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EXHUMATION OF HUMAN REMAINS
1.
Introduction
1.1
In the absence of specific guidelines dealing with the exhumation of human remains in Scotland
the procedure set out below is generally adhered to throughout the country and is a
cumbersome, costly and time consuming process.
2.
Background
2.1
The current process operated in Scotland for the exhumation of human remains is normally for
the ‘next of kin’ to enquire with the cemetery administrator, in the first
instance, if it is feasible
for the exhumation to be carried out.
2.2.
The cemetery administrator will then obtain all the relevant details from the ‘next of kin’ i.e. Name
of deceased, Cemetery in which burial took place, lair owner etc. and would then be in a position
to advise the person accordingly.
2.3.
The procedure for obtaining an exhumation licence is as follows:
a) Next of kin’ makes contact with their solicitor to petition the Sheriff to grant a licence to exhume;
b) The solicitor then contacts the cemetery administrator to establish if the Deceased is in fact
buried in the cemetery, confirmation of whether it was the last burial in the lair, the section and
lair No. and confirmation of the owner of the exclusive rights of burial in that lair. If the
exhumation does not relate to the last interment then additional exhumation licences will be
required to legally disinter those buried above the deceased to whom the initial enquiry refers;
c) The solicitor will then request, from the cemetery administrator, a “Feasibility Certificate” stating
that the information in b) above is complete and correct.
d) The solicitor will then petition the Sheriff for a licence to exhume stating also where the deceased
is to be re-interred:
e) The Sheriff will then issue a Warrant to Disinter/Re-inter requiring the Cemetery Administrator to
report back “Quam Primum” following the exhumation and re-interment.
3.
There are three specific areas of exhumation that need to be addressed by future
legislation. These are:
a) Exhumation of human remains for legal, personal reasons or Re-use;
b) Exhumation of Baby Remains to allow further burial;
c) Exhumation of Cremated Remains
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4.
Exhumation of adults for legal, personal reasons or Re-use
4.1
Where the court determines that an exhumation is necessary for further investigation by
pathologists then there should be no requirement to alter the ‘status quo’ where a Sheriff or
higher authority requests the exhumation. This seems relatively straight forward but should
be clarified in any further legislation.
4.2
Where an exhumation is requested for purely personal reasons then a simpler system, from that
which is in use today, is required to cut through the ‘red tape’ with authority being given on
grounds e.g. where burial has been carried out in the wrong grave and the exhumation and reinterment would rectify this situation or where exhumation is requested to re-unite members of
the same family.
4.3
Any new legislation should allow all Burial Authorities to use a ‘Petition Template’ where the ‘next
of kin’s’ consent is given prior to an application being made direct to the Sheriff or Procurator
Fiscal from the Burial Authority or alternatively an Application Form, (Appendix ‘A’) similar to
that presently used by the Home Office in England and Wales could be adopted.
4.4
Legislation should also give guidance and examples where exhumation may or may not be
permitted. (This may be where a burial has been carried out in the wrong lair or for Re-use.
Where families move from one district to another should not necessarily be a reason for
granting an exhumation licence)
5.
Exhumation of Baby Remains to allow further burial;
5.1 For many the procedure within Scottish Burial Grounds was, when the first interment in a new
grave was a baby, the custom and practice was to inter the baby at a shallow depth normally
associated with the last interment (3’6”) rather than at the full depth normally associated with the
first interment (6’).
5.2
It is difficult to find specific written reasons as to why this practice evolved however the most
likely factors that influenced decisions would be the small size of the coffin compared to the large
size of a fully excavated grave.
5.3
The custom and practice used by the gravedigger for the next adult burial was to dig down to the
baby coffin, remove the coffin and place carefully to the side, then continue to dig the grave to the
full depth. Once at the full depth, the baby coffin was repositioned in the grave and covered with
soil to ensure no remains were visible when the family attended for the funeral the following day.
5.4
Many modern Cemetery Managers have felt uncomfortable with this inherited custom and
practice, which is no longer appropriate for today and which would seem to be contrary to legal
guidance indicating that remains must not be disturbed without lawful authority.
5.5
When a baby’s coffin is identified during the excavation of a grave for an adult burial there
is obviously a great deal of urgency required in order to obtain permission to exhume the
baby’s coffin to allow the adult burial to proceed.
5.6
Kyle and Carrick District Council and subsequently South Ayrshire Council have addressed this
issue by firstly stopping the practice of interring baby coffins at a shallow depth, secondly by
putting the repositioning practice within a proper legal context and finally by consulting with local
Funeral Directors.
