England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		The Royal Courts of Justice Strand London WC2R
		15th May 2008

MR JUSTICE CRANSTON:

1. Who has the right to make the funeral arrangements: the natural parents of a young man on the one hand, or a person who has brought him up for a considerable period of his life on the other? The common law provides a bright line rule, although the issue which has arisen in this case is whether that bright line has been blurred through the lens of statute and the European Convention of Human Rights. One group, which needs clarity, is coroners. So the present case has ramifications beyond the resolution of the particular dispute which has arisen.

Background

2. Liam McManus ('Liam') was found hanging in his cell at Lancaster Farm Young Offenders Institution in November of last year. He was pronounced dead when the staff and the paramedics failed to resuscitate him. He was only 15 years old. The claimant, Kevin Burrows ('Mr Burrows') is his paternal uncle and has brought him up over the last eight years. The interested party, Joan McManus ('Mrs McManus') is Liam's natural mother. Liam's father was Graham Burrows. Graham Burrows and Mrs McManus had two children. Natalie was born in 1982 and Liam 10 years later. Liam also had a step-brother, Dylan. Graham Burrows was the father.
3. Both Graham Burrows and Mrs McManus were addicted to heroin when Liam was born. Graham Burrows died a few years after Liam's birth. Mrs McManus has been a heroin addict now for a quarter of a century. Because of his parent's addiction both Liam and Natalie lived initially with their maternal grandmother. The family in Liverpool helped care for the children. At one point Liam had gone to live with an uncle but the uncle reached a stage where he could not cope and Liam returned to his grandmother. By now, Liverpool Social Services had become involved. Liam was placed with Thomas Jago when he was five years old in temporary foster care. It seems that during Liam's foster care with Thomas Jago, there was provision for contact between Liam and his mother, Mrs McManus, and this was to be supervised by a social worker. Liam's mother did not always keep appointments. Liam's grandmother died in January 1999 and after that Liam's contact with his mother and her family ceased.
4. By coincidence, Thomas Jago knew Mr Burrows, Liam's uncle, and the claimant in these proceedings. When Mr Burrows realised that Liam was his nephew, he offered himself as an alternative carer for Liam. Mr Burrows, who gave evidence, described how he first saw the small boy with Thomas Jago and on hearing of the relationship thought he had a responsibility. He and his wife had their own children, Jason, who died in 2002, Lisa, Kevin Junior and Laura. A full residence order was made at Liverpool Family Proceedings Court in favour of the Burrows in September 2000. Mr Burrows described in evidence the process that all the family had to go through in the run up to the court granting the residence order. It appears from the face of the order that it provided for no contact with Liam's mother. Liam became part of the Burrows family. Mr and Mrs Burrows became his mother and father, and he described them as such. I was shown a series of cards and letters where he described them as mum and dad. There was an especially close relationship between Liam and the Burrows daughter, Laura. They were about the same age, and perhaps it is not surprising that there was a special bond between them.
5. Once Liam went to senior school, he started to get into trouble. Mr Burrows said he got into contact with the wrong crowd. He started to consume alcohol to excess and Mr Burrows described how, in that event, he became an angry little man. Relations were strained on occasions with the Burrows. From time to time, Liam rejected Mr Burrows as his father. He started to stand on his own rights in relation to discipline Mr Burrows might have tried to apply. At one point, Liam was sent on temporary respite with a neighbour, but that did not last long and he returned to the Burrows.
6. There is no doubt in my mind that the Burrows were, as Baroness Hale of Richmond describes it in Re G (Children) [2006] 1 WLR 2305 at 2316 F-G, the psychological parents of Liam. As she analyses it, these are parents who are neither genetic nor gestational, but who have become in effect parents of a child and thus have an important contribution to make to its welfare. As I say, despite the trouble that Liam got into the Burrows were still his mum and dad. Mr Burrows told me in evidence that he did not claim to be Liam's father, but that he had a sense of responsibility towards him.
