Legal issues surrounding temporary and permanent storage of “ashes”
In our post “Is it time to exhume the relatives?” we considered the situation in Greece, where the overcrowding in cemeteries is such that bodies are often only kept in the ground for three years. We asked whether this was a foretaste of future problems in the UK should the issues of shortage of burial space not be resolved, and observed that time-limited burial is not restricted to the interment of human bodies. Some domestic crematoria impose similar, but more medium-term, conditions on the temporary storage of “ashes”. This was considered in Re Astwood Cemetery  Worcester Const Ct, Charles Mynors Ch.; in addition, the “lift and deepen” strategy for maximizing the use of existing burial capacity is also dependent upon establishing a time limit after which this practice is applied, although this is generally in the longer term.
Time-limited storage of cremation “ashes” in England and Wales
In Re Astwood Cemetery  Chancellor Mynors noted that the Astwood Cemetery, was owned and operated by Worcester City Council as the burial authority under the Local Government Act 1972. A plan of the cemetery shows an area marked “Stowage” which identifies spaces for both the temporary and permanent storage of the cremated remains in up to 60 plastic non-biodegradable urns. This facility was offered to the families of those whose remains have been cremated on the basis: “Ashes can be stored in a small chamber with an inscribed granite plaque in a special part of the Garden of Remembrance. Each plaque has its own PERSONAL FLOWER CONTAINER and the ashes are EASILY RETRIEVED if you should wish to relocate them at a later date”, [capitalization in original].
Whereas it is common for rights to be granted for the interment of bodies for periods of 50, 75 or 99 years, at Astwood Cemetery the exclusive right to inter cremated remains and to display a granite plaque was granted for a period of only ten years. On the expiry of that period, the family of the deceased is offered an opportunity to renew the display of the plaque for a further period on payment of a further fee, which in the case of the two petitions considered by the court was £600.
If the right to display the plaque is simply not renewed, or if the family cannot be traced at the end of the relevant period, the burial authority claims the right to exhume the cremated remains and re-bury them in the garden of remembrance. The period of the interment, and thus the timing of the demand for a renewal, is simply a matter of the payment of fees; about a quarter of those within this area were interred for specified periods of years.
Critical to this case was the legal definition of “exhumation” which under Rule 2.2 of the Faculty Jurisdiction Rules 2013 includes: “the removal of a body (or part of a body) or of cremated human remains from a catacomb, mausoleum, vault or columbarium”.
The Chancellor noted:
“. It would seem that the authority [Worcester City Council] did not appreciate at the time that the “storage” of the cremated remains in containers below ground level would, or at least might, constitute interment, such that the removal of those remains would constitute exhumation, which would require a faculty. Nor did it indicate to families the difficulties that might arise if they took advantage of the fact that the ashes could be so easily retrieved
. It appears that the authority is now using chambers above the ground, to avoid such difficulties arising in the future”, [but see Comments below].
The Chancellor then considered the circumstances relating to: Petition 13-20 (Baker), [11 to 15]; and Petition 13-30 (Castles), [16 to 20]. In addition, he reviewed two other Petitions that were pending (Maslen and Perkins), [21 to 27], and one for which he had granted a faculty in 2007, . He next considered the statutory background; the need for a faculty in cases such as this; and the circumstances in which it was, and was not appropriate to grant a faculty, [29 to 59]. In summary:
“. All four petitions arguably involve some of the factors identified [by the case law] in paragraphs 53 to 56 above, which are not determinative one way or the other. None of them raises any of the factors mentioned at paragraph 57 that would indicate that a faculty should not be granted – save that the fourth petition (Parkins) proposes that the ashes be scattered rather than re-interred, which would not be appropriate, [emphasis added].
The two petitions that were formally before the court for determination – Baker and Castles were deemed to be allowable solely on the basis of the transfer of remains to existing and newly-created family graves, respectively; “such multiple use of grave space is generally encouraged, as an expression of family unity and as an economical use of land for burials … [and] was indeed the principal justification for a faculty being granted in Blagdon“, . However, whilst the third petition (Maslen) “is arguably within the third category [transfer to a new family grave] … it is questionable whether the burial of a husband and wife in a single plot constitutes a family grave”, .
