Disputed burial and the Senior Courts Act 1981: Ganoun

The issue in Ganoun v Joshi & Anor [2020] EWHC 2743 (Ch) was the disposal of the remains of a man who died in September 2020 as a result of a road traffic accident leaving a widow, Ms Joshi [1 & 3].


The deceased was born in Algeria but had lived in England for the last 15 years. His parents and his three siblings all still live in Algeria [2]. His mother, Mrs Ganoun, wanted him to be buried in Algeria next to his grandmother [4]. Having become aware that Ms Joshi was planning to arrange a funeral in the UK, and in the absence of any agreement to delay matters, Mrs Ganoun made an urgent application to the court with notice to the respondents on 30 September 2020 seeking an order that she be appointed as administrator of her son’s estate (in order to give her the right to make the funeral arrangements) or, alternatively, requesting the court to exercise its inherent jurisdiction to make directions about the disposal of her son’s body. She also sought an injunction preventing Ms Joshi from taking any steps to dispose of the deceased’s body pending the outcome of the proceedings [4 & 5]. But the application was too late: Ms Joshi had arranged for her husband to be buried in a Muslim cemetery at a private ceremony, conducted by the Imam for Barts NHS Trust, on the morning of 30 September [6].

To confuse matters even further, there was a dispute about the deceased’s name: his mother said that he was called Lamine Ouabri [19] while his wife knew him as Omar Djabali [21]. Deputy Judge Robin Vos – who referred to him throughout as “the deceased” – concluded that “Lamine Ouabri and Omar Djabali were one and the same person, namely the deceased” [25].

Mrs Ganoun intended to apply to the Secretary of State for permission to exhume her son’s body in accordance with s.25 Burial Act 1857 in order to re-bury him in Algeria. The normal rule is that the deceased’s executor or administrator has the right and duty to make the funeral arrangements; but s.116 Senior Courts Act 1981 gives the court discretion to appoint some other person than the deceased’s widow – in this case, Ms Joshi – if any special circumstances make it necessary or expedient to do so. Accordingly, Mrs Ganoun applied to the Chancery Division to be appointed administrator of her son’s estate in accordance with s.116.  She also sought a declaration that her son had not been buried “decently” and a declaration as to his true identity [8].

The primary submission advanced on her behalf was that the fact that the deceased had been buried using the “wrong” name was a special circumstance that justified the exercise of the court’s discretion under s.116. Counsel argued that this had affected Mrs Ganoun’s ability to mourn her son, “as well as the more practical issue of getting immigration permission to enter the UK in order to visit the grave” [38].

The judgment

Deputy Judge Vos was not satisfied that it would be right to make a declaration as to whether or not the deceased’s burial was “decent”:

“There are many ways of looking at what might or might not be decent. It is not part of any established legal test; instead, it is simply a factor which the court might take into account in determining who should have the right to dispose of a body” [15].

The only purpose of such a declaration would be to strengthen any application which Mrs Ganoun might wish to make to exhume her son’s body for reburial [16]. There was, however, a practical purpose in making a declaration about the deceased’s identity: that Mrs Ganoun and her family in Algeria might have difficulty in obtaining a visa to visit the UK and see her son’s grave if the name under which he was buried did not correspond with the name of the person who was her son [17 & 18].

It was argued on Mrs Ganoun’s behalf that she should be appointed as administrator “in order to break the deadlock between the parties”. In the opinion of Deputy Judge Vos, however, there was no deadlock in the present case, “given that Ms Joshi has arranged her husband’s burial, albeit against Mrs Ganoun’s wishes. Instead, the purpose of inviting the court to appoint Mrs Ganoun is to assist her in her application for permission to exhume her son’s body” [71]. Nor was it necessary for Mrs Ganoun to be appointed as administrator in order to be able to apply for such permission [72].

As to the application in relation to the deceased’s identity and date of birth, however, he considered it necessary to make the declaration sought:

“It will assist Mrs Ganoun and her family in obtaining a visa to travel to the UK to visit her son’s grave. There is no suggestion that making such a declaration would have a material adverse impact on any third party” [77].

Comment: John Bryant, who appeared for Ms Joshi, suggests that the judgment provides guidance in cases where there is disagreement as to who is to have charge of funeral arrangements and how a body is to be disposed of. It is also a useful example of how the court approaches the exercise of its inherent jurisdiction.

[With thanks to Simon Hunter of Three Stone Chambers for drawing the judgment to our attention.]

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