Borrows v HM Coroner for Preston

Where no executor or administrator has been appointed, the person entitled to arrange a deceased person’s funeral is ordinarily determined by the order of priority in Rule 22 of the Non-Contentious Probate Rules 1987. That priority may be displaced under section 116 of the Supreme Court Act 1981 where special circumstances exist and it is necessary or expedient to do so. The deceased’s clear wishes are relevant special circumstances. Article 8 may also require the court to balance competing family-life rights. Such cases will be unusual, and courts should interfere slowly. Coroners should first apply the statutory priority, seek compromise where possible, and delay release briefly where an urgent legal challenge is reasonably anticipated.

Liam McManus, aged 15, died while detained. His paternal uncle, Kevin Burrows, had brought him up for eight years under a residence order and sought to arrange his cremation. Liam’s natural mother, Joan McManus, claimed the body and preferred burial in Liverpool.

The dispute came before the High Court after permission for judicial review had been granted, but Collins J directed that the matter be resolved by a claim in the Queen’s Bench Division because oral evidence might be required. The central issues were whether the statutory priority favouring the natural mother could be displaced under section 116 of the Supreme Court Act 1981, and whether Articles 8 and 9 of the Convention affected the analysis.

1. Common-law and statutory framework. At common law there is no property in a deceased person’s body. Where no personal representative has been appointed, Rule 22.1 of the Non-Contentious Probate Rules 1987 establishes the order of priority for a grant of administration and therefore ordinarily determines who may claim the body. Section 116 of the Supreme Court Act 1981 permits the High Court, in special circumstances, to appoint another person where it is necessary or expedient to do so.
2. Two-stage inquiry. The court must first identify special circumstances capable of displacing the Rule 22 priority. It must then decide whether, in light of those circumstances, displacement is necessary or expedient. Variation will be rare. The decision in Buchanan v Milton [1999] 2 FLR 844 illustrates the high threshold.
3. Convention rights. The deceased’s clear wishes about funeral arrangements must be taken into account as a special circumstance. Article 8 may also protect family life between the deceased and different family groups. Where competing Article 8 rights are engaged, the court must focus intensely on their comparative importance and balance them so as to minimise interference with each. The European authorities do not otherwise displace the domestic statutory scheme.
4. Application. Liam’s mother’s long-standing heroin addiction made her incapable of handling the arrangements. His clear wish for cremation, her previous intention to arrange burial despite that wish, the strong relationship with the Burrows family, and his connection with the St Helen’s community were special circumstances. It was necessary to displace the mother’s priority. The claimant was therefore entitled under section 116 to the grant of administration for funeral purposes.
5. Guidance and order. Coroners should ordinarily apply Rule 22, seek compromise, and consider an alternative claim where one is advanced. If compromise fails, they should apply the two-stage inquiry. The claimant was entitled to arrange cremation, with arrangements accommodating the mother’s attendance and receipt of the ashes. The coroner was directed to release the body to him under regulation 8 of the Cremation Regulations 1930.

Permission for judicial review was granted by Collins J in January 2008. Collins J considered that the issues should instead be resolved by a Queen’s Bench claim because oral evidence might be required. The claim was then determined at first instance by the High Court.