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5.7
The Cemetery Service took the issues to the Councils Legal Service who subsequently
discussed them with the Court and were successful in negotiating a fast track petitioning system
with the Sheriff to facilitate a Warrant to Disinter and Re-inter baby coffins found during grave
preparations, thereby preventing delay to the funeral.
5.8
As it is the Councils historical custom and practice at fault rather than any fault of the family, the
legal costs are borne by the Council.
5.9
The attached sample paperwork (Appendices ‘B’ and ‘C’), submitted with the petition, has been
designed to ensure that the Sheriff has all relevant facts before him to allow him to properly
consider the request before he authorises the Warrant.
5.10
The Cemetery Administration acts as the link between the Funeral Director, the bereaved family,
Legal Services, the Court and the Cemetery Staff and provides the key role.
5.11
Having received notice of interment and upon checking the records it shows that the first
interment was a baby, possibly interred at a shallow depth, the Funeral Director must be
instructed to immediately revisit the family and have consent forms completed by the parent/next
of kin and the Lair Owner.
5.12
Legal Services are notified that a petition to the Court will be required. All Council Solicitors have
a Petition template on their PC to ensure that the matter can be expedited quickly.
513
The consent forms, along with a feasibility certificate and covering memo are delivered from the
Cemetery Office by courier to Legal Services who finalise the petition then hand deliver to the
Sheriff Clerk the same day.
5.14
Normally, if the petition reaches the Sheriff Clerk in the afternoon the Sheriff will review the case
at the end of Court business. Unless the Sheriff requires further clarification we receive telephone
confirmation that afternoon from Legal Services that the Sheriff has signed or not signed the
Warrant.
515
The Cemetery Staff are advised that the Warrant has been signed and that the remains may be
respectfully removed and repositioned within the grave at the full depth. A member of the
Cemetery Staff collects the Warrant from Legal and takes to the cemetery.
5.16
The Cemetery Office reports back to the Court indicating whether it was necessary to disturb
remains.
5.17
This ‘fast track’ procedure is effective because all parties are working in partnership with common
aims, to ensure that past custom and practice is acknowledged and dealt with appropriately, that
the baby remains are dealt with sensitively within a proper legal context, and that the distress
suffered by the recently bereaved is not compounded by a delay to arrangements.
5.18
An alternative course of action to the above would be to allow burial authorities to deepen
the grave and with the family’s consent, reposition the baby’s coffin at the new depth.
5.19
Again clarification needs to be given in legislation as to when an exhumation is not an
exhumation?
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6.
Exhumation of Cremated Remains
6.1
A similar situation as the problem where babies are interred at a shallow depth arises with the
interment of cremated remains in family lairs within cemeteries where the casket containing the
remains is interred at anything between 1 to 2 feet deep.
6.2
Here again Cemetery Managers experience a problem where cremated remains need to be
exhumed before a further burial can take place. The situation is that these cremated remains
should only be removed once an exhumation licence has been obtained as disturbance of human
remains is illegal!
6.3
The practice of selling lairs and memorials for a limited period of time is becoming more popular
and a similar situation exists with the need for the removal of cremated remains following the
expiry of the limited period of tenure. This practice will create an ever increasing problem for both
Burial and Cremation Authorities requiring authority to exhume remains from below ground
memorials.
6.5
It should be noted that there is no need to obtain an exhumation licence if the remains
have been placed in an above ground memorial.
6.6
Cemetery and Crematorium Managers require guidance on the legal standing of cremated
remains and this area requires to be addressed in any future legislation.
6.7
Once Cremation has been carried out then the disposal of the human remains is complete. Apart
from Section 17 (Disposal of Ashes) of the Cremation (Scotland) Regulations 1935 which states
”After the cremation of the remains of a deceased person the ashes shall be given to the
charge of the person who applied for the cremation if he so desires. If not, they shall be
retained by the Cremation Authority and disposed of in accordance with any arrangement
made with the said person and in the absence of any such arrangement they shall be
decently interred in a burial ground or in land adjoining the crematorium reserved for the
burial of ashes.” Section 8 of the Cremation (Scotland) Amendment Regulations 1967 permits
Cremation Authorities to scatter cremated remains in the absence of instructions, from the
applicant for cremation, as to their final disposal.
6.8
Apart from the above legislation there is nothing to regulate the final or temporary disposal of
these remains following their collection from the crematorium. It would appear that the
legislation is only interested in the applicant for cremation receiving the cremated remains
following cremation, if he or she so desires, thereafter the law appears to have no interest
or control in what happens to them once they have left the crematorium.
