In UK courts and elsewhere, it is sometimes necessary to introduce an element of anonymity into the proceedings and their reporting, as in the consistory court judgment Re St. Margaret Ormesby [2024] ECC Nor 5 where, unusually, one of the petitioners expressed concerns on aspects of the judgment which might become known to the joint applicant. Additionally, the “medical harm” criterion of Re Blagdon was considered.

These issues are examined in detail below; a summary of the case has been published by the Environmental Law Association.

Re St. Margaret Ormesby [2024] ECC Nor 5

This anonymized judgment concerns the remains of a stillborn baby, ‘Baby A’, buried in the churchyard of St Margaret Ormesby over 10 years ago in the grave of his paternal grandfather [1]. Baby A’s mother, ‘B’, applied for permission to exhume Baby A’s remains and either cremate them or rebury them in the churchyard of St Michael Ormesby.

The ground relied upon under Re Blagdon Cemetery [2002] Fam 299 was the medical harm caused to B when visiting the grave, by way of psychological harm and distress including nightmares and flashbacks to extremely distressing incidents. This was evidenced by a letter from her GP, which Humphreys Ch. notes that she accepted the medical evidence as true and accurate: “[it] shows a clear link between that medical condition suffered by B and the location of the grave of Baby A and therefore is capable of providing grounds to make an exception to the presumption of permanence of Christian burial as set out in Re Blagdon Cemetery [2].

Baby A’s father, ‘C’, was a joint applicant for this petition, “despite the separation of B and C many years ago; B and C themselves describe their former relationship as respectively ‘abusive’ and ‘toxic’”. In those circumstances the former Chancellor directed that the Registry make contact with C to confirm he did indeed consent to this application. That was done and he has confirmed his consent, subject to knowing where Baby A is to be reburied [3].

B was unhappy that C would know where Baby A was to be reburied; however, Humphreys Ch. stated “not only does C have a right to know where his child is buried, the record of burials in a churchyard is public information. This is not information that can be kept secret from anyone”. Furthermore, the judgment is a public decision, that will be reported, hence the anonymisation of the parties involved. As a joint applicant C is entitled to a copy of it. As a joint applicant, C would be aware that St Michael’s Ormesby was the proposed location for the reburial of the remains of Baby A (if the request to cremate was not permitted) [4].

This application was made because C’s mother had recently died, and C and his brother wished to bury their mother’s remains in the grave presently containing the remains of their father and Baby A. They delayed doing so until this petition was resolved, so that, if approved, Baby’s A’s remains may be removed when the grave is opened in advance of the interment of the remains of C’s mother [5].

B asked for Baby A’s remains, once exhumed, to be cremated and a service of remembrance held. She did not indicate what she would plan to do with the cremated remains thereafter and the implication is that they would not be reburied anywhere but rather retained by B. In the alternative the petition asks for reburial at St Michael’s Churchyard [6].

The Chancellor stated:

[7] In my view the law does not permit these remains, that were buried in consecrated ground over 10 years ago, to now be cremated and then left unburied. Burial of human remains in consecrated grounds carries an intention of permanence. Exhumation is the exception. Generally, reburial of those remains in other consecrated ground is required so that permanence is also intended in the new location. Only rarely is exhumation permitted for reburial in un-consecrated ground. But reburial somewhere is almost always required. There is nothing in the circumstances of the case to suggest reburial is not appropriate. Here, that is suggested by B as one of two alternatives. It is also clear that that is the alternative not only preferred by C, but an implied condition of his consent to the exhumation on the basis of knowing where Baby A is reburied.

[8]. Consent of relevant parties is the other important factor in this case, under the test set out in Re Blagdon Cemetery. The consent of all relevant parties does not alone provide grounds to make an exhumation lawful – other substantive grounds must be proven. But if there are relevant parties that do not consent, that would be a reason to refuse the petition. Here B, C and Baby A’s other living relatives do consent. C’s consent, as set out above, is conditional upon knowing where Baby A is to be reburied. However, even if C had consented to the cremation, I would not have permitted it. Under the law as it presently stands, reburial in consecrated ground is required in the circumstances of this case.

The Chancellor granted this petition, which required Baby A’s remains to be reburied in St Michael’s Church Ormesby at the direction of the minister of that church. This formed part of the conditions of granting a petition for the exhumation, to which she added inter alia:

“[10] Nothing in this judgment prevents B (or C for that matter) holding a form of memorial service for Baby A, at the time of reburial or afterwards although a joint one for both sides of the family together is clearly not appropriate. If any such memorial service takes places at St Michael’s, it must be under the direction of the minister in the usual way.

[11].

[…]

(d). Any application for a memorial to Baby A to be erected over the grave of Baby A in St Michael’s Ormesby must either: (i). Be compliant with the relevant Churchyard regulations AND have the consent of both B and C; or (ii). Be subject to a faculty application to this court.”

Update: 1 October 2-24 at 06:53.