Borrows v HM Coroner for Preston
 [2018] WTLR 365

WTLR Issue: Summer 2018 #172

KEVIN BORROWS

V

1. HM CORONER FOR PRESTON

2. JOAN MCMANUS

Analysis

.This case concerned the burial arrangements of Liam McManus (Liam), who 
took his life aged just 15. Liam had a difficult upbringing. His parents 
were heroin addicts and so he was brought up by his maternal grandparents 
in Liverpool until he entered foster care aged 5. Two years later he moved in 
with the claimant, Mr Burrows, (who was Liam’s paternal uncle) and his family in St Helens and a full residence order was made in favour of the claimant 
and his wife. Mr and Mrs Burrows were described as his psychological
 parents.

In the year before he died, Liam made contact with his mother, Mrs McManus (the interested party in these proceedings). They quickly developed a close bond, though Liam’s ties to the Burrows family remained strong.


In November 2007 Liam tragically took his own life. Following an inquest by the 
coroner, Mr Burrows began to make funeral arrangements. However, when 
Mrs McManus heard of Liam’s death she made a claim for Liam’s body. The 
coroner unsuccessfully attempted to mediate between the parties; when the coroner 
advised that the normal rule was that Mrs McManus’ claim would take priority, 
the claimant issued an application for judicial review.


Under r22 of the Non-Contentious Probate Rules 1987 (NCPR), Mrs McManus 
would normally have priority to determine the disposal of Liam’s body, as she 
was the person with the best right to a grant of administration. However, the court 
had power, under s116 of the Senior Courts Act 1981, to appoint as Liam’s personal representative a person other than the one who would normally have this right under the NCPR.


The core issue that the court had to determine was whether Mr Burrows or 
Mrs McManus should decide what should happen to Liam’s body.


Held:


  1. 1) There is no proprietary interest in a deceased person’s body. Normally, personal representatives have the right to determine the mode and place of disposal of the deceased’s body, even where family members object. Where no personal representatives have been appointed, the person with the best right to the grant of administration takes precedence.

  2. 2) The correct approach for a coroner to take is to follow the normal order of 
priority set out in r22 of the NCPR unless it is challenged. Where that 
occurs, and a compromise cannot be agreed, the coroner should ask two 
questions:

  3. a. Are there special circumstances which may displace the order of priority set out in Rule 22 of the NCPR?

  4. b. If so, is it necessary or expedient, by reason of those special circumstances, to displace the normal order of priority?

  5. 3) The jurisprudence of the European Court of Human Rights made it clear that the view of a deceased person as to their funeral and burial arrangements ought to be taken into account. This could be done by treating these views as a special circumstance under s116 of the Senior Courts Act 1981.

  6. 4) In this case, the special circumstances (including Liam’s own wishes) were such that it was necessary to displace the normal order of priority and find in favour of the claimant. 

<![CDATA[ JUDGMENT
 CRANSTON J:
 [1] Who has the right to make the funeral arrangements: the natural parents of a young man on the one hand, or a person who has brought him up for a considerable period of his life on the other? The common law provides a bright line rule, although the issue which …
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Counsel Details

Counsel
Paul Bowen (Brick Court Chambers, 7-8 Essex Street, London, WC2R 3LD) instructed by Bhatt Murphy Solicitors (10 Tyssen Street, Dalston, London E8 2FE, tel 020 7729 1115, e-mail mail@bhattmurphy.co.uk) appeared on behalf of the claimant.



Simon Vaughan appeared on behalf of the defendant.



Jason Smith appeared on behalf of the interested party.


Cases Referenced

Legislation Referenced

  • Child Care Act 1980, s25
  • Senior Courts Act 1981, s116