Held, faculty granted. (1) In providing context for what could constitute exceptional circumstances, the Court of Arches had identified that a change of mind as to the place of burial should not be treated as an acceptable ground for authorising exhumation. However, exhumation might be justified on the ground of operative mistake where a person did not know that the ground in which the remains had been interred was consecrated and, had he or she known, either they would not have organised the burial in the consecrated ground or, while having no objection to the remains being interred in consecrated ground, they would not have organised the interment in consecrated ground had they known the legal effects of such interment (ie as to the permanence of Christian burial being the norm. It was a short step from permitting exhumation in those circumstances to permitting it in circumstances more generally where a person did not know that the land was consecrated (or did not appreciate the legal effects of consecration), had changed their mind about the appropriateness of the initial decision and now wanted to deal differently with the remains (paras 15, 17, 18, 20).

(2) Although the Court of Arches had discounted the application of the Human Rights Act 1998 to exhumation cases it did not go so far as to say that the rights of a petitioner were not engaged when considering exhumation. There was no doubt that the law as applied by the consistory courts, which was restrictive of exhumation but allowed for appropriate exceptions, was generally in conformity with the Convention for the Protection of Human Rights and Fundamental Freedoms. That, however, did not dispense a judge in any particular case from considering the application of the Convention to the facts before him. Where the effect of refusing permission for exhumation in circumstances where the petitioner did not know that the land was consecrated and the refusal of permission would be to prevent the manifestation of belief, a court might hold that articles 8 and 9 of the Convention would be infringed; and it would be difficult to distinguish the position in a case where, as here, only article 8 was in play (paras 21, 23).

(3) It was not necessarily the case that in every application for exhumation where the basic facts were that the petitioner did not know that the land was consecrated (or did not know the legal effects of consecration) the court would hold that exceptional circumstances existed or that to refuse permission for exhumation would involve breach of article 8. Although at root this was a “change of mind” case, which sounded against the identification of exceptional circumstances, it was relevant that the petitioner had agreed to the burial arrangements at a time of great personal grief and stress, that the current arrangements were productive of stress, leading to loss of sleep, and that the circumstances of the child’s early death were very sad. Therefore exceptional circumstances justifying the exhumation of the remains existed and a faculty for exhumation would be granted (para 25).