How often do consistory courts permit the disturbance of human remains?

A recent headline in the Coventry Telegraph proclaimed “Incredibly rare ruling means man’s body can be reburied beside his beloved wife at different cemetery”, a view that was more accurately stated in the NSS link to the story “A judge has over-ridden normal Church of England rules that a last resting place should be final”. This item related to the judgment in Re Coventry Road Cemetery Bedworth, summarized here,  in which the Chancellor followed the approach laid down by the Court of Arches in Re Blagdon Cemetery [2002] Fam 299, based upon the Church of England’s “long-established presumption against exhumation and in favour of the permanence of Christian burial in consecrated ground [1]”. However, the headline in the Argus prompted the thought “how often and in what circumstances does a consistory court grant a faculty for the movement of human remains?” This post examines recent examples where the courts have permitted exhumation and reburial under the headings considered by the Arches Court.

Re Blagdon Cemetery

In its considerations, the Court of Arches addressed the general principles and theology of exhumation, [18 to 22, and 23 to 27, respectively], and noting that “the norm is permanence in relation to Christian burial”, examined the exceptional circumstances which would justify departure from the norm”. These were examined in the light of the Chancery Court of York formulation in Re Christ Church, Alsager [1999] Fam 142, viz. “[i]s there a good and proper reason for exhumation that reason being likely to be regarded as acceptable by right thinking members of the Church at large?” Importantly, the Arches Court stated [emphasis added]:

“We agree with [the York Chancery] Court that exhumation cases do not ‘involve a question of doctrine, ritual or ceremonial’… However, we consider that a summary of the theological principles can be usefully stated here so as to promote a better understanding of the theological reason for the approach taken by the Consistory Courts to applications for exhumation from consecrated land.”

It then considered six factors which can arise in connection with a petition for a faculty for exhumation, and the Arches Court considered the extent to which these might be regarded as “exceptional circumstances”: (i) medical reasons preventing the petitioner from visiting the grave; (ii) lapse of time since the interment; (iii) mistake on the location of the grave/change of mind of the petitioner; (iv) local support, i.e. “all close relatives are in agreement; and the fact that the incumbent, the parochial church council and any nearby residents agree”; and (vi) the establishment or burial in a family grave.

When applying these factors, chancellors generally follow the approach outlined by Ch. John Gallagher in Re: Tunbridge Wells Cemetery [2016] ECC Roc 1:

“[13] I have a discretion, but the presumption is that the burial of human remains in consecrated ground is permanent. This is the starting point when dealing with the discretion. The presumption arises from the Christian theology and tradition that burial, or as here, the interment of cremated remains, is to be seen as the act of committing the mortal remains of the departed into the hands of God as represented by His Holy Church.

[…]

[15] … It is … important to bear in mind, that the factors identified by the Court of Arches are not determinative, nor are they of necessity exclusive. They are guidelines rather than tramlines as to how the Court should exercise its discretion.”

The permanence of Christian burial has been rigorously upheld by the consistory courts, and an examination of the judgments on which we have reported since 2014 [2] indicates that most applications for exhumation have been refused. Nevertheless, there are circumstances under which Re Blagdon Cemetery permits a chancellor to grant a faculty, the occurrence of which could not be described as “incredibly rare”. These recent cases have mainly concerned mistakes, the creation of family graves, and other miscellaneous examples. To these should be added issues over which secular legislation takes precedence.

Mistakes

Unfortunately, the occurrence of “mistakes” is far from “incredibly rare”, which is surprising given the basic nature of the operations involved – correct identification of the assigned plot, digging a hole in the earth to pre-determined dimensions, and placing the correct coffin in the correct grave space.The Department of Constitutional Affairs’ Guide for Burial Ground Managers (2005) notes [at para. 3.2]

“Double-bookings of the same space, and burial in the wrong grave, are sadly not uncommon. They reflect very badly on the burial ground managers, incur additional trouble and expense to put right . . . . . . and cause unnecessary and avoidable distress to the friends and relatives of the deceased. The orderly burial in the correct grave of the correctly-identified individual is the least the bereaved can expect.”

