Commentary on Sections Adults and children Section 66 – Arrangements on death of child
171.Section 66 applies in respect of the arrangements to be made following the death of a child. A child is someone who is under 16 years of age.
172.Subsection (2) provides that the nearest relative may make the arrangements for the burial or cremation of their remains. As with section 65, the nearest relative is not obliged to make the arrangements if they do not wish to do so, or are unable to do so.
173.Subsection (3) sets out the order of priority of the nearest relative who may instruct the disposal of the remains and the nearest relative is defined in paragraphs (a) to (g) of subsection (3). Subsection (3)(g) refers to ‘a friend of long standing of the child’. This is intended to allow adults who had a relationship with the child to make a decision even if they do not fall into any of the familial categories set out at paragraphs (a) to (f) of subsection (3). Subsection (4) provides that the relatives will rank in the order of those paragraphs.
174.A relative who is a half-blood relation will be treated in the same way as a relative who is of the whole-blood. Subsection (5) provides that where there is more than one person of the same rank in any of the paragraphs, each of them will rank equally with the others in the same paragraph. This is the same process as for section 46, but the hierarchy established by paragraphs (a) to (g) of subsection (3) takes account of the different relationships a child would have as opposed to the relationships of an adult.
175.Subsection (6) provides that a child who is under 16 years of age immediately prior to the death will not be eligible to instruct the burial or cremation of the remains unless they are the parent of the child who has died. This will ensure that anyone under the age of 16 who is a parent will not be excluded from making the decision. Anyone who would otherwise be eligible under paragraphs (a) to (g) of subsection (3), but does not wish to make the arrangements or is unable to make the arrangements for any reason will not be included. This ensures that no one can be forced to take on responsibility for making such arrangements.
176.Subsection (6)(c) sets out that where it is not reasonably practicable to communicate with the person in the time available they will be excluded and will not be called upon to make the arrangements. This will apply even if the person would have wished to make the arrangements.
177.This section is subject to section 92 of the Public Health etc. (Scotland) Act 2008, which will apply if there is any risk to public health as a result of the presence of a person’s body in premises other than a mortuary or hospital.