DOMESTIC violence and coercive control were issues considered by the Consistory Court of the diocese of Exeter when a mother was granted her petition for a faculty to exhume and rebury in a different location the remains of her baby, since she was unable to visit the grave because she was afraid of the baby’s father and his family.
Owing to the underlying circumstances of the case and the need to protect the privacy of the parties, particularly the mother and her dead baby, the court did not provide any details that might identify them or the locations involved.
The baby, a girl, died shortly after birth in 2022, and is survived by a twin sister. The mother’s account was that the children were conceived within a highly abusive relationship and that she was assaulted by the father on several occasions during her pregnancy, with the result that her children were born prematurely at 23 weeks.
The baby was buried in the churchyard of the village where the couple were then living, and which was the home base of the father, his parents, and other members of his family.
Six months after the burial, the mother managed to free herself from the relationship and sought help from local domestic-abuse professionals and the police. She subsequently returned to live near to her own parents, in a village a considerable distance from the one where her baby is buried.
The father was prosecuted for offences arising from his abuse of the mother. He pleaded guilty at the Crown Court to intentional suffocation and coercive behaviour within an intimate relationship, and was sentenced to a total of two-and-a-half years’ imprisonment.
The mother suffers from symptoms of post-traumatic stress disorder and is very fearful of the father and his family. She does not want to revisit the scene of her abuse, and cannot contemplate going to the village where her baby is buried. She was, therefore, unable to visit the grave; she said that her “heart aches every day” because she was not near to the baby and could not visit the grave.
Her petition was for the baby’s remains to be exhumed from the churchyard where they are interred, and for them to be reinterred in the churchyard of the village where she now lives. The priests-in-charge of each of the two parishes gave consent for the move to take place.
The father is named on the baby’s birth certificate, and therefore had parental responsibility for her during her very short life. Although the mother did not wish the father to be given notice of her application, the diocesan Chancellor, the Rt Hon. Sir Andrew McFarlane, who is also the President of the Family Division of the High Court, said: “The petition could not proceed without notice being given to [the father] and . . . not to give notice would, in addition to denying him justice and fair process, simply store up difficulties if an exhumation were to take place.” In a letter from prison, the father refused to consent to the exhumation.
Ecclesiastical law proceeded on the basis of the general presumption of permanence which arises from the initial act of Christian burial, and disturbance of remains that have been buried in consecrated ground will be permitted only as an exception to that principle. The Court of Arches had contemplated that where there had been a genuine mistake made at the time of burial, that might be a sufficient exception to permitting exhumation.
The Chancellor said that, while there had been no “mistake” made in the choice of the baby’s burial site, the material before the court demonstrated that it was probable that the mother’s “ability to put forward a contrary proposal had been wholly suborned by [the father’s] coercive and controlling influence on her at that time to the extent that she will have lacked sufficient freedom or autonomy to do other than accept his choice”.
There was also “a pressing pastoral need”, the Chancellor said, for the mother and her surviving daughter to be able to visit the baby’s grave “on a regular basis, in circumstances where they may feel at peace and not in fear”, and it would “simply not be possible” for them to go to the village where the grave was located. That was so even during the current period of the father’s imprisonment because of his family’s presence there, and more generally because of the “highly negative feelings that returning to the village would generate” for the mother.
The Chancellor took account of the father’s views that the baby’s remains should not be disturbed. But those views could “only be afforded limited weight in the circumstances of this case”, the Chancellor said. The fact that the father’s relationship with the mother was highly abusive had been established beyond doubt by his guilty pleas, and by the substantial prison sentence that had been imposed even after awarding him a discount in length to reflect his guilty pleas.
The need for the mother to have continued protection from him was also established by the fact that he was subject to a restraining order preventing his visiting the mother’s home area, and that the Family Court had ordered that he should not have any contact with his other daughter, the surviving twin.
Taking all those matters into account, the Chancellor said that the circumstances were sufficient to establish an exception to the general principle against exhumation. If a genuine mistake might be regarded as exceptional, “it must surely be the case that a ‘choice’ of burial site made by a mother, whose ability to choose any site other than that dictated by her abuser in a long-term, violent, coercive, and controlling relationship must also be capable of being regarded as exceptional,” the Chancellor ruled.
The Chancellor also accepted the Archdeacon’s opinion that there were strong pastoral grounds for granting the application. That opinion was another way of acknowledging the exceptional nature of the case as providing justification for removing the baby’s remains from the village where they were interred, and allowing them to be reinterred in the churchyard of the village where the mother now lived.
