Is guidance on the permanence of Christian burial in need of review? Part I: Articles 8 & 9 ECHR, churchyard development and family graves
In an earlier post we summarized the Church of England’s approach to the permanence of Christian burial and the application of Re Blagdon Cemetery  Fam 299. We noted that this principle is rigorously upheld in the consistory courts; an examination of the judgments on which we have reported since 2014  indicates that most applications for exhumation have been refused. Nevertheless, there are instances in which the application of Re Blagdon Cemetery raises other issues, and this post examines those relating to: the application of Articles 8 & 9 ECHR; the development of churchyards to permit the reuse of graves; and, the concept of family graves. A later post will consider: the storage and scattering of cremation ashes; the refusal of petitions relating to portable remains, and circumstances in which there is an objection to exhumation.
The Court of Arches judgment Re Blagdon Cemetery was “greatly assisted by a paper on the ‘Theology of Burial’ from the Right Reverend Christopher Hill”, who was then Bishop of Stafford. An extended form of this paper has provided chancellors with an further source of reference ; also pertinent are the pre-Blagdon papers by Rupert Bursell in 1998, “Digging up Exhumation” , and by Philip Petchey, “Exhumation Reconsidered” in 2001 .
Rupert Bursell’s paper concludes with a consideration of the then unreported case of Re Christ Church, Alsager (1997) which concerned an unsuccessful petition for the exhumation and reburial of the petitioner’s father in the same plot as cremated remains of his mother. In “Exhumation Reconsidered” Philip Petchey reviewed Alsager in the light of its consideration by the Chancery Court of York, and of two subsequent cases in which the impact of Article 9 of the European Convention on Human Rights was addressed: one relating to a practising Jew and the other to an atheist, both of whom been buried in the consecrated parts of municipal cemeteries . In Durrington, Hill Ch had regard to the Human Rights Act 1998, which at the time of the judgment had not come into force, section 6(1) of which would impose upon all courts a duty to act in a manner compatible with the European Convention on Human Rights. He said:
“[…] it seems to me that in the facts of the present petition, this court would be seriously at risk of acting unlawfully under the Human Rights Act were it to deny the freedom of the orthodox Jewish relatives of the late Mr Saunders to manifest their religion in practice and observance by securing the re-interment of his cremated remains in a Jewish cemetery and in accordance with Jewish law.”
and concluded that:
“clarity in this matter [i.e. portable remains] has not been assisted by the two cases on the ECHR. If Alsager was too restrictive, Durrington and Luton were … insufficiently focused on the issue as to precisely what rights would have been denied if the petitions in question had not been granted … the impact of the Convention in this field ought to be limited, and it may be that in any event the Luton case will be seen as turning on its own facts”.
Subsequently, in paragraph 41 of Re Blagdon Cemetery the Arches Court comments:
“Finally, we record that although Article 8 of the European Convention on Human Rights was mentioned in argument, greater emphasis was rightly placed on other factors to be taken into account in the exercise of the discretion of the Consistory Court. We are not persuaded that the judgment of Briden Ch. constituted an interference with any Article 8 right. In the absence of any right to exhumation petitioners can expect fairness and equality of treatment in the exercise of the discretion of the Consistory Court.
Those safeguards have been and will continue to be present as Courts exercise their discretion on a proper evaluation of the facts in the light of the principles set out above.”
Since then ecclesiastical courts have addressed the issue in a number of cases; these were summarized in our post Exhumation and Articles 8 & 9 ECHR: Re Putney Vale Cemetery again . In Re Putney Vale Cemetery  Southwark Cons Ct, Chancellor Petchey considered the potential engagement of Articles 8 and 9 ECHR for which the Convention is given the force of law in England by the Human Rights Act 1998. With regard to Article 8 he noted, :
“In In re Blagdon Cemetery, the Court of Arches considered that Article 8 was not engaged in an exhumation case. Since In re Blagdon Cemetery,  Fam 299, was decided, in Dodsbo v Sweden,  ECHR 38, the European Court of Human Rights considered the lawfulness of a decision under Swedish law to refuse permission for exhumation engaged Article 8 (although the Government of Sweden had conceded this).
In In re St Andrew’s Church, Alwalton,  PTSR 479, Jones Dep Ch considered Article 8 was engaged in an exhumation case.
In the Scottish case C v Advocate General of Scotland,  WLT 103, the Court of Session held that an act which resulted in a person’s body being interred in a place not of his widow’s choosing engaged her Article 8 rights.”