The term “mistake” appears to be too mild a description to actions that lead to appreciable distress to the families involved and the necessary involvement of the consistory courts to resolve the errors where there is a breakdown in the mediation between the parties involved [3].

In general, petitions are granted in most of the straightforward “mistake” cases, although each is dependent on the facts. The Arches Court stated [36 (iii) para. 3]: “[f]aculties can in these circumstances [of “genuine error”] readily be granted because they amount to correction of an error in administration rather than being an exception to the presumption of permanence which is predicated upon disposal of remains in the intended not an unintended plot or grave”.

Administrative errors: In Re Twyford Cemetery [2015] Oxford Const Ct Chancellor Alexander McGregor stated that the decision in Blagdon is a binding authority on him in the Oxford Court, but added “[w]hilst mistake as to burial in the wrong plot is in itself an exception, it doesn’t automatically follow from that that a Faculty must be granted [28]”. In this case, the funeral undertaker was wrongly allocated a burial plot by a Twyford Parish Council employee, and the legal owners of the plot petitioned successfully for the exhumation of the incorrectly buriedremains; the petitioners had ownership through an exclusive right of burial granted at an earlier date by the Council under s214 Local Government Act 1972 and Local Authorities Cemeteries Order 1977. Although not involving a mistake, the remedies available to the court in Re Tunbridge Wells Cemetery [2016] ECC Roc 1 below, were also predicated by the ownership of the burial plot. In another recent case, Re Woolwich Cemetery [2016] ECC Swk 2 a faculty was granted for the exhumation of the cremated remains of two people had been buried in a grave already reserved for someone else as the result of an error by cemetery staff, and their re-interment in another part of the cemetery. Unusually, a year’s delay in the exhumation was sought by the non-Christian relatives; sooner would be regarded as “unpropitious”.

An indication of the non-prescriptive approach of the courts is given in Re St. Peter Dunchurch [2013] Coventry Cons Ct (Stephen Eyre Ch), in which there was a mistake on behalf of the incumbent due to inconsistent record keeping; although a burial plot for Mrs P-W had been reserved and authorized by faculty so that on her death she could be buried in a plot alongside her husband, a wholly unrelated person had been buried there.  Whilst one option would have been to petition for the mistakenly-interred remains to be exhumed and re-interred elsewhere, as in Re Twyford Cemetery, this was not sought by the incumbent and the P-W family since the family of the person buried there was unaware of the mistake and they did not wish to cause them distress. In these unusual circumstances, the Court granted permission for the exhumation of Mr P-W who had been buried in the correct plot, his re-interment elsewhere in the churchyard and the reservation of a “new” adjacent plot for Mrs P-W.Re St Peter Guntons [2016]

Mistaken belief of petitioners: In Re St Peter Gunton [2016] ECC Nor 5 “there was clearly no mistake at all made at the time of [the interment of the petitioners’ father] interment” but “[it was] nevertheless clear to [the Chancellor] that a mistake was made in burying [the petitioners’ mother] in that “the family were clearly operating under the mistaken belief that they were obliged to comply with the terms of [her] will whatever their own understanding of her actual wishes”. This action defeated the original intention of the mother and the father to be buried together. After her burial, the children regretted not having buried their parents together and made a fairly prompt application to rectify the situation. Chancellor Arlow cited Re St Peter, Dunchurch [2013] Coventry Cons Ct, above, where Chancellor Eyre held that it was legitimate to characterize a mistake in relation to the burial of someone else’s remains in a neighbouring grave reserved for the deceased’s wife as a mistake affecting the deceased’s grave.

