K (A Child : deceased), Re

A dead body is not property, but the deceased’s personal representatives have the duty to arrange its proper disposal. Where competing persons are entitled to administration, Senior Courts Act 1981, section 116 requires the court to identify special circumstances and then decide whether it is necessary or expedient to displace the ordinary order of priority. Such cases are rare. Separately, the Family Division may use its inherent jurisdiction to authorise burial or cremation where that is necessary to protect the welfare and dignity of a child. Proper respect, decency and avoiding further delay are central considerations. The court may authorise a local authority to arrange disposal where the parents have failed to do so and no coherent reason justifies further postponement.

Gloucestershire County Council sought authority to arrange the burial or cremation of K, a child who had died in July 2016. The child’s body had been released by the Coroner but remained unburied for several months. Neither parent had arranged the funeral. The father’s representatives sought a further delay while considering whether additional examination of the body might be required for the criminal proceedings. The central issues were whether the court had jurisdiction to authorise disposal, whether the statutory administration route under section 116 was available, and whether the proposed forensic examination justified postponement.

1. Jurisdiction and duty. There is no ownership of a dead body. The personal representatives nevertheless have possession for the purpose of disposal and the duty to arrange a proper burial or cremation. The ordinary priority for a grant of administration is established by rule 22 of the Non-Contentious Probate Rules 1987.
2. Section 116 route. Under section 116 of the Senior Courts Act 1981, the court must ask whether special circumstances exist and, if so, whether it is necessary or expedient to displace the ordinary priority. The circumstances in which that priority will be varied are rare. Any alternative grantee must have standing, ordinarily through the hierarchy of priority or possession of the body.
3. Inherent jurisdiction. The inherent jurisdiction is a limited jurisdiction which must be used sparingly and consistently with the constitutional role of the court. It nevertheless permits orders concerning individuals and their affairs where no specific statute governs. Its parental foundation means that the court may act as a wise parent for the true interests of a child.
4. Relevant considerations. In deciding arrangements for disposal, the court may consider the deceased’s wishes, the reasonable requirements and wishes of the surviving family, the location with which the deceased was most closely connected, and, most importantly, proper respect and decency together with disposal without further delay. The court agreed that the prolonged failure to bury K failed to satisfy those requirements. The statutory duty imposed on a local authority by section 46(1) of the Public Health (Control of Disease) Act 1984 reinforced the public policy favouring prompt disposal.
5. Order. The proposed spinal examination was speculative and lacked demonstrated utility. No coherent argument justified further delay. The court therefore authorised Gloucestershire County Council to arrange K’s burial or cremation, the funeral arrangements and, if applicable, disposal of the ashes. The funeral subsequently took place with both parents present.