He therefore 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.
With regard to 9 ECHR, he said, :
“In re Durrington Cemetery,  Fam 33, it was held that Article 9 was engaged where the petition was for the exhumation of a Jew who had been buried in consecrated ground and made by his Jewish relatives to achieve his reburial in a Jewish burial ground.
In In re Crawley Green Cemetery,  Fam 308, Article 9 was held to be engaged where a humanist had been buried in consecrated ground.
In In re Blagdon Cemetery, the Court of Arches evidently would have preferred to categorise these as cases of mistake’ but did not say that those cases were wrong.”
Importantly, he noted, :
“ … consideration of petitions for exhumation with reference to the European Convention is potentially circular: if the Chancellor is minded to refuse permission because he has not identified exceptional circumstances he will have the basis for saying that such a decision is justified on the basis of the limitations contained in Articles 8 (2) and 9 (2). Further, a Chancellor might say in any particular case that he would have given permission irrespective of whether the petitioner was able to rely on Articles 8 and 9.”
In our post “Rest in peace” – perhaps, we noted that in Re Woolwich Cemetery  ECC Swk 2, the Chancellor observed, 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, [the petitioner’s] belief and its manifestation is protected under the terms of the Human Rights Act”.
A faculty was granted in Re Holy Cross Cemetery Wallsend  ECC New 2 permitting exhumation of remains of young person of Chinese descent from the consecrated part of the cemetery, and re-interment in the unconsecrated section of the cemetery where members of the local Chinese community were now buried. One of the relevant factors [as 12 (iv)] was “the importance of the family grave to members of this community”. In Re Blagdon the Court states [36 (iv] “[t]he amount of local support, whether clerical or lay, should not operate as a determining factor in this exercise and will normally be irrelevant”; in this case, although “local support” is only one of the factors considered, it is quite particularly significant in relation to the context of the petition. [Top]
In Re-use of graves in England – the faculty jurisdiction, we noted that the Chancellor of the Southwark Diocese has issued Guidance: on Churchyards and Memorials: Reuse of Graves which stated inter alia [added emphasis]:
“Save where burial rights are granted subject to a particular period of years, there should be an expectation that grave spaces will in due course be reused, and this is necessary to economise on land-use at a time when grave space is a diminishing resource … Reuse of graves within a period of less than 75 years is likely to cause distress and offence to the living, as well as appearing disrespectful to the dead. But incumbents should promote and publicise policies for the reuse of graves as soon as 75 years have elapsed after the most recent burial therein, not least so that those presently arranging a burial are informed of what is likely to happen in the future.
Recently in Re Caister Parish Cemetery  ECC Nor 3, the Chancellor stated [9 and 10]:
“Support for the reuse of burial grounds has been often expressed by Consistory Courts throughout the Church of England. The pressure upon limited burial space is, of course, felt most strongly in urban dioceses such as Southwark, where the Chancellor recently issued guidance on this issue. Such guidance is not, of course, binding in this diocese, but is indicative of the approach often taken within the Church of England … The scheme envisaged by the Southwark guidance is exactly the type of scheme pursued by the petitioners in this case.”
Whilst Re Blagdon Cemetery limited its consideration to burials in double- or treble-depth graves in the context of family graves, i.e. the context of the appeal, in the Note prepared for the Court of Arches, the Rt Rev Christopher Hill  address the more general issue and states [emphasis added]:
“The Legal Advisory Commission of the Church of England has completed an opinion on further burials in existing graves and in land already used for burials. This is due to be published in 2004 and will cover the legal aspects of this question. Popular sentiment may often be antipathetic to such re-use. But theology and law offer no insuperable obstacles and a theology of the good stewardship of land may demand it in the future.”
He further observed:
“Re-use of graves has never been seen to conflict with Christian theology in places where burial space has been at a premium, as for example in the City of Venice where for centuries individual remains have only been kept in individual tombs a limited time before reverent removal to a communal tomb, [Isola di San Michele, photo]. There are also many examples of the re-use of sarcophagi in Christian history. While there are many questions of respect and reverence to consider in the necessary but limited disturbance involved in the deepening or re-use of graves, I can see no theological principle against the practice if done with proper care, respect and after due time.” [Top]
Bishop Christopher Hill noted with approval “the legitimate desire for members of a family to be buried in proximity”. However, “burial in, or creation of, a family grave” has been cited as an “exceptional circumstance” in petitions addressing a wide range of circumstances, and in Re St. Nicholas Codsall  Lichfield Const Ct. the chancellor observed: “ … [the] debate between the decisions of different chancellors as to the circumstances in which the creation of a family grave can justify an exhumation” .