7. Last year, not surprisingly given that he was growing up, Liam wanted to make contact with his natural mother and his natural mother's family. He saw his natural mother, Mrs McManus, on a number of occasions in the middle of 2007. Mr Burrows took Liam to Liverpool on three occasions, and on the first two occasions Mrs McManus met him. There was a bond between them. Mrs McManus, in her evidence, described how thrilled she was at that bond. She described how the two started to make plans. Although she was living with Natalie, the intention was that at some point they might get a flat together. She acknowledged that she would have to stay clear of drugs for a period to demonstrate that she would be able to do to this. She started to make plans, she told the Court. Although she accepted that Liam had a close relationship with the Burrows, nonetheless, he was there with them because she was not able to care for him at one point. The relationship with him was very close.
8. She was to meet him at his hearing before a court on the 23^rd of August of last year. The plan was that if he got off, he was to have a meal with her. Natalie, his sister, had intended to be at the court but could not get there because she was looking after her children that day. Mrs McManus was expected. Mrs Burrows gave evidence and described how Liam was very anxious awaiting the arrival of his mother at court and was bitterly disappointed when she did not appear. Mr Burrows gave evidence that despite the problems and despite the fact that there was a bond between Liam and his mother, which he acknowledged and recognised may develop because he was getting old enough to make his own decisions, nonetheless Liam was still part of the Burrows family.
9. Liam had already been self-harming. The tragedy of his death does not need to be stated. But the tragedy was compounded because of what happened subsequently. There was an inquest into the death by the coroner. After that was concluded, Mr Burrows began to make funeral arrangements. However, when Mrs McManus heard she made a claim for Liam's body. The coroner, Dr Adeley in a statement to the court, described how at some point he became aware that a dispute had arisen between Liam's natural mother and the Burrows. He had been informed by his Coroner's Officer, Christopher Fawcett, of the various representations made by Mrs McManus. He understood that the relevant law was that the mother's wishes took priority. He had Christopher Fawcett attempt to mediate. Christopher Fawcett, in a statement to the court, described how he had tried to compromise between the parties. At one point, Mrs McManus appeared to agree to a compromise arrangement but then, on reflection, had contacted him and said that she wanted the body to be buried in Liverpool, along with other members of the family. Mr Fawcett describes how she would not back down whatever other arrangements were suggested to her. Liam had given clear indications that he wanted to be cremated. This arose partly, it seems, at the time of the death of Mr Burrow's own son. There was talk by Liam of his fear of worms. Apparently, as well, the issue had arisen when Liam started to self-harm. In at least one conversation with Mr Burrows, Liam was told by Mr Burrows that if he self harmed to any greater extent he would be dead. He had said to Mr Burrows on that occasion that if he ever died then he wanted to be cremated.
10. In her evidence, Mrs McManus acknowledged that Liam wanted to be cremated, and in fact she told the Court that the fear of worms may well have gone back much earlier to Liam's early childhood. Yesterday, on the very eve of the hearing, Mrs McManus accepted cremation for Liam. Although, she told me that she had been content with this months ago, the plain fact is that she was telling the coroner's office, as I have described, that she wanted Liam buried. Mr Burrow's solicitors wrote to her on a number of occasions to ask about this, but there was no reply. She was insisting on burial although she told the court that she knew that this was against Liam's express wishes. Perhaps, understandably, given her Irish Catholic background, she believed in burial. Nonetheless, Liam had expressed a very clear wish.
11. The claimant in this action, Mr Burrows, now wishes to have Liam's body released to him for the purposes of making the funeral arrangements. He wishes for Liam to be cremated in St. Helen's where Liam spent the majority of his childhood. He has agreed that the ashes can then be handed over to Mrs McManus to be dealt with in accordance with her wishes. Once a compromise was impossible Mr Burrows initiated proceedings by way of judicial review. In January of this year permission to apply for judicial review was granted by Collins J. However, his Lordship considered that the issues would be better resolved in a claim before the Queen's Bench, particularly in view of the fact that oral evidence might be necessary; hence the matter was heard before me. There were statements filed by Mr Burrows, by Mrs McManus, by Mrs McManus's sister, Frances Jones, and by Mrs McManus's daughter, Natalie McManus. Evidence was heard from Mr and Mrs Burrows, Mrs McManus, Frances Jones and although Natalie McManus was present in court, she was not required to give evidence.

