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Re London Road Cemetery, Mitcham

Southwark Consistory Court: Petchey Ch, 15 July 2016 [2016] ECC Swk 12 Exhumation – DNA testing – comity between courts

Published online by Cambridge University Press:  20 December 2016

Ruth Arlow
Ruth Arlow*
Affiliation:
Chancellor of the Dioceses of Norwich and Salisbury
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Information

Type
Case Notes
Information
Ecclesiastical Law Journal , Volume 19 , Issue 1 , January 2017 , pp. 127 - 128
Copyright
Copyright © Ecclesiastical Law Society 2016 

After his death, the deceased was awarded €80,000 from an Irish state-funded compensation scheme for abuse suffered as a child in St Mura's Orphanage, Fahan. The award was secured by a direction of the High Court in Dublin and, upon investigation, two women came forward alleging that they were daughters of the deceased. The Irish High Court directed that the costs of exhuming the deceased's remains from London Road Cemetery for DNA testing to establish the deceased's paternity be met. The daughters and the solicitor representing the deceased in the compensation application petitioned the consistory court for a faculty permitting the exhumation of the deceased's remains for these purposes. The deceased's siblings, who were his personal representatives, objected to the petition and challenged the right of the solicitor to bring the petition.

The chancellor indicated that the right of the solicitor to act for the deceased in relation to the pursuit of his compensation claim had been accepted by the Irish High Court; in any event, the petition was also brought by the daughters. Argument about the locus standi of the solicitor was therefore unnecessary and fell outside the aim of the overriding objective. The siblings argued that the court had insufficient evidence that the daughters had a credible claim that the deceased was their father and as such the petition should be dismissed. The chancellor reviewed the orders of the Irish High Court and concluded that comity between courts required him to accord those orders a high degree of respect and to assume that they were made on a proper basis. In giving a direction in relation to DNA testing the Irish High Court had clearly deemed such testing to be appropriate. The court should not grant a faculty for exhumation without a proper factual basis, but that did not mean that the court had to be satisfied that the daughters were in fact the daughters of the deceased.

In this case, the basic undisputed facts were sufficient grounds for granting a faculty. Although matters of inheritance might amount to special reasons sufficient to justify a departure from the norm of permanence of burial, in this case the natural desire of the daughters to know whether the deceased was their father would have been sufficient to justify the exhumation. Further, the Irish courts’ decision about the distribution of the compensation would otherwise have to be made on an unsatisfactory basis. The faculty was granted. [RA]