiction. It is, to my mind, axiomatic that a 'wise parent' would attend to the burial of a child. Thus having regard to the historical base and underlying philosophy of the inherent jurisdiction and the case law to which Mr Sharp has drawn my attention, I am satisfied that, pursuant to the inherent jurisdictional powers of the High court, I can authorise the Local Authority to make arrangements for the disposal of K's body by way of burial or cremation, making the necessary funeral arrangements and if the body be cremated the disposal of the deceased remains. There are pressing practical reasons why this requires to be attended to expeditiously which are too distressing to incorporate within this judgment and need not be.
20. In an email on 21^st March (now two days ago), Gloucester City Council made the following observations: Firstly, that they are agreeable to arranging the funeral pending the court's declaration and will bear the costs of that funeral. Secondly, as the council will need to contact the family with regard to the funeral arrangements, it would be helpful for the court to grant the disclosure of that personal information to them via the Data Protection Act 1998.
21. I have heard this morning from Mr. Hall, the father's solicitor in the criminal proceedings. He came armed with a typed note for this application prepared by counsel, Mr. Jemi Akin-Olugbade. It purported to respond to Mr. Sharp's documentation and, in particular, it concluded:

"In the context of the recent receipt of medical records by the defence, there is no 'special circumstance' arising from the delay in [the father] not consenting to or arranging the burial of his son. The grant is not necessary for reasons of public health as alternative arrangements can be made. Moreover, the fair trial of [the father] may be jeopardised."

Mr. Akin-Olugbade did not attend.

22. Though I confess it was not initially obvious, Mr Hall, solicitor, expressly and unequivocally disavowed those written submissions. Though the criminal trial is approaching Mr Hall tells me that the father has not yet been invited to conference with his barrister. There have however been some seven conferences between solicitor and counsel alone. If Mr Hall will forgive me for saying so his understanding of the medical evidence in the case struck me as less than complete. Certainly, he was not able to support his central submission that the defence team 'may', his words, 'want to have the spine of the baby for examination though it may be that this is not necessary'
23. It is now twenty-two days since Mr. Hall last saw his client, notwithstanding that further and significant information from these proceedings (largely due to the pro-activity of the Local Authority) has been disclosed to the defence.
24. Doing the best I can to structure the father's application, it amounts to an application for a further month's deferral of the burial of this child in order to consider whether they might (my emphasis) require examination of the spine. In fact, Dr. Leadbetter, the Pathologist with responsibility for the post mortem, posited this issue as a hypothesis for the exploration of whether there were in the cervical spine further micro-fractures in addition to the rib fractures, retinal haemorrhages and hypoxic ischemic brain damage that were inflicted upon this child. Having ventilated the theory, as Mr. Sharp reminded me, he went on to say that, in fact, given that those micro-fractures to the cervical spine could have occurred in seizure at the end of K's life, then there would be no utility in any further examination in any event.
25. I have come to the very clear conclusion that no coherent argument has been advanced today on the parents' behalf that should stand in the way of the burial of their child and, for the reasons set out extensively above I grant the orders sought by the Local Authority.

Postscript

26. I am particularly grateful to Mr Sharp for his research and I was very pleased to learn that the funeral went ahead with both parents present.
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