The petitioner sought to exhume the remains of her son, Owen, from the consecrated part of Hither Green Cemetery. Owen had died aged five and his parents were too grief-stricken to make the funeral arrangements. The funeral was a humanist service but Owen's remains were buried in the consecrated part of the cemetery. At the time of the funeral the parents had thought that burial in the local cemetery was the appropriate course of action. However, as time passed and after the petitioner moved house, so that the journey to the cemetery was much longer, she wished that Owen had been cremated so that she could keep his ashes at her home. The father supported her wishes. The petitioner's case was that she did not know that the plot where Owen was buried was in consecrated ground. She was not a Christian and did not share the Christian view that burial was permanent.

Having considered the case of Re Blagdon Cemetery [2002] Fam 299 and the norm that Christian burial is permanent, the chancellor took the view that the difference between a mistaken understanding about the nature of the burial ground which was operative at the time of the funeral and a change of mind at a later date about the place of burial was very slim. He noted that the grounds for exhumation should be exceptional but found that exceptional grounds existed based on the petitioner not knowing the nature of the ground at the time of burial, the stress that she was under at the time of the funeral and the continued stress that the burial was causing the petitioner.

Although exceptional grounds justifying exhumation existed, the chancellor also had to consider the issue of the appropriate disposal of the exhumed remains. He found that the petitioner did not share a belief in the permanence of Christian burial and that to insist on re-burial would impose that belief on her in contravention of her right to freedom of religion. Accordingly he granted the faculty to exhume the remains with a view to their cremation and retention at the parents’ home subject to the condition that they be treated with respect. [Catherine Shelley]