Over the past couple of years, infant cremation has been subject to various degrees of scrutiny: investigative journalism, a Channel 4 Dispatches programme on 24 March 2014; non-statutory inquiries by the Edinburgh City Council on its Mortonhall Crematorium, reporting April 2014, and by the Shropshire Council on the Emstrey Crematorium in Shrewsbury, reporting May 2015; and the Scottish Government’s Infant Cremation Commission, ICC, which issued its report in June 2014.

Section 1.3 of the ICC Report includes a concise statement that summarizes the Issues common to all of these investigations:

“Public concern about the current situation and the need for change was clearly expressed within a submission made by the parent of a baby who died shortly after having been born prematurely:

‘I feel that it is essential that national standards are established to inform the work of crematoria and that bereaved parents of the future are not left with any doubt about what has happened to the remains of their deceased children. If there are no remains then time should be taken to explain to parents why this might be the case. Parents also need to understand why apparently remains can be retrieved 100% of the time in some crematoria, but almost never in others. The current situation is not acceptable.’”

Whilst this use of “national” here relates to Scotland, many of the issues involved are common to the whole of the UK. The findings of Lord Bonomy’s Infant Cremation Commission together with those of the Scottish Government’s Burial and Cremation Review Group formed the basis of a consultation on various proposals for a new Bill relating to burial and cremation in Scotland. This closed on 24 April 2015 and responses  are currently under consideration: with regard to cremation, these include inter alia: the definition of “ashes”; an inspector of crematoria[1]; accreditation of cremation authority staff; cremation forms and procedures; and burial and cremation records.

Although some of the proposed legal changes are specific to Scots law, many are relevant to the whole of the UK. Professional guidance on the operation of the 251 crematoria in the United Kingdom including the 27 in Scotland is provided by two organizations:

• The Institute of Cemetery and Crematorium Management, ICCM: its primary function is to provide accredited education and training opportunities and best practice guidance to burial and cremation authorities. The ICCM has no powers of enforcement.
• The Federation of Burial and Cremation Authorities (FBCA)[2]:  Since 2003  the FBCA has operated a Technicians Training and Examination Scheme (TEST), which is a requirement of the environmental permit.

Inquiries in Scotland and England

The Shropshire Inquiry team, headed by solicitor David Jenkins, analysed infant cremations requests at the Emstrey crematorium in Shrewsbury: “infant cremations” was taken to mean cremations of foetuses of more than 24 weeks and infants of up to 12 months. This employed the public health statistical convention which employs the term “infant” for children of up to one year old. Foetuses of less than 24 weeks gestation were excluded from the investigation since these “are not subject to statutory regulation as to registration and cremation formalities.”

By contrast, the remit of the Infant Cremation Commission was less specific: “[w]hile the Commission is primarily concerned with the cremation of babies and infants, the terms “babies” and “infants” is not defined by the remit to avoid imposing any inappropriate restriction on the work of the Commission.” Consequently, the Joint Opinion of Counsel for the ICC and the Mortonhall Investigation considers three situation in relation to “cremated remains”/”ashes”, and these necessarily were more closely aligned to legal criteria:

• Neonatal infant: i.e. children born alive who dies early in life (“neonatal infant”).
• A still-born child: as defined in s56 Registration of Births, Deaths and Marriages (Scotland) Act 1965, i.e. “a child which has issued forth from its mother after the twenty-fourth week of pregnancy and which did not at any time after being completely expelled from its mother breathe or show any other signs of life”.
• A non-viable foetus aborted or miscarried at less than 24 weeks gestation.

For the latter, the Opinion stated: “[t]here is no specific provision in the legislation for foetal remains. If the pregnancy has not progressed to 24 weeks gestation, the provisions in the 1935 Regulations, including Regulation 17, have no application.” However, the ICC Report and the Consultation made recommendations including the cremated remains of this group, and included the definition of “ashes” suggested in the Opinion. This is now employed in the guidance of both professional bodies.

Two important legislative changes to the Scots law were proposed by the ICC with regard to cremation:

• there should be a statutory definition of “ashes”; and
• there should be statutory regulation of the cremation of babies of less than 24 weeks’ gestation.

