Section 7 - Ashes
7.1 From an early stage in the work of the Commission it was clear that many members of the public find the widespread acceptance of the possibility, and in some cases the likelihood, that no ashes would remain following the cremation of a baby or infant difficult to understand. Part of the explanation lies in the absence of a uniform understanding as to what is comprised in "ashes". Regulation 17 of the 1935 Regulations provides as follows:
"After the cremation of the remains of a deceased person the ashes shall be given into the charge of the person who applied for the cremation if he so desires. If not they shall be retained by the Cremation Authority and disposed of in accordance with any arrangement made with the said person and in the absence of any such arrangement they shall be decently interred in a burial ground or in land adjoining the crematorium reserved for the burial of ashes or shall be scattered thereon…"
For some crematoria staff, however, the more accurate expression for what should be given into the charge of the applicant is "cremated remains". Both expressions are used in Guidance issued by the two main crematoria representative organisations.
7.2 In their most recent Guidance, formulated with the assistance of the Stillbirth and Neonatal Death charity (SANDS) and published in June 2011, the ICCM gives this advice to bereaved parents when considering cremation as an option for their baby:
"If you choose cremation you should be informed that there might not be any ashes resulting from the cremation (whether this be a shared / collective or private cremation). If you choose a shared cremation then this information should have been relayed to you by … the hospital or by your Funeral Director if you are arranging a private cremation."
Parents are also advised that, where ashes are recovered in a shared cremation, they will be scattered or buried by the crematorium. The same document also provides guidance for hospital authorities and deals with, amongst other matters, the appropriate terms for an agreement between a Cremation Authority and hospital about cremation of non-viable baby remains. Among the terms proposed for inclusion in any such agreement is the following:
"The hospital must inform parent(s) that ashes may not be recovered from cremation."
It should be noted that there are also circumstances where the ICCM makes reference to "cremated remains", for example in the self‑assessment questionnaire for crematoria. In the MIR the chief executive of the ICCM is quoted as follows:
"Whilst both terms are in common use and users might have a preference, the Institute considers that they are one and the same thing. The definition which the ICCM ascribes to both terms 'ashes' and 'cremated remains' is 'anything that is left over after the last flame has ceased' in the cremator."
7.3 In Guidance issued by the FBCA, the emphasis is different in that they refer to "cremated remains" or "tangible remains" rather than "ashes". The Commission note and welcome the clarification received from the FBCA Secretary, a member of this Commission, that "in the context of cremation, ashes are the total recoverable remains following the cremation of a human body and its coffin or container" . In the FBCA Guide to Cremation and Crematoria, published in 2006, the term "cremated remains" is defined as "the skeletal remains recovered following cremation". The FBCA's definition of "ashes" therefore seems to encompass and include what they regard as included within the definition of the term "cremated remains".
7.4 The FBCA Code of Cremation Practice for their members, published in 2005 states:
"Once a coffin with its contents has been placed in the cremator, it shall not be touched or interfered with until the process of cremation is completed. On completion the whole of the cremated remains shall be collected and shall be disposed of in accordance with the instruction received."
It is not clear whether "the whole of the cremated remains" equates to "ashes".
7.5 A further expression is introduced by the FBCA's Instructions for Funeral Directors, revised in 2013, which includes this guidance:
"In cases where bereaved parents desire the cremation of an infant or of fetal remains, they should be warned that there are occasions when no tangible remains are left after the cremation process has been completed. This is due to the cartilaginous nature of the bone structure. If the warning is not given the parents may have been denied the choice of earth burial and thereby subjected to understandable distress."
The guidance is repeated in the NAFD Manual of Funeral Directors, 2013 edition. Again, there appears to be some lack of clarity as to whether "tangible remains" equates to "cremated remains" or to "total recoverable remains" ie "ashes".
7.6 During the course of the Commission's work, the FBCA additionally advised the Commission that:
"the FBCA would expect its members to treat any recovered remains with respect and dispose of them in accordance with the instructions of the person or entity arranging the cremation."
The use of yet another term "any recovered remains" tends to confuse rather than clarify what "ashes" are.
7.7 Aside from these ambiguities of definition, however, the overall wording of these FBCA Guidance extracts displays a commendable emphasis on transparency and openness.
7.8 The Commission consider that one factor giving rise to the variations in the recovery of ashes from crematorium to crematorium, noted earlier is a difference in the understanding of what exactly "the ashes" that "shall be given into the charge of the applicant" are, in particular whether they are all that is left in the cremator at the end of the cremation process or whether they are the bone or skeletal remains, if any. Other factors may contribute to the variation in the recovery of ashes, including concern for the safety of cremation technicians who operate the cremators. This concern has led to the refusal by some Cremation Authorities to adopt the technique of placing the baby coffin on a tray to enable ashes to be retained and recovered, by preventing them from being dispersed by turbulence within the cremator caused by the burner and injection of air.
