About this case:

• Citation:
  [2022] NIQB 38
• Judgment:
  External link
• Court:
  NI High Court
• Judge:
  Mr Justice Kevin Rooney

The applicant launched legal proceedings against the Department for Communities (DfC) after she was refused permission by her mother-in-law, who owned the original burial plot property rights.

Background

The applicant’s husband was shot and killed in her presence on 13 August 2015. The deceased was buried in a plot “owned” by his mother, the applicant’s mother-in-law.

The applicant’s daughter, who was terminally ill, made a request to her grandmother to be buried alongside her father, prior to her death. That request was refused.

The applicant sought for the remains of her husband to be exhumed so that they could be interred in the same grave as their daughter. The deceased’s mother also refused consent to exhumation.

The owner of the cemetery, Belfast City Council (BCC), indicated that consent would be required by the DfC, the owner of the rights of burial, and the nearest surviving relative.

Guidance produced by BCC noted that the purchase of burial rights means that they are owned forever, and the grave cannot be opened without the owner’s permission.

The applicant contended that the refusal to consent to the exhumation was in breach of her rights pursuant to Article 8 ECHR, and claimed that the Department’s refusal to exhume except in “exceptional circumstances” was inconsistent with the requirements of Article 8 ECHR.

Consideration

The court accepted that Convention rights are engaged in exhumation decisions, on the basis that such decisions may legitimately raise issues regarding rights to private and family life under article 8 ECHR, particularly regarding the determination of the resting place of the remains of a loved one.

The court also made reference to the leading authority decision of the European Court of Human Rights in Dodsbo v Sweden [2007] 45 EHRR 22.

That case involved a wife seeking to have her husband’s remains moved from one cemetery to another, where the original plot no longer had any real significance to her or her children.

The government submitted that the principle of the sanctity of graves had a long-standing tradition and was founded on reverence for the deceased. As such, it was necessary to follow a restrictive approach for exhumations, as this was important in order to prevent conflicts arising amongst relatives.

Ultimately, the majority of the court (four votes to three) concluded that there had been no violation of Article 8 of the ECHR.

In this case, similarly, the respondent argued that although Article 8 had been engaged, there had been no interference with the applicant’s rights. They argued that where there was a dispute between the plot owner and the nearest surviving relative, they retained a discretionary power on how to proceed.

Under their policy, the respondent claimed that they balanced the Convention rights of both parties, and gave careful consideration to the applicant’s request. Ultimately, they decided that:

The applicant’s argument was that in reaching this decision, the respondent gave excessive weight to the property rights of the applicant’s mother-in-law and by applying an ‘exceptional circumstances’ test, they failed to apply a balancing exercise required by Article 8 ECHR.

The respondent attempted to argue that their balancing exercise was not reflective of an “exceptionality test”. The court disagreed with this stance. The court noted that the respondent’s decision specifically stated that “the Department’s policy on exhumations is that it is only in exceptional circumstances”.

If the focus of the policy is only on exceptional circumstances, the court argued, then the test of exceptionality is not the same as the application of a test of proportionality.

Further, the 2021 policy did not provide any details or examples of “exceptional circumstances” in the absence of agreement by a grave owner. At the very least, the respondent should have specified its reasons for giving more weight to the owner of the exclusive rights of burial than the nearest surviving relative.

Conclusion

For the reasons given above, the judge allowed the application for leave to apply for judicial review.

The court cautioned that at the full hearing, the parties will need to give some practical consideration to the actual effect of exhumation, if the Department consents to it. The question then will be whether a licence for exhumation granted by the Department overrides any property or other right in respect of (a) the grave owner and (b) the owner of the exclusive rights of burial.

The court will also hear arguments about any possible alternative remedies that the parties may have.