In addition, the consultation raised the possibility of other procedural changes to the law in this area, on which we commented here. Although the Shropshire Inquiry was not required to focus on national issues, David Jenkins made seven recommendations to national government:

• that the Government takes steps to ensure a single and authoritative code of practice for baby and infant cremations, [5.16];
• that the Secretary of State exercise his powers under the Cremation Regulations to appoint an independent inspector with powers comparable to those outlined in recommendation 63 of the Bonomy report, [5.20], and
• that the inspector’s responsibilities shall include the promotion of a single national code of practice with regard to cremator technology and techniques for infant cremations so as to maximise the chances of the preservation of ashes that can be returned to the applicant for the cremation, [5.21];
• that the Cremation Regulations are amended in England, as in Scotland, to give effect to the Bonomy Commission’s definition of ashes, [5.22];
• that minimum standards of professional training, and for continuing professional development, be introduced for crematorium supervisory and operating staff, [5.23], and
• that a single official, reporting in this respect to a single minister, be given responsibility for coordinating the government’s approach to cremation law and practice and for drawing together into a coherent whole the policies, including environmental policies, of different government departments on the subject, [5.24];
• that arrangements be made within government for the Bonomy Commission’s recommendations to be considered more widely for their applicability for infant cremation law and practice, [5.25].

Apart from the adoption of the problematic definition of “ashes”, v infra, we are broadly supportive of these recommendations, but would stress the necessity of addressing the legislation on the cremation of foetal remains from less than 24 weeks gestation – a significant lacuna in the Shropshire’s “national” recommendations.

Definition of “ashes”

The Mortonhall investigation highlighted the different interpretations as to what constituted “ashes” that had been employed by the two professional bodies:

• The FBCA considered that ashes consist of cremulated [ground] bone, to the exclusion of any other source of ash obtained from the burned coffin, clothing, or soft toys cremated along with the baby.
• The ICCM considered ashes to include all ashes from the cremation, both cremulated bone, as well as ash from items which were mementos or part of the fabric of the baby’s last resting place.

The Shropshire investigations states, [section 3.15]:

• The Bonomy Commission recommended that “ashes” should be defined in legislation for these purposes as “all that is left in the cremator at the end of the cremation process and following the removal of any metal”. They further recommended that cremation authorities should review their practices immediately to ensure that, in dealing with the “ashes” following cremation, they proceed on the basis of this definition. Both the professional organisations I have referred to have now adopted this definition in their advice to their members.

This definition was endorsed in the Scottish Government consultation, although as we have noted previously, [and which David reiterated in his response to the consultation], it lacks the necessary precision and presents some problems in relation to the cremation of foetal remains.

Foetal remains

Practical issues

An understanding of the nature and operation of the cremation operation is essential when considering the definition of “ashes”, particularly in relation to foetuses of less than 24 gestation. The forensic anthropological evidence of Dr Julie Roberts to the Mortonhall/Bonomy inquiries indicates that depending upon gestational age, there are important differences between the cremation characteristics of non-viable foetuses and those of stillbirths, neonatal births and adults. Dr Roberts suggested:

“it seems highly unlikely that, even if a foetus was of a very young gestational age, there would be no cremated remains left if the coffin and personal effects were included in that definition,” [page 112].

The operation of the cremator is described by Dr Clive Chamberlain in his evidence to the Mortonhall inquiry, [page 26]:

“[f]rom a combustion viewpoint, there is turbulence created within the chamber in order to have combustion air flowing over the remains being burned. This turbulence will entrain the lightest solid particles and carry them out of the cremation chamber into the secondary combustion system. Nonetheless, the bones in an adult cremation retain enough shape and weight to remain in the cremation chamber to be raked out when the last traces of combustible material have been destroyed but those of an infant cremation may not.”

Consequently,  some of the lighter particles may be carried over to the secondary combustion system and the subsequent dust collection equipment, generally a bag filter. The Shrewsbury enquiry drew a similar conclusion, [section 4.39].

Taking these two issues together, for foetuses of less than 24 weeks gestation, “all that is left in the cremator at the end of the  cremation process and following the removal of any metals” can vary from zero (where combustion conditions are unfavourable) to a finite mixture of cremated foetal remains plus other material cremated along with the baby, the quantities of each being a function several factors.