7.9 Submissions made to the Commission and other enquiries made by the Commission indicate that there is a widespread perception among the public that "ashes" are whatever is left in the cremator at the conclusion of the cremation process and that, if that is not the perception among crematoria staff, then it should be. On the other hand, it was clear at meetings and discussions with representatives and staff of Cremation Authorities and with Funeral Directors that the understanding of many is that "ashes" are what remains of the cremated baby, and hence the emphasis on "cremated remains" or "tangible remains". That, combined with an understanding that the bones are not sufficiently developed to produce remains, led crematoria to convey to Funeral Directors, clergy and healthcare staff that there would not be, or were unlikely to be, ashes following the cremation of a baby. The extent to which that information was accepted without question by healthcare staff, as illustrated in the MIR, is surprising.
7.10 In the case of adult cremations it is not suggested that cremation technicians try, or should try, to separate what appear to be the remains of the cremated body from other ash such as coffin ash, and from the remains of extraneous material such as clothing or favourite items placed within the coffin. They rake down, cremulate and hand over for dispersal or interment all that remains in the cremator at the end of the cremation process. The submissions of affected families, supported by others, are that the same course of action should be followed where there are no obvious bone remains, since it is impossible to tell to what extent any remaining ash is residue of the baby rather than the coffin and any contents. It is their view that the whole material remaining in the cremator should be given into the charge of the applicant or disposed of according to the applicant's instructions whether or not there are any bone remains.
What Remains in the Cremator
7.11 In the first half of 2013 Glasgow City Council carried out an internal audit of their records of cremations undertaken at the Council's crematoria at Linn and Daldowie over the preceding 15 years in relation to each of 3 categories, namely non‑viable babies, stillborn babies, and infants up to the age of 24 months. That audit sought to establish, among other things, the outcome of the cremation as recorded on the cremation card (a card that accompanies the coffin from the moment it is received by staff at the crematoria). The findings were that remains were recovered from less than 5% of non‑viable babies out of 1839 cases. In the case of stillborn babies remains were recovered in 80.7% of cases and in infants up to 2 years in 72.8% of cases. The full internal audit can be found at Annex I. The report makes the point that the distinction between stillborn babies and infants is blurred because a birth after 24 weeks will be classified as an infant as long as the baby survives for even a short period, whereas a stillborn baby could be delivered after the normal 39 week gestation period has elapsed with a bone structure more developed than that of an infant. It appears that the expression "remains" was interpreted in Glasgow as "skeletal remains" in accordance with FBCA Guidance. While these findings present a mixed picture, they are also an indication that ashes can be recovered from the cremation of non-viable babies.
7.12 This is borne out by the findings submitted to the Commission by every crematorium in Scotland, available at Annex O. Whilst there was variation depending on the crematorium, the overall national percentage of ashes recovered following the individual cremation of a non-viable baby was 9% in 2010, which rose to 25% in 2012. In shared cremations of non-viable babies (where it is not possible to separate the ashes and therefore not possible for them to be collected by families) the overall national percentage of ashes recovered was 32% in 2010, rising to 36.5% in 2011 and 48% in 2012. The same findings indicate that the percentage of ashes recovery rose with the age of the baby, between 76.5% and 91% for stillbirths and infant deaths up to the age of two years respectively.
7.13 For the purposes of the Mortonhall Investigation, Dame Elish Angiolini instructed an expert forensic anthropology report by Dr Julie Ann Roberts, which is available in full at Annex E. In her expert report, Dr Roberts explains how bone develops in a process called ossification which begins as early as the sixth fetal week of life, with individual bones recognisable at 12‑13 weeks. Dr Roberts compared the results of previous studies of the effect on the very young bones of non-viable babies of exposure to extreme heat with photographic evidence of the cremation residue of babies between 17 and 22 weeks gestation cremated at Seafield and Warriston Crematoria and concluded as follows:
"The above analysis within the context of the Mortonhall investigation provides direct, visual evidence that multiple individual skeletal elements can be recognised following cremation in individuals as young as 17 weeks."
She makes reference to a further study that illustrates that even at 16 weeks gestational age there will be survival of ashes following cremation.
7.14 In the photographs of the residue remaining following the cremations at Seafield and Warriston, bones were clearly identifiable among the other residue of whatever container was used and any other material that was in the container. This is compelling evidence that there are likely to be elements of the baby in cremation residue of the tiniest babies.
