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Court allows exhumation of atheists’ baby’s remains

15 November 2019

Parents wanted to move them to an unconsecrated area


THERE was a fundamental mistake of fact which justified exhumation from consecrated ground, when parents who were atheists were unaware that their baby son’s cremated remains had been interred in consecrated ground, and that a plot in an adjacent unconsecrated area was available in the same cemetery.

The Deputy Chancellor of St Albans diocese, Mr John Gallagher, granted the petition of Karen Twilley and her husband Robin Twilley (“the parents”) to exhume the remains of their son, Ted Twilley, who died on 14 January 2004, aged two days. Ted was their second child, and he suffered a brain haemorrhage. Two days later, his parents had to make what his mother described as “the heartbreaking decision to turn off his life-support machine”, and he died in her arms.

Ted’s body was taken to Birmingham Hospital for an autopsy. Thereafter the body was returned to his parents and cremated on 2 February 2004. On 3 June 2004, his cremated remains were interred in consecrated ground in Cheshunt cemetery.

Neither of the parents had previous experience of arranging a funeral, and they were unaware of the options open to them. For the funeral arrangements they instructed the Enfield branch of Co-op Funeral Care, whom they found very helpful. A priest from Chase Farm Hospital, the Revd Tom Baron (“Father Tom”), who was experienced in dealing with the funerals of young children and babies, was recommended to them. They were not told that they could have a non-religious funeral conducted by a non-religious person, such as a humanist.

The parents had no complaint about Father Tom. He visited them at their home, and discussed with them their wants for the funeral. They explained that they did not want any hymns or prayers as they did not have religious beliefs, and gave him a poem to recite and some words to say. Father Tom complied.

Before the interment, the parents visited the manager of Cheshunt Cemetery to make appropriate arrangements and to select a plot. They were shown a row of small plots and told that the area was for the burial of small children and babies. They were not told that the land was consecrated, nor that there was unconsecrated land opposite and a plot in which Ted’s ashes could have been interred.

The parents said that they were happy with the location they were shown “because it was near other small children”, but neither the manager nor anyone else explained to them “that this side of the cemetery was consecrated and the other side was unconsecrated”. They were not given a choice of another plot, and were only shown one. They said that, since they were both atheists, they would have refused the plot if it had been “explained that it was consecrated ground and what consecrated meant”.

The Deputy Chancellor decided that “from the outset there was a fundamental mistake of fact on the part of the [parents] as to the nature of the plot in which they agreed to have the ashes of Ted interred”.

In answer to the question why she wanted the exhumation, Mrs Twilley said that, after her death, she wanted to be buried, or have her ashes interred, next to her son, and, not being a religious person, she wanted that to be in unconsecrated ground. When asked why, if she had no religious beliefs, it should matter where she was interred, she said, “It’s hypocritical going into the ground where you don’t have that religion.”

She was further asked why she wanted to be interred next to her son if she had no religious belief. She said that Ted was “on his own. As his mum, I should be buried with him. . . My other children will go off and have families of their own. . . I don’t want him being on his own.”

The Deputy Chancellor said that he was “left in no doubt that she was genuine in her sentiments”. The parents had married in a civil non-religious ceremony, and neither of their surviving children had been baptised or gone to a school with any particular religious affiliation.

A mistake had occurred in the parents’ not being told, and not realising, that they could have had a non-religious funeral for their son. That was further compounded by their not being told that there were consecrated and unconsecrated areas adjoining each other in the cemetery, and what the differences between them were. That meant that they could not and did not make an informed decision about where they wished Ted’s ashes to be interred.

The mistake was operative on the minds of both parents, and, had they known of the alternatives, they would never have agreed to the internment in this plot.

There is a presumption that the burial of human remains in consecrated ground is permanent. The presumption arises from the Christian theological tradition that burial or interment of cremated remains is the act of committing mortal remains into the hands of God as represented by his Church. Thus, the court could only depart from the principle of permanence if the parents could establish, on a balance of probabilities, special circumstances which allowed an exception to that principle.

In the very particular circumstances of the parents’ petition, the Deputy Chancellor was satisfied that he could take an exceptional course and exercise his discretion to authorise the exhumation of Ted’s remains.

The faculty was granted on the conditions (1) that the exhumation be effected with due care and attention to decency, early in the morning, with the plot screened from public view; (2) that the parents give a written undertaking that reinterment would take place forthwith in unconsecrated ground in the same cemetery; and (3) that the parents pay the Registry and court costs incidental to their petition.

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