Legal issues

Prior to 24 weeks gestation, foetal remains do not have legal personality, here and here, the corollary of which is that they are not subject to the provisions relating to cremation, i.e. the Cremation Act 1902 or Cremation (England and Wales) Regulations 2008 SI 2841 [3], but fall within those relating to incineration [4]. Furthermore, there is no statutory requirement to register the death of a non-viable foetus, although the Regulation contains specific provisions for the cremation of stillborn babies, which under common law must be buried or cremated [5].  An equivalent situation exists in Scotland. Guidance for practitioners is available which indicates the options available to hospitals and the operators of cemeteries and crematoria [6].

 Comment

Whilst infant cremation is a common feature of the events in both Scotland and England, the corpus of burial and cremation law in both countries is in need of urgent revision. The process is well underway in Scotland where the Burial and Cremation Review Group was established in 2005 by the then Minister for Health: “[t]o review the Cremation Acts of 1902 and 1952 (and the Cremation (Scotland) Regulations 1935, as amended) and the Burial Grounds (Scotland) Act 1855 as amended, and to make recommendations on how the legislation could be changed in order to better serve the needs of the people of Scotland.

By contrast, successive UK administrations have been sitting on their hands on the issue of the reuse of graves and other measures for alleviating pressure on burial grounds since it was flagged up in the report of the Environment, Transport and Regional Affairs Select Committee in 2001, [para. 127].

In a written reply on 5th March 2015 to a parliamentary question by Daniel Kawczynski (Con. Shrewsbury and Atcham) as to what plans the Secretary of State for Justice had to review burial and cremation law, Mr Simon Hughes, the then Minister of State for Justice, stated:

“The Ministry of Justice keeps in close touch with all key people and organisations in the burial and cremation industry to make sure that good practice is shared. The Government appreciates that burial and cremation law and practice are of particular concern to those affected by previous practices at Emstrey Crematorium in Shrewsbury. We have the greatest sympathy for the parents in these cases and await the report of the independent inquiry into infant cremations at Emstrey, commissioned by Shropshire County Council, which is due to be published in April 2015.

When the Department of Health implements its death certification reforms, the Ministry of Justice will also amend its cremation regulations to reflect the changes to cremation authorisation processes. Planning for these reforms will present an opportunity for consultation and to consider the recommendations both of the Shropshire inquiry and the 2014 Infant Cremation Commission in Scotland.”

The report of the Shropshire inquiry states [3.17]:

“Officials at the Ministry of Justice have told me [David Jenkins] that they have begun preliminary consultations on amending the 2008 Regulations to clarify the definition of “ashes” in England and Wales. They have also begun very preliminary consideration to giving effect to recommendation 13 of the Bonomy Commission, in England and Wales, that the cremation of non-viable babies should be the subject of legislative regulation. I was advised that any changes to the 2008 Regulations would be made at the same time as changes sponsored by the Department of Health to introduce the medical examiner system as recommended by Dame Janet Smith’s Shipman Inquiry.”

Dame Janet Smith’s Inquiry delivered its final report on 27 January 2005; so we won’t hold our breath on this one.

[1] On 12 March 2015, the Scottish Government had announced the appointment of Robert Swanson, QPM, as Scotland’s first Inspector of Crematoria.

[2] |Until 2008 known as the Federation of British Cremation Authorities.

[3] The latter contains specific requirements relating to “body parts” which “means material which consists of, or includes, human cells from a deceased person, whether or not separation from the body occurred before or after death; or a stillborn child, defined in paragraph 2(1) as “apply to any child born after the twenty-fourth week of pregnancy and which did not at any time after birth, breathe or show any other signs of life”.

[4] D N Pocklington, The Law of Waste Management, (2^nd Edn, Sweet & Maxwell, 2011), 567-9.

[5] HTA Code of Practice 5, paras 118 and 119, [reference [6]].

[6] Including: Code of Practice 5: Disposal of Human Tissue, Disposal following pregnancy loss, (Human Tissue Authority); Sensitive disposal for all fetal remains: Guidance for nurses and midwives, (Royal College of Nursing); and The Sensitive Disposal of Fetal Remains: Policy and Guidance for Burial and Cremation Authorities and Companies, Institute of Cemetery & Crematorium Management. Guidance of the HTA has statutory authority, having been approved by Parliament in July 2009 and brought into force via Directions 002/2009.  The other Codes of Practice referred to do not.