6.9
This would suggest there is little point in following the exhumation procedure applied to the
exhumation of a body when a request is received from the family for the cremated remains to be
removed to another location.
6.10
The system in use in Northern Ireland for the exhumation of cremated remains does not
require the authority of the courts or the Northern Ireland Office. Details of the scheme
operated by Belfast City Council are as follows.
6.11
All requests for an exhumation of cremated remains from a Memorial must be received in writing
from the owner or if deceased, from the next of kin. This letter is sent to the
Cemeteries/Crematorium Administration Office, City Hall. The letter must contain the name of the
deceased to be exhumed, the date of death and cremation, the date the cremated remains where
laid to rest at the memorial and the reason why the remains are to be exhumed.
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6.12
This application is then approved or denied by the Head of Service.
6.13
The applicant is contacted and informed that although approval has been given, the exhumation
may not be possible because the casket/urn has broken up and it is undignified to carry out a full
exhumation of the cremated remains.
Burial Grounds Regulations (Northern Ireland) 1992
Part III - Ancillary Provisions
Exhumation
12 - Subject to section 11(4) of the Coroners Act (Northern Ireland) 1959, a person
shall not cause or permit a body or the remains of a body, other than cremated
remains, to be removed from one place of burial to another or to be exhumed unless
that person (a) First obtains the written consent of the Department; and
(b) Carries out the removal or exhumation in accordance with Part III of Schedule 1.
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Appendix ‘A’
Application for a licence for the removal of buried human remains
(including cremated remains) in England & Wales
This form should be completed in black ink in block capitals (illegible responses may cause delay to your application). After
completing Part A of this form the applicant should send it to the authority controlling the place in which the remains are buried.
Enquiries about the completion of this form should be directed to the address given at the end of this form or telephone 020 7035
5530/5531. The Department does not charge for the issue of an exhumation licence.
PART A
1.
Full name of applicant:
Title: Miss/Mrs/Ms/Mr/Dr/Other (please state)
2.
Full address of applicant:
............................................................................................................................................................................
...............................................................................................Town/City ........................................................
Post Code.......................................Daytime telephone number .................................................................
3.
Address and person to which the licence should be sent (if different from above):
............................................................................................................................................................................
...............................................................................................Town/City ........................................................
Post Code.......................................Daytime telephone number .................................................................
4.
Full name of the deceased
5.
Date of death:
8.
How many children did the deceased have?
6.
Age at death:
7. Marital status (at time of death):
Married/single/divorced/widowed
9.
Is the spouse of the deceased still alive?
YES/NO
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10.
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Cause of death (as specified on death certificate where available):
You do not have to answer this question if the application is for the removal of cremated remains.
11.
a) Are you the nearest surviving relative of the deceased?
YES/NO
If yes, please state whether you are the deceased’s: spouse* or parent* or child* or sibling* (please delete as
applicable)
Where you are the child or sibling of the deceased, please also state how many brothers and sisters you have.
I have ……………………..brothers and sisters (please specify a number).
This form should normally be completed by the spouse, parent, child, or sibling of the deceased (in that order). If there
are other relatives with the same, or closer, degree of kinship as the applicant, their consent to this application must
be confirmed by countersigning the application overleaf.
11.
b) If you are not the nearest surviving relative of the deceased, please state who the nearest surviving relative is, and why you,
and not that person, are making the application.
12.
13.
What is the reason for removal?
Do you know of any person objecting to the proposal to remove the remains or likely to do so?
YES/NO
If yes, give details:
Continue on a separate sheet if necessary.
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14.
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Who is the owner of the grave? If it is not the applicant please give contact details (including address).
If the grave is owned by a person other than you, the written consent of the owner to the opening of the grave for the
purpose of the removal must be attached to this form (‘Owner’ for the purposes of this application form means the
person who has purchased or leased burial rights in relation to the plot).
15.
a) Are the remains cremated?
b) If the remains are cremated, have they been interred in a container (e.g. an urn)?
16.
YES/NO
YES/NO
What is the name and address of the place in which it is proposed to re-inter the remains or the crematorium at which the
remains are to be cremated?
Please attach a letter from the burial ground manager where it is planned to re-inter the remains allowing the
re-interment to take place (unless the re-interment is in the same ground). If you wish to cremate the remains,
please attach a letter from the Superintendent of the crematorium agreeing to carry out the cremation. If the
remains (other than cremated remains) are to be taken abroad please telephone the number given on this
form for advice.
17.
Is it proposed to re-inter the remains in ground consecrated in accordance with the rites of the Church
England?