The Law

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) LR 20 ChD 659. 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, 12^th 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 Rule 22 of the Non Contentious Probate Rules 1987 SI 2024, Rule 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 Rule 22.1, however, is the power of a court conferred by the Supreme Court Act 1981, section 116, which in certain circumstances enables the court to appoint as administrator some person other than the person who would have the right under Rule 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 section 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 section 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 section 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 section 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 Rule 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.

Human Rights Act

18. Not considered by the domestic authorities so far is the impact of the European Convention of Human Rights. Conceivably, Article 9, in particular, the right to religion, may enter. But the main aspect of the Convention, which has application here, is Article 8.1: 'Everyone has a right to respect for his private and family life'. Article 8.2 continues that there should be 'no interference by a public authority with the exercise of this right except such as in accordance with law is necessary in a democratic society…for the prevention of disorder… the protection of… morals, or for the protection of the rights and freedoms of others'. There has been a limited jurisprudence in the European Court of Human Rights and the former European Commision of Human Rights. The oldest case goes back to 1981, X v The Federal Republic of Germany, application number 8741/79, decided on the 10^th of March 1981, DR 24, 137. That was a case where the applicant had expressed a wish to have his ashes scattered in his own garden. The Hamburg administrative authorities refused. The Commission held that Article 8.1 was engaged since it was a matter that was so closely related to private life that it clearly fell within its sphere of operation. However, it held that the interference by the public authorities in Germany was justified under Article 8.2.
19. More recently, in Dödsbo v Sweden, ECHR 2006 No 5, all parties accepted that Article 8 was engaged by the refusal of the Swedish authorities under the Funeral Act to permit a wife to disinter the urn with her husband's ashes so that it could be buried in the family burial plot in Stockholm. However, as in the earlier decision of the Commission the Court held that the interference could be justified under Article 8.2.

'25. Accordingly, it must be determined whether that interference was justified under Article 8 § 2 of the Convention, or more specifically whether the domestic authorities and courts were entitled to consider that the refusal to move the urn was 'necessary in a democratic society' for the prevention of disorder, for the protection of morals, and/or for the protection of the rights of others. This assessment entails balancing the individual's interest in having a burial transfer against society's role in ensuring the sanctity of graves. In the Court's view, this is such an important and sensitive issue that the States should be afforded a wide margin of appreciation.

26. In the present case, on the one hand, the removal of the urn appears, in practical terms, to be quite easy and no public health interests seem to be involved. On the other hand, there are no indications that the applicant's husband was not buried in accordance with his wishes, on the contrary. In principle, it must be assumed that account was taken of any such wish when the burial took place. Moreover, at the relevant time, although having no connection to Stockholm, the applicant's husband, the applicant, or both together, could have chosen that he be buried with his in-laws at the family burial plot in Stockholm, established in 1945. Instead, in 1963 when the applicant's husband died, the family burial plot in Fagersta was established and he was buried there, in the town where he had lived for 25 years, since his arrival to Sweden, and the town where he had worked and raised his family.

27. Finally, nothing prevented the applicant from having her final resting place in the same burial ground as that of her husband, albeit in Fagersta, the town where she continued to live until 1980, 17 years after her husband's death.

28. The Court finds that the Swedish authorities took all relevant circumstances into consideration and balanced them carefully; the reasons given by them for refusing the transfer of the urn were relevant and sufficient; and the national authorities acted within the wide margin of appreciation afforded to them in such matters.'

