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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Borrows v HM Coroner for Preston [2008] EWHC 1387 (QB) (15 May 2008) URL: https://www.bailii.org/ew/cases/EWHC/QB/2008/1387.html Cite as: [2008] Fam Law 984, [2008] EWHC 1387 (Admin), [2008] EWHC 1387 (QB), [2008] 2 FLR 1225 |
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QUEEN'S BENCH DIVISION
Strand London WC2R |
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B e f o r e :
____________________
KEVIN BORROWS | (Claimant) | |
v | ||
HM CORONER FOR PRESTON | (Defendant) | |
JOAN MCMANUS | (Interested Party) |
____________________
Cliffords Inn, Fetter Lane, London EC4A 1LD
Tel: 020 7269 0370
SIMON VAUGHAN appeared on behalf of the DEFENDANT
JASON SMITH appeared on behalf of the INTERESTED PARTY
____________________
Crown Copyright ©
MR JUSTICE CRANSTON:
Background
The Law
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.
'(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.
Human Rights Act
'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.'
Arguments of the natural mother and the coroner
Application of legal principles
Guidance for Coroners
Conclusion
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BEFORE THE HONOURABLE MR JUSTICE CRANSTON
ON THE 15TH DAY OF MAY 2008
HQ08X00928
Claimant
Defendant
Interested Party
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.
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.