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Family Law

The leading authority on all aspects of family law

15 MAY 2008

CORONER: Borrows v HM Coroner for Preston (McManus Interested Party)

(Queen's Bench Division; Cranston J; 15 May 2008)

In releasing a body to a family member the coroner would, if there were no executor or administrator, simply apply the order of priority set out Non-Contentious Probate Rules 1987 SI 2024, r 22; however, if someone lower in that order of priority, or not there at all, advanced a claim to determine the mode and place of disposal of the body, even where other members of the family objected, the coroner would need to consider that claim. Mediation would often resolve the issue, but if a compromise was not possible, coroners needed to make a decision. In exercising the discretion to vary the order of priority, under Supreme Court Act 1981, s 116, the first stage was to identify any special circumstances, including the wishes of the deceased. The second stage was to decide whether any such special circumstances justified a variation of the order of priority, in that they made it necessary or expedient for the court to vary the priority. Special circumstances in this case included the mother's long-term drug addiction, which made her incapable of handling the funeral arrangements, the child's expressed wish to be cremated; the mother's willingness until the eve of the trial to override those clear wishes; the child's strong bond with the relatives who had cared for him for many years and who had become his psychological parents; and the child's contacts within his local community. It was necessary for the mother's rights to be displaced; her drug addiction was determinative, because it meant that she was incapable of assuming the responsibility.

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