Inadequately dug graves: Exhumation is also sought in cases where the original grave has not been dug sufficiently deeply with the result that the coffin had become exposed to the surface at one end, Re St John Washingborough [2014] Lincoln Cons Ct, Mark Bishop Ch, or a double-depth grave was inadequately dug and was of insufficient depth for a second interment, Re St. Nicholas Codsall [2015] Lichfield Const Ct. In the latter case, the court considered that no mistake was made regarding the initial interment and “the plot is an appropriate one [for this] and [the] remains can be preserved in that plot in a secure and seemly manner”. However, a petitions for the exhumation of these remains was also granted on the grounds of maintaining an existing family grave. [Top]

Family Graves

In Re Blagdon Cemetery, the Arches Court stated [36 (vi) para. 2]:

“Burials in double or treble depth graves continue to take place at the present time. They are to be encouraged. They express family unity and they are environmentally friendly in demonstrating an economical use of land for burials”.

Normally the burial of family members in the family grave occurs immediately following the death of the particular member of the family, but this is not necessarily the case as in Blagdon and others. Environmental issues and shortage of burial space are now more pressing than in 2002, although in Re St. Nicholas Codsall [2015] Lichfield Const Ct. the chancellor noted [9] that there was: “ … [a] debate between the decisions of different chancellors as to the circumstances in which the creation of a family grave can justify an exhumation”. This will be considered further in the later post.

In Re Coventry Road Cemetery Bedworth [2016] ECC Cov 1, the Chancellor determined that it was appropriate to grant a faculty to allow the remains of the petitioner’s father to be exhumed and then reinterred with the remains of his wife in one of the three family graves where “[there] will be a group of graves providing for the interments of three generations of the family alongside each other. Finally it should be noted that exhumation has been permitted where re-interment was outwith the jurisdiction of the consistory court: Re All Saints Barrowby [2015], Lincoln Const Ct, Bisceglie, Puglia, Italy; Re The Royal Burial Ground, Frogmore, Windsor; Re Exhumation of HM Queen Maria of Yugoslavia [2013] Oxford CCt, Yugoslavia. [Top]

Miscellaneous

Deterioration of churchyard: Whilst infirmity and medical reasons are seldom considered a sufficient reason to permit exhumation, a faculty was granted in Re St. Agatha Woldingham [2015] Southwark Const Ct where part of the churchyard was frequently waterlogged for several weeks, making regular visits impossible. The Chancellor noted that in an extreme case the deterioration of a churchyard might form the basis for a successful petition, as in Re St. Margaret Thornbury [2011] Walford Ch. Bradford Const Ct. The instant case was distinguished in that the petition was made promptly, once a proper assessment had been made of the situation had been made; there was no intention by the incumbent to rectify the situation; and a double depth grave was involved.

Illegally buried ashes: Permission for exhumation was granted in Re St. Aidan Thockrington [2016] ECC New 1 under a restoration order following the interment without permission of a portion of the cremated remains of the novelist Tom Sharpe, together with various other items. In this case, the options for the subsequent treatment of this portion of the ashes were with the person who undertook their initial illegal burial, or the court if no action were taken within a specified period.

Non-Christian beliefs: As we noted in our post Exhumation and Articles 8 & 9 ECHR: Re Putney Vale Cemetery again “exhumation from ground consecrated to the use of the Church of England engages the faculty jurisdiction, whatever the faith of the person interred. However, where Articles 8 and 9 ECHR, particularly the latter, are engaged, it is necessary to take into account the manifestation of religious beliefs”. This was the case in Re Putney Vale Cemetery [2014] Southwark Cons Ct, Petchey Ch. in which permission for exhumation was granted to some members of the same Vietnamese Buddhist family; the Chancellor considered that in his opinion, “in cases of this kind, Article 8 rights are engaged, and that the Court of Arches, if it had to consider the matter again would hold that they were” [14]. Furthermore, he concluded

“In the present case, unless permission for the exhumation of Tich Trinh Hong’s remains be permitted, Mr Hong and his family will be unable to manifest their religious beliefs. Although the right to manifest such beliefs is not an unfettered one, I do not think the general arguments which otherwise strongly support the maintenance of the principle of the permanence of Christian burial in consecrated ground should prevail to prevent that manifestation,” [19].

