Arches Court of Canterbury: Dean, Collier and Wiggs Chs, September 2004
The facts are as set out in Re Locock deceased (2003) 7 Ecc LJ 237, Rochester Cons Ct. The judgment of the Court of Arches is now reported at [2005] 1 WLR 1011.
The appellant argued that the chancellor had erred in concluding that the appellant had failed to discharge the burden of proof resting upon him to prove on a balance of probabilities that there were special circumstances in his case justifying making an exception from the norm that Christian burial is final. The court adopted the approach in Re St Luke the Evangelist, Maidstone [1995] Fam 1 to draw any inferences of fact which might have been drawn by the chancellor and substitute its discretion if his discretion was based on an erroneous evaluation of the facts taken as a whole. The court adopted the reasoning of Re Hing Lo (McClean Ch, unreported) stating that consistory courts in each province should have regard to decisions of the appellate court, whether or not given in their province, and a later decision should prevail if it differs from an earlier decision irrespective of the province concerned.
The appellant relied on two reasons for the exhumation; (1) he and his family wished to have their belief that Princess Louise was the deceased's mother confirmed or disproved (2) confirmation that Princess Louise gave birth to a child at that time would be of interest in various areas of nineteenth century law. The court agreed with the appellant's submission's that there would be no problem in identifying the remains, that there would be a better than 50% chance of obtaining DNA but dismissed the appellant's submission that Article 8 was engaged or, if it was, that no breach could be established because of the remoteness of the relationship which the appellant sought to investigate. The court dismissed the appellant's submissions that the chancellor had not attached sufficient weight to the appellant's wishes to discover from whence they came. The court extensively reviewed the evidence lead by the appellant (which was in part different and more comprehensive than that lead before the chancellor) and dismissed it as speculative or improbable, and thus the court did not have to consider (2) above. The appeal was dismissed.
(2005) 8 Ecc LJ 232-233
