Sheriff Appeal Court grants permission for Monaco reburial of Edinburgh teen who died in 2002

About this case:

• Citation:
  [2025] SAC (Civ) 23
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal Aisha Anwar

The appellant, Mr G, sought a warrant to disinter the remains of his late daughter, referred to as “Emma”, and argued that the sheriff had failed to recognise his rights under Article 8(1) ECHR. Until the appellant’s action, the Scottish courts had yet to consider the impact of the jurisprudence of the European Court of Human Rights on the exhumation of human remains.

The appeal was heard by Sheriffs Principal Aisha Anwar KC and Sean Murphy KC, with Appeal Sheriff Joan Kerr.

R MacLeod, advocate, appeared for the appellant, with Clair, advocate appearing as amicus curiae in the absence of an opposing view.

No more than convenience

On 12 January 2002, Emma was laid to rest at Mortonhall Cemetary, Edinburgh, after taking her own life. Since her death, her grave was tended to by her family, including her parents and two siblings. In January 2019, Mr and Mrs G emigrated to Monaco and decided to relocate their family company to England. Both of Emma’s siblings were set to move to England as a result of the relocation, with the result that no family member would remain in close proximity to Emma’s grave in Edinburgh.

Mr G raised a summary application in Edinburgh Sheriff Court seeking warrant to allow her remains to be transported to Monaco for reburial at a plot purchased by the family for that purpose. The information disclosed to the sheriff indicated that only skeletal remains would be present in the grave, leading him to conclude that not all processes of disintegration were complete. He refused the application on the basis that the cause said to justify it was no more than the convenience it would afford to Mr and Mrs G, rather than circumstances of high expediency or necessity.

In addition to the ground of appeal founding on Article 8 ECHR, the appellant argued that the sheriff had taken account of an irrelevant factor in making his decision, namely his concern that allowing the application would set a precedent. The correct test was to apply Article 8, and his decision would not have bound any other court. Further, he had erred in failing to take account of cases in which expatriation of remains had been approved.

The amicus curiae submitted that it was open to the court to hold that, in the circumstances, the sheriff’s reasoning accorded with his duty to weight the public interest in ensuring the sanctity of graves. the court also accepted that, in reality, the basis for the application did amount in substance to a “matter of convenience”, then the court may consider the sheriff’s decision to have been a proportionate interference with the appellant’s Article 8 right.

Period of reflection

Delivering the opinion of the court, Sheriff Principal Anwar, having determined that the application was competent, said of the merits of the appeal: “The sheriff was not referred to Article 8 of the ECHR, nor to the decisions of the ECtHR in Dödsbo v Sweden (2007) or Drašković v Montenegro (2020). Nevertheless, the court, as a public authority, was required to act in a manner which was compatible with the appellant’s Article 8 rights.”

She continued. “A decision to refuse [an exhumation] application will inevitably involve interference with any such applicant’s right to private and family life. The sheriff required to have regard to the appellant’s Article 8 rights and to the need to ensure that any interference with those rights was proportionate and necessary. He erred in law in failing to do so.”

Taking the opportunity to consider the Scots law on exhumation, the Sheriff Principal said: “The Scottish Parliament enacted the Burial and Cremation (Scotland) Act 2016 to restate and amend the law relating to burial and cremation in Scotland. Section 27 of the 2016 Act regulates exhumation; however, the Scottish Ministers have yet to issue regulations under that section. Until they do so, the common law continues to regulate the right to exhumation of human remains.”

She added: “In our judgment, references to ‘weighty cause’, or ‘compelling reasons’ or ‘sufficient cause’ do not change the character of the test to be applied by the court: they are different means of expressing the same underlying principle, namely that the starting point is that the status quo should be maintained and such applications will not be lightly granted. The questions for the court are: (i) has cause been shown; and (ii) if so, should the court exercise its discretion to grant the application? It is neither desirable nor possible to identify what might amount to cause shown in any particular case. Every case will turn on its own facts and circumstances.”

Sheriff Principal Anwar concluded: “The appellant and his wife intend to reside permanently in Monaco and upon their deaths, they wish to be buried in the same cemetery in Monaco. They have purchased a burial plot for Emma’s remains to be reinterred in Monaco. It is a decision which they appear to have reached after a period of reflection over 5 and a half years; convenience might have dictated an earlier application. 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 Appeal Court therefore allowed the appeal, recalled the interlocutor of the sheriff, and granted the principal craves of the application.