JUDGMENT SUMMARIES

The appellant, Mr G, seeks to move the remains of his daughter, Emma[1], from Edinburgh to Monaco, where he and Emma’s mother now live.

Mr G applied to Edinburgh Sheriff Court for a warrant to allow his daughter’s remains to be disinterred, however the application was refused on the grounds that there was insufficient cause for disinterring them.

Mr G appealed this decision in the Sheriff Appeal Court.

Sheriff Principal Aisha Anwar KC, sitting with Sheriff Principal Murphy KC and Appeal Sheriff Kerr, has now allowed the appeal and granted a warrant for Emma’s remains to be disinterred and transferred to Monaco.

Background

Emma G was the daughter of Mr and Mrs G.

In late 2001, at a house party, a group of teenage boys took and shared compromising photographs of Emma, then aged 16. In the aftermath, Emma tragically committed suicide on 7 January 2002.

She was laid to rest by her parents and family at Mortonhall Cemetery, Edinburgh, on 12 January 2002.

In January 2019, Mr and Mrs G emigrated to Monaco. They regularly returned to Edinburgh to visit their other children and tend to Emma’s grave. However, their children are now also leaving Edinburgh and they wish to disinter Emma’s remains so that they can be transported to Monaco for reburial.

A sheriff at Edinburgh initially refused their application to do so, resulting in this appeal.

Appeal

Mr G appealed the decision on three grounds:

• That the sheriff failed to recognise and give effect to his rights under the Article 8(1) of the European Convention on Human Rights
• That the sheriff was mistakenly concerned that allowing the application would set a precedent
• That the sheriff failed to take account of cases in which expatriation of remains had been approved
  

Decision

In the court’s decision,  Sheriff Principal Anwar KC set out the correct approach to applications to disinter human remains.  The court required “to recognise the reverence with which society expects human remains to be treated; human remains are sacred wherever they are interred and they are protected against disturbance”.   

The court also required to consider whether any interference with Mr G’s right to family life under Article 8 of the European Convention of Human Rights was proportionate and necessary.   The court upheld Mr G’s first ground of appeal, finding that the decision not to grant the warrant amounted to a breach of his human rights.

The written appeal judgment states: “We are satisfied that this court should exercise its discretion to grant warrant authorising the disinterment and reinterment of Emma’s remains.

“To refuse to do so would constitute an interference with [Mr G’s] Article 8 rights which is neither proportionate nor necessary; in the circumstances… the appellant’s interests require to be afforded more weight than the public interest in preserving the sanctity of the grave.”

Having considered the circumstances of Mr G’s application, the Sheriff Principal concluded: “The court can have some confidence that the appellant seeks a final resting place for Emma in Monaco with her parents and that the application is not presented as little more than an attempt to disturb sacred human remains to suit the needs of an increasingly mobile society.”

The Sheriff Principal also upheld Mr G’s second ground of appeal, but rejected the third.

Emma’s remains can now be moved to Monaco, allowing her parents to visit and tend to her grave.

The full opinion setting out the facts of the case is published on the  Scottish Courts and Tribunals Service website and is the only authoritative document.