Can a person’s body been exhumed ? Without a License from the Secretary of State and/or in some circumstances approval approval of a proposal under the Care of Cathedrals Measure 2011 one cannot exhume. It is an offence for a body, or any human remains which have been interred in a place of burial to be removed unless one of the conditions listed in subsection (2) S25 Burial Act 1857 is complied with.
(2) The conditions referred to in subsection (1) are—
(a)the body or remains is or are removed in accordance with a faculty granted by the court;
(b)the body or remains is or are removed in accordance with the approval of a proposal under the Care of Cathedrals Measure 2011 (No. 1) by the Cathedrals Fabric Commission for England or a fabric advisory committee.
(c)unless the body or remains is or are interred in land which is subject to the jurisdiction of the court or its or their removal requires or require the approval of a proposal under the Care of Cathedrals Measure 2011, the body or remains is or are removed under a licence from the Secretary of State and in accordance with any conditions attached to the licence.
What is the Procedure for obtaining a Licence for Exhumation ? If the deceased is buried in a municipal cemetery or private land to exhume, you must obtain a licence from the Secretary of State to have the deceased exhumed and reburied. There is a long tradition of sanctity of graves.
The formal process for a Section 25 licence requires the submitting of an application to the Ministry of Justice. In this application one has to set out the reasons for the application as well as any objections and enclose any consents. The licence does not authorise the holder to enter onto land which the licence holder has no interest. This is very important where the applicant does not own the exclusive rights of the burial plot. It is important that consent is obtained from the owner of the exclusive rights of burial.
If the owner of the exclusive rights of burial refuses permission can the Secretary of State grant a licence to Exhume? The Secretary of State retains the discretionary power to grant an exhumation even in the absence of consent on the part of the owner of the exclusive rights of burial. However it is difficult to obtain a licence where their is opposition from the owner.
If you are refused an Exhumation licence can you appeal? There is no statutory right of appeal against refusal of a section 25 licence, Judicial review is the only option and the application for Judicial review should be made within 6 weeks of the decision to avoid limitation.
It is always preferable to avoid the necessity for Exhumation although we appreciate that this is not always possible.
Where a burial dispute is brewing one should take legal advice immediately to consider whether they have standing to challenge the burial and their prospects of success of obtaining what they want. If an applicants prospects are good or cannot be obtained but burial is immanent one would take advice about Injunctive relief to prevent burial until an agreement can be reached or an order of the Court obtained.
If you require advice about a burial dispute contact us today.