Rest in peace – burial of a child’s remains when there is a dispute

Family Law|November 29th 2015

A dispute between parents over where or how to dispose of a child’s remains seems too tragic to contemplate. However, when two parents lead separate lives it can become a huge trigger for dispute.

Recently, such a case grabbed national headlines.  A father was convicted of the manslaughter of his son Kye Backhouse. Tragically, Kye’s ashes were held at the funeral parlour for over a year because his father refused to allow their release to Kye’s mother, Kerrie Backhouse.

Stowe Family Law heard about this case and decided to help Kerrie pro bono.

When a child dies, usually both parents have an equal right to apply for a ‘Grant of letters of Administration’ from the Probate Court. Any dispute over how remains are dealt with can then be heard as part of that application. The Court will then take all the circumstances into account and will attempt to make sure that the body is disposed of with all proper respect and decency required, with as little delay as possible.

The deceased Administrator or Personal Representative – as appointed by the Probate Court – will have the right to determine how and where the remains of a deceased person should be disposed, even if family members disagree.

In the tragic event that a child’s death is caused by a parent, public policy dictates that the parent responsible will not be able to receive any benefit under the estate. They forfeit their rights when they are convicted and there are very limited circumstances where the court will override that forfeiture rule.

The convicted parent will also lose their prior right as a parent to apply for a Grant of Administration and therefore lose any rights they would have to determine the burial of a child’s remains.

From being instructed, Jane Gray based in our Hale office, who heads our Probate Department has acted swiftly and  efficiently to be able to secure the release of the child’s ashes in order that he can finally be laid to rest.

We are pleased that we were of assistance in this case.

Photo by Kylir Horton via Flickr

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