20. One thing is clear, that in as much as our domestic law says that the views of a deceased person can be ignored it is no longer good law. That rule of common law can be traced back to Williams v Williams, where it was said that directions given by a deceased as to the disposal of his body were not enforceable as a matter of law. It is quite clear from the jurisprudence of the European Courts of Human Rights that the views of a deceased person as to funeral arrangements and the disposal of his or her body must be taken into account. However, this aspect of Strasbourg jurisprudence is easily accommodated within domestic law: in this type of case a person's wishes can be regarded as a special circumstance in terms of Section 116 of the Act. Otherwise, the jurisprudence of the European Court of Human Rights does not cast doubt on the domestic law. Rule 22 can still apply. Special circumstances may displace the order of priority set out there although a high test has to be satisfied, whether it is necessary or expedient to do so.
21. In some cases, if Article 8.1, the right to family life is engaged, it may be that apart from the deceased's wishes there are other claims to the exercise of that right. There may be, for example, be as there was in this case, the family life that Liam enjoyed with the Burrows family on the one hand and his family life with his mother, Mrs McManus on the other hand. Boyle v The United Kingdom (1994) EHRR 179 was a case that arose in a different context involving an uncle and nephew. The Commission in that case held that that relationship could fall within the scope of family life. Therefore, there is no doubt that those in Mr Burrow's position can invoke Article 8.1. Berrehab v The Netherlands (1988) 11 EHRR 322 arose in an immigration context. There the father had seen his daughter a number of times each week before he was deported from the Netherlands, although he divorced the mother and did not cohabit with her again from before the birth. The Court said that 'a child born of such a union is ipso jure part of the relationship; hence from the moment of the child's birth and by the fact of it, there exists between him and his parents, a bond amounting to 'family life', even if the parents are not then living together. Subsequent events of course, may break that tie...'. In my judgment, Liam's family life with his mother had not been broken by events. Where, as here, there is a conflict in terms of the engagement of family life under Article 8.1, the Court is required to focus intensely on the comparative importance of the different rights being claimed, and to balance those competing rights so as to minimise the interference with each to the least possible extent. This becomes relevant to the order to be made in this case, which seeks to accommodate both Mr Burrows and Mrs McManus.

Arguments of the natural mother and the coroner

22. In the course of the hearing, it became clear that there were powerful arguments in favour of the natural mother. First is the very clear statement in the leading work, Children Law and Practice edited by David Hersham Q.C. and Sir Andrew McFarlane, where it is said: 'It would seem therefore, that the right to arrange the disposal of the remains of a child vests exclusively in the parents': A[47]. R v Gwynedd County Council ex parte B [1992] 3 All ER 317 is cited as authority for that proposition. That was a case where a child had been placed in care pursuant to the Child Care Act of 1980. The child had died and the issue became whether the foster parents or natural parents had a right to bury the child. The Court of Appeal decided the matter purely in terms of an interpretation of the 1980 Act. Section 25 of that Act provides that a local authority may cause to be buried or cremated the body of a deceased child, who immediately before his death was in the care of the authority. Counsel's submission on behalf of the foster parents was that the rights of the local authority did not cease on the death of the child and that as a result it was possible for those rights to be exercised in favour of the foster parents. Purely as a matter of construction of that legislation, the Court of Appeal decided that Parliament could not have been presumed to have intended to take away the rights of the natural parents and therefore the natural parents, not the foster parents, had the right to bury the child. However, the Court of Appeal did not consider any of the law that I have outlined earlier and its judgment sheds no light on it.
23. Secondly, it was said on behalf of Mrs McManus that Rule 22 was the sole repository of law on the matter. There was no need to go to section 116 and in any event there was nothing here to displace Rule 22. It had not been demonstrated that Mrs McManus was wholly inadequate and those people like Mrs Jones, her sister, could ensure that suitable funeral arrangements were made. There was nothing in Mr Burrow's evidence to identify any specific concerns about the funeral arrangements if Mrs McManus took responsibility. In particular, it was said that although there had been a break for the last eight years, when Liam lived with the Burrows, there was a genuine desire on the part of him to re-establish the bond with his mother, and Mrs McManus was extremely desirous of that bond being renewed and continued.
24. Thirdly, it was said that if Section 116 did apply, while it is a difficult case, there were no special circumstances which made it necessary or expedient for the court to interfere and to deprive a natural mother of her rights under Rule 22. Finally, it was said that Article 8 was not engaged but, if it were the rights of the natural mother far outweighed those of the Burrows.
25. On behalf of the coroner, a number of submissions were made. These were clear and straightforward. The coroner wanted certainty. In particular, if he released the body to the wrong person, that could give rise to a claim in damages by the person who had a right to possession of the body. Rule 22, in this submission, was easy to apply. It would be wrong to impose on coroners the obligation to second-guess the exercise by the Court of its discretion under Section 116. There had been no instance where Section 116 had been used to overturn the priorities set out in Rule 22. There might be some contradiction in the authorities but, nonetheless, Rule 22 was clear and provided a certain guide to coroners in the exercise of their difficult functions. As far as the European Convention rights were concerned, it was conceded that coroners did exercise state power, but in that regard they should be accorded a wide discretionary decision making by the courts.