In the “classic mistake” case Re Woolwich Cemetery [2016] ECC Swk 2, above, the Chancellor observed that in relation to the year’s delay to the exhumation that was sought, “this is of course no part of Christian belief but it is a matter which is obviously entitled to respect; as a matter of law, his belief and its manifestation is protected under the terms of the Human Rights Act”. Although a faculty was granted in Re Holy Cross Cemetery Wallsend [2016] ECC New 2 permitting exhumation of remains of young person of Chinese descent and re-interment in another section of the cemetery, this was inter alia on the basis of cultural/community grounds rather than religious beliefs.

Family feuds and last wishes A number of cases in the past couple of years have involved disputes between different parts of a family, former wives and current partners, some of which have reiterate the “clear and express wishes” in the will of the deceased, or otherwise, to be buried in a particular cemetery or with a particular partner. However, other issues rather than such concerns have been the primary consideration of the courts. In Re Tixall Road Cemetery Stafford [2014] Lichfield Cons Ct, a petition was refused for the exhumation of cremated remains of petitioner’s father in order that they might be scattered together with those of the subsequently deceased mother on the banks of the river Tyne. Although these were the stated wishes of the mother, the Chancellor stated that where remains have been committed to the care of the Church, they should only be disturbed if the Court can be satisfied that appropriate arrangements are in place for the continuing protection of the remains, Re Stocks (1995) 14 CCCC 21, 5 Ecc L J 527. [Top]

Secular legislation

In both Re Twyford Cemetery and Re Tunbridge Wells Cemetery the secular legislation under which ownership of the burial plots were conferred was a critical factor. In addition to circumstances such as these which are specific to a single plot, it is not uncommon for legislation associated with large infrastructure project to disapply section 25 Burial Act 1857 in relation to both the ecclesiastical courts and the Secretary of States’ requirement, whichever is relevant.

In earlier posts we have indicated that it is not uncommon for section 25 Burial Act 1857 to be disapplied in relation to large scale infrastructure projects and S 27 High Speed Rail (London – West Midlands) Bill 2013-14 to 2014-15, (as amended in the High Speed Rail (London-West Midlands) Bill Select Committee, 24 February 2016) states:

“Burial grounds: 1) Nothing in any enactment relating to burial grounds and no obligation or restriction imposed under ecclesiastical law or otherwise has effect to prohibit, restrict or impose any condition on the use of any land comprised in a burial ground for the purpose of constructing any of the works authorised by this Act.”

By contrast, whilst S 74 London Local Authorities Act 2007 empowers a burial authority to disturb or authorise the disturbance of human remains interred in the grave for the purpose of increasing the space for interments in the grave, subsections 9 to 11 provide that: the jurisdiction of the consistory courts is unaffected; where the burial authority proposes to disturb any human remains in consecrated land the burial authority, it must first obtain a faculty, “with or without conditions attached to it; the provisions of section 25 of the Burial Act 1857 (c. 81) shall not apply to a removal carried out in accordance with the provisions of section 74. [top]

Comment

A review of recent cases has indicated a number of instances in which the consistory courts have permitted exhumation and reburial under the guidelines provided by Re Blagdon Cemetery. A future post will consider a number of areas not addressed directly by this guidance.

[1] An extended form of the Note prepared for the Court of Arches by the Rt Revd Christopher Hill is published as: C Hill, “A Note on the theology of burial in relation to some contemporary questions”, (2004) 7 Ecc LJ 447.

[2] [2014]; [2015]; [January 2016]; [February 2016]. The particular circumstances relating to the re-use of graves was discussed in our January post.

[3] There is an analogous situation in health and safety issues, whose professionals contend that the term “incident” should be used in place of “accident” which suggests a lack of preventability.