7.15 Dr Roberts also explains in paragraph 8.2.3 of her report that i) the younger the non-viable baby is, the more difficult it is to recognise the components of the skeleton and ii) skeletal elements can be difficult to identify and may be confused with other burnt debris, especially by an inexperienced member of staff. She considers that there is also a risk that crematoria staff might inspect the content of the cremator chamber and wrongly conclude, because the volume of ashes is extremely small, that there are no ashes remaining.
7.16 In the context of the expert report of Dr Roberts and the different perceptions of what ashes produced by cremation are, the language of Regulation 17, quoted above at paragraph 7.1 leaves considerable room for debate about the definition of the expression "ashes".
7.17 It is arguable that the word "ashes" refers back to either "the remains of a deceased person" or to "the cremation of the remains of the deceased person". In other words "ashes" might be the "cremated remains of a deceased person" or alternatively "what is left in the cremator after the cremation process". That uncertainty mirrors the uncertainty that is discussed above.
7.18 In view of the use of different language in the various Guidance documents referred to above, the Commission thought it best to seek assistance in resolving the uncertainty by obtaining the opinion of counsel (Annex D). The issue of interpretation of Regulation 17 was referred to James Wolffe QC, now Dean of the Faculty of Advocates, and Gordon Balfour, Advocate. In their opinion they recognise the possibility of the two interpretations referred to above, but state clearly their view that the correct interpretation is that "ashes" are all that remains in the cremator at the end of the cremation process.
7.19 In coming to that view counsel had particular regard to Dr Chamberlain's description of the routine cremation as resulting in a small percentage of the coffin, of whatever material it has been made, which is inorganic in nature, and a small percentage of the body which is also inorganic in nature, mostly the bones, surviving the cremation process. They also had regard to the conclusion of Dr Roberts that fetal bones can be identified and recovered from at least 17 weeks gestation and her observation that:
"It seems highly unlikely that even if a fetus was of a very young gestational age there would be no cremated remains left, if the coffin and personal effects were included in that definition."
7.20 Counsel expressed the view that the legislator, in making the Regulations, may be taken to have understood that human remains may well be cremated in a coffin and that what remains after cremation will ordinarily include residue both of the human body and of the container in which it was cremated in a way that it would be impossible to separate them. In their view a contrary interpretation, which implied that a distinction fell to be drawn between the two forms of residue would be divorced from reality. They noted that the Oxford English Dictionary, Second Edition, definition of "ashes" is "that which remains of a human body after cremation…", but conclude that:
"the word "ashes", as it is used in Regulation 17, should be interpreted as referring to the residue (other than things, such as metal coffin fixtures, which on no sensible view would fall to be regarded as "ashes") left after the cremation of the remains of a deceased person, without seeking to distinguish between residue which derives from the remains of the deceased and residue which derives from the container or other things cremated with the body."
They considered that the alternative narrow construction would be practically unworkable. The Commission see no reason for a different approach to the cremation of stillborn and non‑viable babies.
7.21 Although counsel's opinion is clear, it is the view of the Commission that the obligation of a Cremation Authority as set out in Regulation 17 should be clarified by legislation which provides, in so many words, that the "ashes" to be given into the charge of the applicant for cremation are all that is left within the cremator at the conclusion of the cremation process and following the extraction of all metal. Cremation Authorities should review their practices immediately to ensure that they proceed on that basis.
7.22 Metal consisting of coffin fittings, medical implants such as artificial joints and similar items is routinely extracted at the end of the cremation process. The ICCM and the Association of Private Crematoria and Cemeteries (APCC) both have metal recycling schemes, in which a significant number of crematoria participate, whereby the various types of metal extracted are gathered together, sold and the proceeds donated to charitable causes. The Commission consider that that practice should be encouraged. Good practice is for the applicant for cremation to consent to any extracted metal being disposed of in accordance with the recycling scheme. In that way any issues that may arise in relation to ownership of the right to dispose of the metal are resolved. The Commission do not propose to address this matter further since it is of limited relevance to baby and infant cremations.
7.23 It was plain at meetings of Cremation Authority representatives and Funeral Directors, attended by Lord Bonomy, that those attending were acutely aware that the decision whether the obligation to give ashes into the charge of the applicant arose in practice in any baby cremation, was influenced by the Cremation Authority's understanding of what ashes are. At neither meeting was there any dissent from the proposition that clarity on the point was desirable and should result in uniform practice. There was natural concern that Cremation Authorities in Scotland make up only 10% of the total number of Cremation Authorities in the United Kingdom and that, strictly speaking, the majority would be unaffected by such a legislative change, which would in itself create another area of uncertainty and possibly confusion. The Commission have had regard to that concern and urge Scottish Ministers to inform their counterparts in England and Wales and Northern Ireland about the changes of legislation in Scotland to enable them to consider clarification of the definition of ashes in identical terms.