Recently concern for the environmental and availability of burial space has placed greater importance on the development of family grave as explored in Blagdon Cemetery; however, in Re Ivy Gertrude Brisbane deceased  Lincoln Const Ct, [9.5], Chancellor Mark Bishop added the rider “but not where the movement of remains will not lead to any saving of space”, [9.5.1]. A further caveat was considered in Re Field Road Cemetery, Bloxwich  Lichfield Const Ct, in which Chancellor Stephen Eyre stated  “[p]rovided that the deceased is interred in a location which is and which continues to be suitable for the interment of his or her remains then the creation or the becoming available of an arguably more suitable location does not carry sufficient force to outweigh the presumption of permanence.”
Other recent examples of successful petitions include:.
- Exhumation and reburial in a family grave at a different location outwith the jurisdiction of the consistory court: Re All Saints Barrowby , Lincoln Const Ct, Bisceglie, Puglia, Italy; Re The Royal Burial Ground, Frogmore, Windsor; Re Exhumation of HM Queen Maria of Yugoslavia  Oxford CCt, Yugoslavia .
- Exhumation and reinternment within a group of graves “providing for the interments of three generations of the family alongside each other”: Re Coventry Road Cemetery Bedworth  ECC Cov 1.
- Exhumation to enable interment in mausoleum which had not existed at time of original interment: Re Miresse deceased: Lambeth Cemetery  Southwark Const Ct, George Ch, (2004) 7 Ecc LJ 368. Permitted since this had been the original intention which was frustrated through an error.
In some cases “burial in, or creation of, a family grave” is just one of the factors taken into consideration by the court, and the circumstances or original intend surrounding the initial interment is often a significant factor: e.g. the successful petitions in HM Queen Maria of Yugoslavia and Miresse in comparison with the unsuccessful Re Field Road Cemetery, Bloxwich  Lichfield Const Ct, Stephen Eyre Ch.
In In the matter of the Petition of Kathrine Tollis  ECC Oxf 2 the Reverend and Worshipful Alexander McGregor emphasized the Blagdon requirement [at 40] stating: “where no burial had yet occurred in a family grave clear evidence as to the existence of a legal right to such a grave would be required to justify exhumation” [13(c)].
A further issue, raised in Re St. Nicholas Codsall, was the priority given to the continuing existence of a family grave where it became necessary for one of the interments to be exhumed and buried elsewhere as a consequence of the exposure of the other coffin in the grave. .
In Re Astwood Cemetery  Worcester Const Ct, Chancellor Charles Mynors noted that there were three basic situations in which exhumation to a family grave might be considered:
- the transfer of the body to an existing family grave or group of adjacent graves containing the bodies of more than family member;
- the transfer to the existing grave of a single family member; and
- the transfer to a newly created family grave.
Significantly he stated :
“a number of chancellors have admitted in subsequent cases that this part of the judgment in Blagdon was “not very clear” . Some twenty or so of the more recent judgments relating to family graves, of which roughly one third were in each of the above three categories, have recently been analysed by the Deputy Chancellor of this diocese in Fairfield, St Mark showing that chancellors have not adhered to a particular or uniform approach”  . [Top]
A later post considers other aspects relating to the permanence of Christian burial and the need, if any, for the guidance to be reviewed.
 C Hill, “A Note on the theology of burial in relation to some contemporary questions”, (2004) 7 Ecc LJ 447.
 R Bursell “Digging up Exhumation” (1998) Ecc LJ 18-33.
 P Petchey, “Exhumation Reconsidered” (2001) Ecc LJ 122-134.
 Re Durrington Cemetery  Fam 33 (Chichester Consistory Court), summarized in (2001) 6 Ecc LJ 80-81; and Re Crawley Green Road Cemetery, Luton [2001J 2WLR 1175, summarized in (2001) 6 Ecc LJ 168.
 It should be stressed that “again” in the title refers to a further case relating to this particular cemetery and members of the same Vietnamese Buddhist family, not a reconsideration of the case by the Court of Arches.
 Mallinder (2006) 25 CCCC 1, Sheffield Consistory Ct; Brown (2008) 27 CCCC 11, Sheffield Consistory Ct.
 Fairfield, St Mark (Camp)  PTSR 953, Worcester Consistory Court, per Fookes Dep Ch at paras 50, 51.