The Department believes that it is right and proper to continue to protect buried human remains from unauthorised disturbance and, that where consent has been given for exhumation, the remains are treated at all times with dignity and respect.
The Department will consider all exhumation applications and will make a decision to consent or refuse based on the information provided in each case. In considering an application for exhumation, it is the Department’s general policy to give consent provided that:
- the owner of the Rights of Burial and the nearest surviving relative of the deceased give consent;
- there are no known legitimate objections e.g. in relation to public decency or public health; and
- the relevant district council has signed the Declaration at Part B of the application form.
In circumstances where the council does not sign the Declaration, the Department will consider the council’s reasons for refusal.
As indicated above, if the owner of the exclusive Rights of Burial relating to the grave objects to the application, the Department for Communities would not normally give consent for exhumation. . This is because such consent is permissive only and does not override the civil rights of the owner of the exclusive Rights of Burial.
If the remains are buried in a public or common grave, it could be that unrelated remains may also be buried there and, if so, they may have to be disturbed. In such circumstances, it is the responsibility of the applicant to obtain the permission of the nearest surviving relative(s) of those deceased.
The consent of the nearest surviving relative is required. Priority is given in accordance with that set out in the Administration of Estates Act (Northern Ireland) 1955 (chapter 24) as amended by the Civil Partnerships Act 2004 (which provides civil partners with equal rights to spouses). This means that if the spouse or civil partner of the deceased is alive, then that person is the immediate nearest surviving relative. Thereafter, the nearest surviving relative hierarchy is the deceased’s:
- children (or grandchildren if there are no surviving children); followed by
- brothers and sisters;
- grandparents; and
- uncles and aunts or the children thereof.
Common law or cohabiting partners are not regarded as the nearest surviving relative of the deceased for the purpose of exhumation consents.
Following divorce in the case of former married couples or if a civil partnership has been dissolved, each individual has no jurisdiction on the remains of their former partners. However, they would still be regarded as nearest surviving relative for the purposes of exhumation consents for any children that they may have had.
If contact has been lost with the nearest surviving relative, the nearest surviving relative with the same degree of closeness, or with the owner of the exclusive Rights of Burial, the Department will expect the applicant to undertake the appropriate enquiries. Documentary evidence will be required to show that attempts have been made to locate the missing person.
Where there is an objection from one relative with the same degree of closeness as another who has given consent, the Department must exercise its power to consent with due care so as not to intervene in what is a family dispute. If agreement between family members cannot be obtained the normal course for the Department would be to refuse the application.
Application for exhumation
Application Forms are available from council offices or from Local Government & Housing Regulation Division. The application form contains Notes on completing the form and is divided into two parts, Part A (to be completed by the applicant) and Part B (to be completed by the Council).
Part A is to be completed and signed by the applicant. It requires details of the applicant, the deceased, the place of burial, the exclusive rights of burial and the reason for the exhumation/removal.
Part B is to be completed by the district council in whose area the exhumation is proposed. In order to comply with the Burial Grounds (NI) Regulations 1992 Schedule 1 Part 3 the exhumation must be carried out “with due care and attention to decency under the supervision of an environmental health officer appointed by the council and in accordance with such conditions as he may, after consultation with the Director of Public Health, impose with respect to matters affecting or likely to affect the public health.”
It will be the responsibility of the council to ensure that an Environmental Health Officer has contacted the Director of Public Health and that any conditions required in relation to public health are notified to the Department in writing. The Department will consider these conditions before refusing or consenting to the application.
Should the council have any objections to the exhumation, other than in relation to public health, the application form will be returned unsigned together with a letter setting out the reasons for the opposition to consent. The Department will consider the council’s reasons for opposition and will not make a decision on the application without first consulting with the council.
The Police Service of Northern Ireland sub-divisional commander of the subdivision in which the burial ground is situated shall be notified of the date and time of the exhumation by the person who applied for the written consent of the Department.
In the event that an application for exhumation is being made from a burial ground not owned by the council then the applicant must apply to the Environmental Health Section within their own council area. The council will liaise with the relevant authorities before deciding on the outcome of the application. The Department has no role to play in granting approval of exhumations from non-council or otherwise owned burial grounds.