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Following the exposé by BBC Scotland Investigates into the practices of crematoria across Scotland regarding the disposal of babies’ ashes, it has become clear that the baby ashes scandal is much more widespread than was initially thought. Although the practice of retaining babies’ ashes instead of returning them to their parents was first uncovered at Mortonhall Crematorium, the investigations carried out by Mark Daly and his team have shown that the problem is widespread across Scotland. There is a huge variation in the practices of crematoria regarding the returning of babies’ ashes, with some crematoria such as Seafield Crematorium in Edinburgh returning 100% of babies’ ashes to the families, and others such as Mortonhall having a policy of never returning the ashes of young babies. Hazlehead Crematorium in Aberdeen does not return the ashes of children up to the age of 18 months, a staggering and unlawful policy which is now undergoing an audit by the council.

The law in this area may be old, but the provisions are clear. The Cremation (Scotland) Regulations 1935 state that after a cremation the ashes shall be given to the person who applied for the cremation if they so desire. If not, the crematorium must inter or scatter the ashes but must give a fortnight’s notice to the family of the deceased before doing so. Under the Cremation Act 1902, any person breaching the Regulations is liable to be convicted of a criminal offence. There is little room for ambiguity in the provisions, despite the protestations of the crematoria.

It is also worth noting that the right of a family to dispose of a loved ones ashes in the manner they wish has been held by the European Court of Human Rights to engage the Article 8 right to a private and family life. The case law recognises that the funeral and burial or cremation is an intensely personal and integral part of the grieving process and that the importance of respecting this must be recognised by the state. In depriving the families of the right to choose how to dispose of their babies ashes – by burying them in a family graveyard, or scattering them in a location that is meaningful to the family – the crematoria are depriving them of the right to grieve in the manner of their choosing.

In a recent case the judge stated: “From as far back as we know anything of human history people have attached the greatest importance to marking the burial and maintaining the memory of those they may be taken to have loved or respected and to whom they were related. That someone has died does not mean that he is no longer regarded as part of the family”. The families of those who have lost the chance to bury or scatter their babies’ ashes would surely agree. 

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