The Chancellor then considered exhumation in circumstances where the original deposit of ashes was not intended to be permanent, stating:
“. It seems to me that the justification for the presumption against exhumation arises on the basis of an understanding of burial as being permanent (see paragraph 40 above). I have already noted … the very wide definition of “exhumation”, which includes the removal of human remains from catacombs, mausoleums, vaults and columbaria. The initial deposit of remains in such a location may have been intended to be permanent, in which case the normal presumption against removal should apply. But in some cases there may have been no such intention; the deposit may have been on a temporary basis, until a decision could be permanent as to the permanent disposal of the body or the ashes. That is indeed recognised by the time-limited arrangements offered at Astwood Cemetery and elsewhere. And there would seem to be no particular distinction according to whether the deposit was above or below ground level – what matters is the intention of those responsible at the time”, , [emphasis added].
“. I thus consider that a faculty should not, as a matter of principle, be required where remains are to be removed from a chamber in circumstances where it can be shown that was assumed by all concerned that they were only deposited in the chamber in the first place on the clear understanding that the arrangement would be temporary …”
Therefore, under section 11(8) of the Care of Churches and Ecclesiastical Jurisdiction Measure 1991 he arranged for the list of minor matters that do not require a faculty to be amended to include circumstances such as these, [but see comments below on subsequent changes to legislation]. He noted that in the current petitions (Baker and Castles) there was considerable uncertainty both as to what was said to the families of the deceased at the time of the original interment, and as to what was their intention. Had this been the sole ground for the exhumations, there was insufficient information on which a faculty could have been granted, . If either of the two pending petitions (Maslen and Perkins) are to be granted on this basis, “the petitioners would need to show that they only intended the original interment to be temporary”.
From the point of view of Worcester City Council, and possibly other burial authorities, the Chancellor’s clarification of the legislation will have implications on their cost-model for temporary burial. He stated:
“. … these provisions indicate that a burial authority may grant an exclusive right of burial for a limited period, and may require a fee for the renewal of the right. However, if the right is not renewed, the exhumation of the remains would still require a faculty. It follows that, if a periodic fee has been charged at the outset for, say, ten years, there could be no requirement for a person to pay a further charge enforceable by a requirement to exhume the remains in question, [emphasis added].
Furthermore, it seems unlikely that the consistory courts would approve of the scattering of “ashes” subsequent to their removal from temporary storage.
After the Astwood judgment was handed down , the Care of Churches and Ecclesiastical Jurisdiction (Amendment) Measure 2015 came into force on 1 April 2015. Under section 5(1) new sections 18B and 18C were introduced relating to the power of the Rule Committee to prescribe matters not requiring a faculty, and the power of chancellor to make further provision, respectively. Under section 5(2), section 11(8) was omitted from the 1991 Measure.
In addition, on 1 January 2016 the Faculty Jurisdiction Rules 2015 will come into force, revoking the Faculty Jurisdiction (Appeals) Rules 1998 and the Faculty Jurisdiction Rules 2013. Within these, Part 3 and Schedule 1 make provision for certain matters within the jurisdiction of consistory courts to be undertaken without a faculty. The definition of “exhumation” within the 2013 Rules, supra, is retained, but new, more prescriptive conditions are introduced for “additional matters orders”, which preclude their application for, inter alia, “the exhumation or other disturbance of human remains”.
This is a much broader term which potentially could encompass movement from above-ground temporary storage, supra. A consequence of this would be a requirement for faculty approval whenever remains were removed from medium-term temporary storage in the consecrated area of cemetery. As noted above, it seems unlikely that permission would be granted for removal of cremated remains from such an area and their scattering in the cemetery – the default position in the Astwood Cemetery – or elsewhere by the relatives of the deceased.
This emphasizes the dilemma regarding Chancellor Mynor’s concerns on the need for faculty approval where there was an intent that the storage would only be on a temporary basis. The hypothetical rejection of the Parkins’ pending proposal demonstrates the problems of simplifying the processes: whilst the Church would not object where the intention was to reinter the ashes in consecrated ground, it would not welcome their scattering, or their interment in unconsecrated ground.
 There is some ambiguity between “biodegradable” and “non-biodegradable” urns in paragraph 2, but this distinction is not material to the judgment.
 Although only recently published, the judgment Re Astwood Cemetery is dated 14 April 2014.