YES/NO
of
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APPLICANTS DECLARATION
I apply for the Secretary of State’s licence for the removal of the remains of the deceased person named
above from the place in which they are at present interred. I hereby declare that the information I have
supplied within this application and accompanying documents is true to the best of my knowledge and belief.
I attach any and all document(s) or consent(s) required under questions 11 and 14. Where any information is
supplied about or from persons under the age of eighteen I have stated that person’s age.
Signature of applicant ................................................................................................ Date
.................................................
Signature/s of consent of other relatives (if required under questions 11 and 14)
Name ................................................................................... Relationship to deceased
.......................................................
Signature ............................................................................................................... Date
.........................................................
Name ................................................................................... Relationship to deceased
.......................................................
Signature ............................................................................................................... Date
.........................................................
Name ................................................................................... Relationship to deceased
.......................................................
Signature ............................................................................................................... Date
.........................................................
Continue on a separate sheet if necessary
Now send this application to the manager of the cemetery, crematorium or churchyard
where the deceased is presently interred to complete Part B
PART B
This part is for completion by the Burial Authority
1.
Name and full official address of the place of burial where the remains are interred (please include the plot
number if known):
………………………………………………………………………………………………………….
………………………………………………………………………………………………………….
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………………………………………………………………………………………………………….
………………………………………………………………………………………………………….
2.
Can the remains be removed without disturbing any other remains?
YES/NO
If the removal will necessitate the disturbance of the remains of any other person or persons a separate form must be
completed in respect of each set of remains, together with relevant consents from the nearest surviving relatives
(Disturbance includes any movement or contact with the remains or their container).
3.
Is the ground in which the remains are presently interred consecrated according to the rites of the Church of
England?
YES/NO
This question refers only to interments in England. Please note that if the answer to questions Part A Q.17 and Part B
Q.3 are YES then a Home Office licence is not required provided the remains are to be re-interred in a different grave
plot in ground consecrated according to the rites of the Church of England. In this case, the appropriate authority is a
Bishop’s Faculty.
4.
Is the date of death of the deceased between 1914 – 1947?
YES/NO
If the answer to this question is YES please send this form, once completed, to the Commonwealth War
Graves Commission for completion of Part C - 2 Marlow Road, Maidenhead, Berkshire SL6 7DX Tel: 01628
634221, who will forward the application to the Home Office.
5.
Please provide the name and address of the District Council Environmental Health Office in whose area
the remains are interred.
...............................................................................................................................................................................
......
……………………………………………………………………………………………………..
………………………………………………………………………………………………………..
PART B – DECLARATION
I hereby declare on behalf of the Authority controlling the burial ground to which the application relates that to the best
of my knowledge the information given by the applicant is correct. I have no reason to doubt the authenticity of any
accompanying document(s) of consent. I also declare that this authority has no objection to the grant of a licence and is
not aware of an objection by any other person (If you are unable to make this declaration please return the form to the
applicant stating your reasons).
Name of Officer of the Authority ...................................................................................................................................
Signature ............................................................................................................... Date
....................................................
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Name and Address of Authority……………………………………………………………………………..
.......................................................................................................................................................................................
.........
Post Code ......................................................... Telephone number
................................................................................
The completed form together with any accompanying document(s) of consent, should be sent by the burial
authority direct to The Department for Constitutional Affairs, Coroners Division, Ground Floor, Seacole
Building, 2 Marsham Street, London, SW1P 4DF, except where Part C needs to be completed by the
Commonwealth War Graves Commission. Enquiries about completion of the form should be directed to the
above address or telephone 020 7035 5530/5531. Faxed applications will not be accepted. The Home Office
will process applications within 20 working days of receipt, unless further information is required. Please note
that only original documents will be accepted, not photocopies.
PART C
This part is for completion by the Commonwealth War graves Commission
(where appropriate - see Part B Q.4)
1.
Is the grave in question a war grave?
2.
Does the Commission object to the disturbance?
YES/NO
YES/NO
3.
Authorised signature…………………….……………………………………………………………
for or on behalf of the Commonwealth War Graves Commission
Print name……………………………………………………………Date……………………………
Date of issue:
6/05
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GUIDANCE NOTE ON APPLICATIONS FOR THE REMOVAL OF HUMAN REMAINS
The current law relating to the removal of buried human remains is contained in Section 25 of the
Burial Act 1857 which states that:“Except in the cases where a body is removed from one consecrated place of burial to another by faculty
granted by the ordinary for that purpose, it shall not be lawful to remove any body, or the remains of any
body, which may have been interred in any place of burial, without licence under the hand of one of Her
Majesty's Principal Secretaries of State, and with such precautions as such Secretary of State may
prescribe as the condition of such licence.”
