Mrs McGuigan's husband had been murdered in her presence in 2015. She wanted his remains to be exhumed and reinterred in the same grave as their daughter. Where the exclusive rights to burial have been purchased, a grave cannot be opened without the owner's permission; and Mr McGuigan's mother, the owner of the exclusive rights of burial in the plot in which he was buried, refused her consent, having previously refused her terminally ill granddaughter's request to be buried with her father. The Department for Communities refused to authorise the exhumation, citing its 2021 revised policy guidance on exhumations, and Mrs McGuigan challenged that policy, arguing that the refusal infringed Article 8 ECHR (respect for private and family life). It was also argued that the Department's reliance on the consent of the owner of the exclusive rights of burial before exhumation, save in exceptional circumstances, was inconsistent with the requirements of Article 8. The Department contended that it had carried out a proper balancing exercise and that the application was not ‘an exceptional case which would warrant overriding the private law rights of the grave owner’. In a preliminary hearing, Mrs McGuigan sought leave to seek judicial review of the Department's refusal of authorisation.
The court was of the view that exhumation decisions engaged Convention rights because they might legitimately raise issues under Article 8, ‘particularly regarding the determination of the resting place of the remains of a loved one’ – although any interference might be justified under Article 8(2) – and, although not applicable in the present case, an exhumation decision might also engage Article 9. Rooney J rejected the Department's contention that the balancing exercise had been what it claimed to be and not, in reality, an ‘exceptionality test’: ‘If the focus of the policy is only on exceptional circumstances, then the test of exceptionality is not the same as the application of a test of proportionality’. The 2021 policy did not specify what were ‘exceptional circumstances’ in the absence of agreement by a grave owner; and
‘the respondent should at least specify its reasons for applying more weight to the owner of the exclusive rights of burial than the nearest surviving relative. Furthermore, if the respondent intends to rely upon Article 8(2), it must specify each and every respect in which it is claimed that the interference was in accordance with the law, serves legitimate aims and is accordingly justified.’
Leave to seek judicial review was granted. [Frank Cranmer]
