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Re E: When the Court is Charged with a Child’s Funeral

James Netto, Senior Associate with Dawson Cornwell, considers the latest judgment on parental disputes concerning a child’s burial

James Netto, Senior Associate Dawson Cornwell



For any family, nothing can be more unspeakably tragic than the death of a child. For the family at the heart of the case of Re E (A Child: Burial Arrangements) [2019] EWHC 3639 (Fam), the immense sadness of the loss of their child was compounded not only by the child having been murdered by the mother's partner, but also by there being a dispute as to the child's burial arrangements. It was this latter question that came to be determined by HHJ Jones, sitting as a Deputy High Court Judge, in the Family Division.


Facts

The parents were never married, and resided in the West Midlands. Their daughter, E, was born in December 2015. The father was never registered on the child's birth certificate, and as such did not hold parental responsibility for her.

The child resided with both parents until their separation in 2017. Shortly thereafter, the mother and child relocated to the West Country, where they lived with a six-year-old child from an earlier relationship, and with the mother's new partner, Mr C.

In October 2017, the child was found dead at their home in suspicious circumstances. She was aged just 22 months old at the time. Following a lengthy trial in the criminal court, in March 2019, Mr C was convicted of E's murder and sentenced to a 20-year custodial sentence. Separately, the mother was convicted of causing or allowing the child's death, and she was sentenced to a three-and-a-half year sentence of imprisonment.

The child's remains were kept in the care of the local coroner pending the conclusion of the criminal trials. Following the two convictions, the father wished to make arrangements for the child's funeral, but without parental responsibility, he was effectively excluded from doing so as the coroner refused to release the child into his care. Fearing that the mother might unilaterally seek to arrange for the child's funeral (and potentially for that funeral to take place in the West Country), the father brought proceedings before the Family Division, seeking injunctions against such action until the matter could be determined in full. The father also sought for a letter of administration to organise the child's funeral, and for a declaration of parentage. Whilst the issues of parentage and injunctions were ultimately determined by consent as the proceedings went on, the final, thorny question for the court to consider was who would be entrusted with the task of organising the child's funeral.


What powers does the court have to settle a dispute of this nature?

A dead body is not property or a chattel, and as such, 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 (see Kay J in Williams v Williams [1882] LR 20 ChD 659), and indeed is charged with the duty to arrange for its proper disposal. Separately, funeral wishes in wills (unlike gifts such as money) are not legally binding, but may of course prove influential for any judge.

In this matter, per s.7 Wills Act 1837, the child could not make a valid will, and so died intestate. Per s.46(1) of The Administration of Estates Act 1925, the child's residuary estate is held on trust for his father and mother in equal shares. No one else is entitled under her intestacy. This therefore opened the way for either of the parents to apply for a grant of letters of administration, permitting them to take charge of the child's funeral.

The right to apply for a grant is governed by r.22 of the Non-Contentious Probate Rules 1987 ('NCPR'). Rule 22(1)(c) provides that:

"Where the deceased died … 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"

Disputes between executors or administrators about the disposition of a body have generally been dealt with either in the manner of the resolution of a dispute between trustees, or as an application to displace the administrator of an estate.


Disputes of this nature have typically been framed under one of three heads, namely:

a. s.116(1) Senior Courts Act 1981:

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.

b. the inherent jurisdiction, see Anstey v Mundle [2016] EWHC 1073 (Ch), Hartshorne v Gardner [2008] EWHC 3675 (Ch) and Re JS (Disposal of Body) [2016] EWHC 2859 (Fam).

c. to the extent it constitutes a separate head, r.27(6) NCPR:

A dispute between persons entitled to a grant in the same degree shall be brought by summons before a district judge or registrar.

The court should generally refrain from giving directions for the disposal of the body, but instead is tasked with resolving any disagreement about who may make the arrangements: see, for example, Anstey v Mundle.

The use of s.116 SCA 1981 was doubted in Anstey, where the court determined a dispute concerning the burial of a body under the court's inherent jurisdiction. In cases where the inherent jurisdiction is engaged, the court is charged with carrying out a discretionary exercise, identifying, weighing and balancing the appropriate factors. As such, the court in Anstey considered the following factors as being pertinent to the dispute:

25.     "…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 [in Hartshorne v Gardner], '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."


What jurisdiction should hear this dispute?

Disputes concerning the disposal of a body have been heard in all three divisions of the High Court; by way of example: Buchanan v Milton [1999] 2 FLR 844 (the lead case on s.116 SCA 1981) as determined by Hale J in the Family Division, Borrows v HM Coroner for Preston [2008] EWHC 1387 (Admin), [2008] 2 FLR 1225, as determined by Cranston J in the Queen's Bench Division, and Scotching v Birch [2008] EWHC 844 (Ch), as determined by Patten J in the Chancery Division.

The matter of Re E was issued in the Family Division, in the light of the intertwining issue of the father's lack of parental responsibility. No issue was raised as to the jurisdiction of the court to determine a dispute of this nature. The issuing of proceedings in the Family Division further afforded the father public funding, which may not have been granted in other divisions of the High Court.


