Father wins right to move daughter’s remains to Monaco

The sheriff appeal court has granted permission for the disinterment of a teenager’s body to allow reburial in Monaco.

The facts

“Emma” died by suicide on 7 January 2002, aged 16. She was buried in Mortonhall Cemetery in Edinburgh shortly thereafter. Her parents and siblings tended to her grave since then.

In January 2019, Emma’s parents (“Mr and Mrs G”) moved to Monaco. They visited Edinburgh four times per year to see family, deal with business interests, and visit Emma’s grave. Her siblings remained in Edinburgh but are due to move to England as a result of the family business relocating there. The family anticipated that there would be no-one in Edinburgh to tend to Emma’s grave on a regular basis.

Initial sheriff court case

Mr G raised a summary application at Edinburgh Sheriff Court seeking warrant to allow Mortonhall Cemetery to disinter Emma’s remains and for funeral directors to transport her remains to Monaco for reburial. Evidence was led that, after more than 22 years, only skeletal remains would be in Emma’s grave.

This initial application was refused. The sheriff concluded disintegration of the body was not yet complete and a warrant to disinter the body was required. The sheriff could only grant a warrant if Mr G could show a sufficiently compelling case to enable the court to exercise its discretion – “there required to be circumstances of high expediency, necessity or cause which amounted to more than a matter of convenience.”

The sheriff concluded that the cause of Mr G’s application was “no more than convenience” and the application was refused. The sheriff said that Emma had no connections to Monaco; her parents may move again; and, in any event, upon their deaths there would be no one to tend to Emma’s grave in Monaco in a situation similar to the one in Edinburgh.

Appeal

Mr G appealed on three grounds:

The sheriff failed to recognise and give effect to his rights under Article 8(1) of the European Convention on Human Rights (“ECHR”) (the right to respect for private and family life).
The sheriff’s decision was improperly influenced by a concern that allowing the application would set a precedent.
The sheriff failed to take account of other cases in which expatriation of remains had been allowed.

Submissions for Mr G

Counsel for Mr G (Roddy MacLeod, Advocate) submitted that it was not clear what the public interest was in refusing the application. He argued:

That Mr G’s Article 8 ECHR rights had not been addressed before the sheriff at first instance. The sheriff had approached matters by applying a test of “cause which amounts to more than a matter of convenience” which was wrong. The correct test under Scots law in assessing whether disinterment should be allowed was to apply Article 8 of the ECHR. The sheriff ought to have assessed whether refusing Mr G’s application was an interference with his right to respect for family and private life which was proportionate and reasonable.
The sheriff’s judgment was not binding on any other court and, given its “exceptional and unusual” circumstances, others could not realistically rely upon the decision in future applications.
The sheriff had not properly considered the terms of case law which supported to position that weight should be afforded to the wishes of applicants.

Decision

Mr G’s appeal was allowed.

The court was satisfied that it should exercise its discretion to allow the disinterment and reinterment of Emma’s remains. It found that Article 8 ECHR rights are clearly engaged in decisions affecting the exhumation and transfer of the remains of a family member, that refusing Mr G’s application would inevitably interfere with his right to respect for private and family life, and that this was, in the circumstances, neither proportionate nor necessary.

The sheriff ought to have had regard to this and he erred in law by failing to do so.

The appeal court made the following findings:

Exhumation of human remains is governed by the common law in Scotland and is not set out in statute. Under the common law, “all human remains have “the right to sepulture” and to violate such remains deliberately is a criminal offence. The law recognises that human remains are sacred; they require to be protected against disturbance and should be treated with reverence, dignity and respect. However, human remains can be exhumed in certain well-defined circumstances.”

The court was clear that disturbing human remains by way of disinterment must be for good reasons amounting to more than convenience, with every case turning on its own facts and circumstances.

The court set out a list of the factors that could be taken into account:

(a) The deceased’s wishes and instructions, if any, in relation to their death.

(b) The circumstances of the death.

(d) The involvement of the applicant in the funeral arrangements at the time of death.

(e) The length of time which has passed since the death in the context of disintegration and the extent to which the remains will be disturbed.

(f) Whether there is any opposition to the application and the reasons for such opposition.

(g) Whether the remains can be disinterred sensitively without causing offence to public decency, public health concerns or disturbance of other human remains.

(h) The location of the proposed burial site and whether the proposed reinternment can be conducted with dignity and respect.

(i) Whether any interference with the applicant’s Article 8 ECHR rights is proportionate and necessary to protect the public interest in preserving the sanctity of graves.

The appeal court found that Mr G had established sufficient cause. Emma’s parents moved to Monaco in 2019 and it had taken five and a half years to bring the application. This amounted to more than convenience – if convenience had been the motive, the application may have been brought earlier. The court said it was confident that Mr G “seeks a final resting place for Emma in Monaco with her parents and that the application is not presented as little more than an attempt to disturb sacred human remains to suit the needs of an increasingly mobile society”.

The court took into account the following facts:

Emma had lived in Edinburgh since the age of around 4. She died in her teenage years in tragic circumstances which had deeply affected her family.
There was no information about her wishes or intentions upon her death.
Mr G was involved in Emma’s funeral arrangements at the time.
Emma had been buried for 23 years. It was likely that only skeletal remains existed and “exhumation in those circumstances would not amount to desecration nor cause any offence to public decency”.
There was no opposition to the application.
Edinburgh Council confirmed that the removal of Emma’s remains would not interfere with cemetery or the rights of third parties.
The relevant bodies in Monaco confirmed that the reinterment of Emma’s remains was feasible.

In relation to other two grounds of appeal, the appeal court made the following comments:

Concern around setting a precedent. This was an irrelevant factor. The sheriff’s decision was not binding on any other sheriff or court. Further, every case turns on its own facts and circumstances and the case ought to have been considered solely on its own merits.

Failure to consider the case law. This ground of appeal was without merit. Other case law may have been of little assistance and could be distinguished it from the facts of Mr G’s case.

Comment

This is undoubtedly a sensitive case. Balancing the sanctity of burial grounds with the surviving family’s right to respect for private and family life is not easy. The appeal court is clear that each case turns on its own facts and circumstances, and due regard must be given to those in each case so as to ensure that any interference with Article 8 rights is proportionate and reasonable.

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