E (A Child: Burial Arrangements)

Where a child dies intestate, the administrators of the estate have the duty and right to arrange the proper disposal of the body. Where administrators entitled under Rule 22 cannot agree, Burrows v HM Coroner for Preston establishes a two-stage approach under section 116 of the Senior Courts Act 1981: identify special circumstances, then determine whether variation is necessary or expedient. The court may substitute one entitled administrator for another. The inherent jurisdiction may also resolve disputes, but the court should avoid micro-managing funeral arrangements and intervene only where respect, decency or public order would otherwise be compromised. In assessing the arrangements, the wishes of the deceased, familial connections, proper respect and decency, absence of undue delay, and the reasonable wishes and requirements of surviving family may be relevant.

The father applied for a declaration of parentage and a limited grant of letters of administration concerning the burial of his deceased 22-month-old daughter. The mother did not oppose the parentage application but disputed the father’s entitlement to sole authority over the funeral arrangements. Both parents were entitled to administration under Rule 22 of the Non-Contentious Probate Rules 1987, but they disagreed about the cemetery and type of hearse. The mother was serving a custodial sentence following her conviction for causing or allowing the child’s death. The central issues were whether section 116 of the Senior Courts Act 1981 or the inherent jurisdiction should be used, and whether the father should be substituted as administrator.

1. The court granted the father a declaration of parentage and declared him entitled under section 116 of the Senior Courts Act 1981 to a limited grant of letters of administration for arranging the disposal of the body and the funeral.

2. The common-law duty to arrange proper disposal fell on the administrators of the intestate estate. Both parents qualified under Rule 22 of the Non-Contentious Probate Rules 1987. Section 116 and the inherent jurisdiction could be used to resolve disputes between persons entitled to administration.

3. Following Burrows v HM Coroner for Preston, the court first identified special circumstances capable of displacing the Rule 22 priority and then considered whether variation was necessary or expedient. The unusual circumstances included the child’s homicide, the mother’s conviction and imprisonment, and the practical difficulty of her discharging administrative duties without assistance.

4. The court accepted that section 116 permitted one administrator to be substituted for another or for joint administrators. A birth parent had priority over other possible grantees. Substitution of the father was necessary and expedient to resolve the intractable dispute and facilitate the child’s burial.

5. In exercising the inherent jurisdiction, the court applied the factors identified in Hartshorne v Gardner: the deceased’s wishes where known, the place of closest connection, proper respect and decency without undue delay, and the reasonable wishes and requirements of surviving family. The child’s infancy meant that her wishes were not relevant.

6. The court should generally avoid directing where or how a deceased person is buried. The proposed cemetery and horse-drawn hearse were not inherently undignified or exceptional. There was insufficient evidence that the arrangements would compromise respect, decency or public order, and the father’s assurances concerning media attention were accepted.