The mother's locus

A fundamental question for the court in Re E was to determine whether the mother could oppose the father's application, given that she had been found to have caused or allowed the child's death. This was determined by Moor J on 25 July 2020.

Quite aside from a more generalistic, quasi-equitable argument, the issue of the mother's locus in this case was not a world away from that of Scotching v Birch. In Scotching, the mother killed her young son in the midst of a bitter court battle with the child's father. The mother later pleaded guilty to the child's manslaughter, denying murder on the grounds of diminished responsibility, and the court then came to determine the father's application concerning the child's burial. The court held that the father's wishes were to prevail, despite him having had no contact with his son for several years, and the mother and her other children wanting to bury the child elsewhere. Patten J in that case held that the mother had effectively forfeited her rights by killing her son and having been convicted of the child's manslaughter.

In the present matter, Moor J however held that the mother did have locus to oppose the father's application in this case. In Scotching, the child had been killed by the mother, whereas in Re E, the mother had been found by the criminal courts to have caused or allowed the child's death. The mother had also not 'benefitted' from her crime, and as such was not barred from opposing the father's application


The father's parental responsibility

This application was framed not only as a dispute concerning the child's burial, but also as a dispute concerning the father's parental responsibility over the deceased child. At the time of issuing the application, it was not known whether the mother would defend this, which potentially risked the father from being barred from making an application under Rule 22 NCPR. Whilst the channel of the inherent jurisdiction and s110 SCA may have still been open to him, ultimately, the mother did not seek to oppose this declaration of parentage. If the mother had opposed, it may well have been open to the court to order a DNA test of the child posthumously, as was the case in Anderson v Spencer [2018] EWCA Civ 100. Thankfully, this was one issue settled by consent.


Determination

The mother objected to letters of administration for the father, stating that the father's arrangements were not respectful. The father had an extensive social media presence, on which he had been particularly vocal about the child's death and her funeral. As such, the mother alleged that if the father were to arrange the funeral, his proposals would draw attention to it, not least by reason of its location and the hearse selected. The mother also maintained that her proposals were more respectful and the safety risks would be reduced both to her and to members of her family. The mother also highlighted that she was not convicted of homicide and was not to be disqualified from obtaining a grant of administration.

The father sought for sole letters of administration in his favour, asserting that he was a suitable person for a grant under Rule 22. Secondly, his proposals were said to be respectful and the mother's apprehensions unfounded. As the proceedings evolved, the parents had compromised on many issues, and he suggested that he was acting reasonably by providing assurances about withholding any information about the funeral to media and outsiders. Finally, the father averred that the mother's conviction and circumstances rendered her unsuitable for a grant of administration.

In determining the dispute in the father's favour pursuant to s116, HHJ Jones found the following factors to be of ultimate relevance:

1. The unhappy circumstances of E's death.

2. The mother's conviction.

3. The custodial sentence imposed upon her and its practical impact upon her ability to fulfil her duties which she could only discharge with the assistance of a third party, namely, E's step-grandfather, or perhaps the grandmother.

More pragmatically, the issue of how an incarcerated parent would be able to organise a funeral from prison was clearly one that the judge held as central in his eventual determination. Due to what the judge held to be the "special circumstances" of this case, and to facilitate the discharge of the duties of administration and to resolve the intractable intra-parental dispute remaining, the judge determined that it would be necessary and expedient to substitute the father for the mother under Section 116:

"Where a child is taken from this world in her infancy, in the tragic circumstances of this case, where one surviving parent is incarcerated and hampered in the practical exercise of her duty as an administrator, what could be more obvious than the substitution of the deceased's second surviving parent able and willing to discharge this responsibility? The mother does not ask for a grant to a non-parent, and on what conceivable basis should I consider any alternative grantee, for example, [the child's] maternal step-grandfather or grandmother? This, I believe, would aggravate a situation which is already fraught, and, as indicated by Hayden J in Re K, whilst these third parties do in fact fall within Rule 22, they fall within a lower hierarchy of priority than does a birth parent."

The judge refrained from micro-managing "the funeral arrangements which are so intimately connected with family life and in this instance by parental ties". The judge went on to comment that "public taste and convention in the organisation of funerals or cremations is constantly evolving, and a court should be slow to direct where or how a deceased would be buried… One can always envisage an extreme case where respect and decency was being totally disregarded and intervention might be required, but I have no reason to conclude that what is proposed by the father crosses that line."

A dispute of this nature is almost inconceivably tragic, and the court is charged with undertaking a respectful but ultimately emotion-free analysis. It is not for the court to determine in detail how a child should be buried, but who is the more capable person to organise the child's funeral. In Re E, and much to their credit, many of the individual elements of the funeral arrangements had been agreed between the parents, which went on to be set out in the final order. However, where there was dispute, the court was able to find in the father's favour by determining that he was the best-placed to make arrangements for the child's funeral.

Following a modest, private service attended by both parents and by members of the paternal and maternal families, the child was finally laid to rest in the spring of 2020, nearly three years after her murder.


James Netto represented the successful applicant father in this matter

9/6/20