Application of legal principles

26. In my judgment the approach to be adopted is to consider whether, in light of the factors set out earlier, the court should exercise its discretion to vary the order of priority set out in Rule 22. The first stage involves identifying any special circumstances including, in accordance with Article 8 jurisprudence, the wishes of the deceased. The second stage is to decide whether, in the light of those special circumstances weighing in favour of varying the order of priority, if it is necessary or expedient to do so. In this case, there are the following special circumstances: first, the mother, Mrs McManus's addiction, for the last 25 years, to heroin. Whatever her good intentions, which she expressed in her evidence, I do not doubt that as a result of this addiction she is incapable of handling the funeral arrangements. Her sister, Mrs Jones, obviously from her evidence a capable woman, conceded that. Mrs Jones would be able to carry out the funeral arrangements, as she said she would, but she has no independent claim to do so. Indeed, she only met Liam on one occasion in the last eight years. Secondly, there are Liam's own wishes, agreed on all sides: he did not want to be buried; he wanted to be cremated. Thirdly, the existence of those clear wishes is coupled with my finding of fact that until the very eve of the trial Mrs McManus gave no indication that she had changed her stance from what she told the coroner, that she wanted burial. In other words, even though she acknowledged Liam's wishes for cremation she was prepared to override them. To put it no higher, this re-enforces concerns as to what will happen if the body is released to her. Fourthly, there is the position of the Burrows. They had assumed the role of parents of Liam and although their relationship was not perfect, although it was strained in the light of the trouble he had with the police, nonetheless there was a strong bond between Liam and the Burrows and especially with the Burrows' daughter, Laura. It may be that Liam wanted to establish a very close bond with his mother in the future, but his mother had deeply disappointed him when she failed to appear at court in August. The basic reality is that the Burrows were, what has been termed, his psychological parents. Finally, there is Liam's community in the St. Helen's area, where he has spent the last eight years of his very short life. He has no community in Liverpool, apart from his immediate family. I have little doubt that some parts of the St. Helen's community were fed up with Liam because of his criminal behaviour. Nonetheless, I accept the evidence that there were friends there, especially his friends at school. There are others who would have known him, and who would want to pay their respects, those in the criminal justice system, the youth offending team and also the pupil referral unit.
27. All of these are special circumstances and all point in the direction of varying the priority given to the natural mother, Mrs McManus, and therefore giving the right to the Burrows to take Liam's body and to arrange the funeral. However, there is a second hurdle for Mr Burrows to surmount and that is that he must demonstrate that it is necessary or expedient for the court to make an order in his favour. Buchanan v Milton, as indicated earlier, is a case where Baroness Hale easily dismissed necessity. In this case, however, my very firm view is that it is necessary for the natural mother's rights to be displaced. What mentioned as the first special circumstance is determinative. Mrs McManus is incapable of assuming the responsibility. That is terribly sad, and I understand her feelings as she told the Court that she had brought Liam into the world and wished to say goodbye to him along with her family in his home city in Liverpool. The fact is that the Burrows will make the funeral arrangements in accordance with Liam's wishes, and so his friends in St. Helen's can pay their last respects. The fact that Mrs McManus's sister could assume responsibility is beside the point. She has no standing herself. Of course, Mrs McManus's interests will be taken into account. She can attend the funeral in St. Helen's and she will receive the ashes to dispose of in the family plot in Liverpool.