This means that any person who wishes to exhume buried remains has to apply to the Department for
Constitutional Affairs for a licence to permit it.
The Department for Constitutional Affairs is willing to consider any application made by relatives for
personal reasons.
The application form
The form is fairly straight-forward. We require details of the applicant, the deceased and place of burial.
The applicant should complete Part A and then send the form to the Burial Authority (the person in
charge of the burial ground where the deceased is buried) for completion of Part B. Part C only needs to
be completed in certain cases. If the death occurred between 1914 and 1947, and could be considered a
war grave, the form should be sent to the Commonwealth War Graves Commission, for their agreement.
In addition, if the remains are buried within consecrated ground then consent from the Church of
England will also be required.
Consecrated ground
Consecrated means a burial ground that has been consecrated in accordance with the rites of the
Church of England and not merely blessed by the vicar during the funeral service or consecrated by the
Roman Catholic church or the church in Wales. Your burial authority will be able to advise you whether
this is the case.
If the present burial plot is within consecrated ground you will be required to apply for a Faculty. If the
remains are to be reburied in a different burial plot within consecrated ground it is the view of the
Department for Constitutional Affairs that a Faculty is sufficient. A Department for Constitutional Affairs
licence is required if the remains are to be reburied in non consecrated ground. However, if the remains
are to reburied in the same burial plot, for example, to deepen the grave to allow for a further burial, then
a Department for Constitutional Affairs licence and a Faculty will be required.
The consents required
There are a number of factors which the Department for Constitutional Affairs considers before issuing a
licence to exhume human remains:-
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Grave Owner
The application must be made with the consent of the owner of the exclusive rights of burial relating to
the actual burial plot. This is because a Department for Constitutional Affairs licence is permissive only: it
does not require the remains to be removed, and the grave owner must therefore be prepared to grant
access. If the plot is a communal grave, which would mean that other remains would have to be
disturbed, then the permission of any surviving relatives would be required. It is the applicant’s
responsibility to obtain this permission.
Nearest Surviving Relative



The consents of all the nearest surviving relatives of the deceased are required. The priority given to
nearest surviving relative is in accordance with that used by the Administration of Estates 1925. This
means that if the spouse is alive, then this person is the nearest surviving relative. Thereafter it is
defined that the next nearest surviving relative is the deceased’s mother and father, and children, if
any. Thirdly, joint status would be given to the deceased’s brothers and sisters, grandparents and
grandchildren.
If contact has been lost with any of the surviving relatives it is the applicant’s responsibility to
undertake a search for that relative. Documentary evidence would be required to show that attempts
have been made to locate the missing relative, for example, a copy of an advertisement in a
newspaper circulated within the area of the relative’s last known whereabouts.
Applications will also be considered from more distant relatives.
Known Objections
It is the applicant’s responsibility, even if they are the nearest surviving relative, to state whether there
could be objections to the exhumation from other relatives, as it would be necessary to take their views
into account. However, this does not necessarily mean that a licence would be refused.
If the consent of the grave owner is not given, then it is unlikely that the Department for Constitutional
Affairs would issue a licence.
The Department for Constitutional Affairs is unable to become involved in any family dispute. It is for all
parties to resolve the issues before a licence will be considered.
Proposed Location of Remains
This information is only required if the remains are not cremated.
Issue 2
June 2005
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Development, Safety and Regulation
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APPENDIX ‘B’
Director:
: Head of Legal and Administration
Cemetery Office,
Tel:
Fax:
Our ref:
If telephoning or calling please ask for
The Sheriff Clerk’s Office,
Dear Sir,
FEASIBILITY CERTIFICATE
I, the undersigned, hereby confirm the feasibility of the disinterment and
subsequent repositioning within Lair No: _______
in, _______ Cemetery of the
remains of, __________ who was interred on, __________in order to inter the
body of, _____________
Yours faithfully,
Registration and Bereavement Services Manager
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APPENDIX ‘C’
The Sheriff Clerk’s Office,
Dear Sir,
Possible Disturbance of Baby Remains
I, ………………………………………………... (Lair Owner/Applicant)
of ……………………………………………………………………….……….…………… (Address)
have made application for the interment of the late………………………… who is my ………………..
in Lair No. ……..Section ……… in the ………………….Cemetery and, should the need arise, I
consent to [
] Council making application to the Sheriff Clerk for authority to disinter any
remains which may be found in the course of the preparation of the said Lair and to reposition
said remains appropriately within the same Lair in order to receive the intended coffin burial.
Signed:- ……………………………………………….
Dated:- …………………………………….