Guidance for Coroners

28. Coroners need have no fear of the ruling in this case. Coroners need certainty but there is no uncertainty in what has been said. At the present, where there is no executor or administrator, they will simply apply the order of priority set out in Rule 22 of the Non Contentious Probate Rules to decide who has the right to claim the body of a deceased person. However, if someone lower in that order of priority, or not there at all, advances a claim, they will need to consider it. It may be that in those cases they will be able to effect a compromise. Mediation will often resolve the issue, for example, as to how the funeral will be conducted. A compromise is the most desirable outcome. Such disputes are not really matters for the courts.
29. In those cases, however, where a compromise is not possible, coroners need to make a decision. They do this by asking themselves two questions, first, are there any special circumstances which weigh in favour of varying the order of priority set out in Rule 22. Consistently with the jurisprudence of the European Court of Human Rights, special circumstances include the wishes of the deceased person, if there is clear evidence of those wishes. Given that there are special circumstances and these weigh in favour of varying the order of priority in Rule 22, a second question they need to ask is whether it is necessary or expedient to do so. Cases such as the present, where both questions can be answered affirmatively, will be very unusual. The courts will be slow to interfere, although if it appears that there may be a legal challenge to their decision coroners will need to delay releasing the body for a short time so that parties can apply for urgent relief. If cases are brought to the High Court, they can be and will be handled expeditiously.

Conclusion

30. In Leeburn v Derndorfer [2004] VSC 172, Mr Justice Byrne said that there is a lack of authority in this area and such authority as had been referred to him appeared to be based upon practicalities as much as principle. His Honour went on to say that there were competing pressures which made issues of dispute in the case of funeral arrangements, and who should get the body of a deceased person, particularly difficult to resolve, especially because they were based on feelings which were strongly held at a time of great emotional distress. In this jurisdiction practicalities do enter, but as a matter of law through the special circumstances which may make it necessary or expedient to vary the legislative order which would otherwise apply. As His Honour in that case noted, there are very deep feelings operating in such cases. Liam's death was tragic, but it is also tragic that it has not been possible for many people, until now, to bring closure to their loss. That can now take place.

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BEFORE THE HONOURABLE MR JUSTICE CRANSTON
ON THE 15^TH DAY OF MAY 2008


HQ08X00928

B E T W E E N :

KEVIN BORROWS

Claimant

v. HM CORONER FOR PRESTON AND WEST LANCASHIRE

Defendant

JOAN MCMANUS

Interested Party

ORDER

UPON HEARING Counsel for the Claimant, the Defendant and the Interested Party

IT IS HEREBY DECLARED that:

1. The Claimant is the person entitled under s 116 Supreme Court Act 1981 to the grant of letters of administration for the purposes of (a) making arrangements for the disposal of the body of the deceased, Liam McManus, by way of cremation, (b) making the necessary funeral arrangements and (c) making arrangements thereafter for the disposal of the deceased's cremated remains, upon the terms set out in the Schedule hereto.

AND IT IS HEREBY ORDERED AND DIRECTED that:

2. The Defendant shall make a cremation order under Reg. 8 of the Cremation Regulations 1930 and shall release the body of the deceased, Liam McManus, to the Claimant for the purpose of making the funeral arrangements.

3. The reporting restrictions imposed by Collins J on 18 January 2008 are hereby lifted.

4. A transcript of the judgment shall be prepared at public expense

5. There is no order for costs save detailed assessment of the publicly funded parties' costs.

SCHEDULE TO THE ORDER

The Claimant, Kevin Borrows will make all the necessary funeral arrangements which will be held at St. Helen's Crematorium or such other place as the Claimant may choose) at a time to be arranged. He agrees to do so on the following basis.

(1) The Interested Party, Mrs Joan McManus, and any of her family members are welcome to attend the funeral.

(2) The Claimant will notify the Interested Party of any time and venue (if different) in writing to the Interested Party's solicitors.

(3) The Interested Party may nominate a Catholic priest to officiate or co-officiate at the funeral ceremony in writing or telephone via her solicitors to solicitors for the Claimant by 4pm on Monday 2 June 2008. The Claimant will use his best endeavours to secure the services of the nominated priest but retains the right to appoint another priest (whether Catholic or of another denomination) at his complete discretion.

(4) Following the funeral service, the Claimant will arrange with the funeral directors and/or the crematorium for Liam's cremated remains to be collected by, or delivered to, the Interested Party, on strict condition that the Interested Party first notifies the Claimant in writing, via her solicitors to solicitors for the Claimant, of how, when and where she intends to dispose of the cremated remains.