Is guidance on the permanence of Christian burial in need of review?
Following a post summarizing the Church of England’s approach to the permanence of Christian burial and the application of Re Blagdon Cemetery  Fam 299, we identified some instances in which other issues relating to exhumation have been raised. In Part I we examined these in relation to: the application of Articles 8 & 9 ECHR; the development of churchyards to permit the reuse of graves; and family graves. In this second part we look at: the storage and scattering of cremation ashes; cases in which there is an objection to exhumation; and where a petitioner has sought exhumation and re-interment at a more convenient location on account of medical reasons.
Overview A recent government discussion document highlighted the current popularity of cremations; according to provisional data of the Cremation Society of Great Britain in 2014 over 390,000 cremations took place, which represents 77.35% of all deaths in that year, although the total is less than in 2002. Re Blagdon Cemetery  Fam 299 made only a passing (but important) reference to cremation ashes:
“As George QC Ch. pointed out in Re South London Crematorium [Unreported, 27 September 1999] ‘Most people change place of residence several times during their lives. If such petitions were regularly to be allowed, there would be a flood of similar applications, and the likelihood of some remains (and ashes) being the subject of multiple moves”. Such a practice would make unacceptable inroads into the principle of permanence of Christian burial and needs to be firmly resisted.”
Treatment of remains In addition to the portability of cremated remains, other aspects of their treatment were considered in Philip Petchey’s earlier paper, “Exhumation Reconsidered”, (2001) Ecc LJ 122-134: this focussed on Re Christ Church, Alsager (1997), following its consideration by the Chancery Court of York and concerned an unsuccessful petition for the exhumation and reburial of the petitioner’s father in the same plot as the cremated remains of his mother. Its pre-Blagdon guidelines included more general references to ashes which remain applicable, viz.:
(1) Once a body or ashes have been interred in consecrated ground, whether in a churchyard or in a consecrated section of a municipal cemetery, there should be no disturbance of the remains save for good and proper reason.
(5) No distinction is to be drawn between a body and cremated remains, except in so far as the processes of decay may affect a coffin more than a casket containing ashes and may also affect the sensibilities of a congregation or neighbours.
With regard to the latter point, the physical portability of ashes (i.e. aside from theological considerations) gives rise to a general perception that this is a realistic possibility after interment, a perception that is bolstered by other aspects of their treatment: unlike most other European countries, after cremation the ashes can be made available to the relatives of the deceased and it is only when buried that subsequent movement is restricted by S25 Burial Act 1857. The level of influence that the churches can impose is limited since in addition to the access of cremated remains to relatives: all crematoria in the UK are operated by third parties; and in comparison to burial, there is an extended time-line between the committal service and the receipt of ashes.
Columbaria and storage of remains The secular and ecclesiastical regimes treat the above ground placement of ashes differently. In relation to non-consecrated ground, when ashes are placed in a columbarium the Ministry of Justice deems that they have not been buried and a “section 25 licence” is not required for their subsequent movement. Likewise, on grounds of practicality, a licence is not required where ashes have been scattered. By contrast, where the columbarium is on consecrated ground, their treatment falls within the vires of the consistory court; under Rule 2.2 of the Faculty Jurisdiction Rules 2015 “exhumation” is defined as including: “the removal of a body (or part of a body) or of cremated human remains from a catacomb, mausoleum, vault or columbarium”. Furthermore, the revised rules no longer permit the use of “additional matters orders” for “the exhumation or other disturbance of human remains” inter alia.
This is of significance since some crematoria have employed a practice of storing cremated remains for a fixed period after which the relatives are given the option of their continued storage on payment of an additional fee, or disposal via other means. This was considered in Re Astwood Cemetery  Worcester Const Ct, Charles Mynors Ch. although the judgment is prior to important changes introduced through the Faculty Jurisdiction Rules 2015 and Care of Churches and Ecclesiastical Jurisdiction (Amendment) Measure 2015; this was discussed in our post Time-limited storage of cremation “ashes”.
Scattering of remains The approach of the Church of England to the burial/strewing/scattering of ashes is similar to that of the Roman Catholic Church, whose Liturgy Office provides useful comment on the practicalities involved:
“… even in the case of Catholic funerals, a significant number of cremated remains are not collected by the relatives but are simply disposed of by the crematorium. Even when people have received the cremated remains of their dead they often do not know what to do with them so they are kept at home. In society at large, the common expectation is that ashes are to be scattered, for example at a place particularly favoured by the deceased … There has also been the development of the range of secular rites and practices regarding the ‘disposal’ of ashes … These may well be a sign that services at a crematorium do not of themselves necessarily bring a sense of completion to the process of ‘laying the dead to rest’”.
The guidance states:
“Where the bereaved choose to have the deceased cremated they should be advised [by the priest, a member of a bereavement team or the funeral director] of the strong recommendation of the Church that cremated remains be buried at a later stage”.
In Re Tixall Road Cemetery Stafford  Lichfield Cons Ct, Stephen Eyre Ch. cited with approval the comments by McLean Ch in Re Stocks (1995) 14 CCCC 21, 5 Ecc L J 527 in his consideration of the scattering of ashes: i.e. the Court would not allow remains once interred to be lightly disturbed, and that it would require re-interment to be in a location where there would be equivalent protection. It had to be concerned to ensure the continuing security and safe custody of the remains which had been committed to the care of the Church. Refusing permission for the exhumation of cremated remains with a view to scattering them in the Hope Valley in Derbyshire in accordance with the wishes of the deceased, Chancellor McLean said “[t]o allow disinterment in order that the ashes be scattered would … strike at the root of the principles of security and safe custody”. Chancellor Eyre further commented :
“[t]he Court of Arches did not address this point [scattering of ashes] in terms in Re Blagdon Cemetery but it did make it clear that the continuing security and safe custody of the remains in question was a very important consideration when a Consistory Court was deciding whether or not to allow exhumation”.
Update, 30 September 2023: In June 2019, the General Synod Legal Advisory Commission published new guidance Burial of a portion of a deceased’s body or ashes. Aspects of the Opinion are relevant to the recent consistory court judgment In the Matter of SMF deceased  ECC Lee 4, exhumation to permit a small quantity of the buried ashes to be processed to form a glass-like material to be set into a ring as a memento of the deceased, discussed in New CofE guidance on partial burial of remains &c (2 October 2019) and in Law and religion round-up – 1st October in relation to Re Bretforton Cemetery  ECC Wor 2.
Division of ashes between relatives (and others)The RCC Liturgy Office document alludes to the secular practice of dividing ashes between relatives and others. Whilst this is not considered in Bishop Hills’ The Theology of Burial, the CofE’s disapproval of the practice is implicit in his statement “[t]he permanent burial of the physical body/the burial of cremated remains should be seen as symbolic of our entrusting the person to God for resurrection”.
It would therefore be unusual, but not impossible, for the issue of divided ashes to come before a consistory court, such as in relation to a petition seeking the burial of the some, but not all, of the ashes of the deceased at a particular location. In Re St Aidan Thockrington  ECC New 1 the court granted a Restoration Order for the removal of a number of illegally buried items from the churchyard at St Aidan’s Church. These included a small plastic bag containing some of the illegally buried ashes of the author Tom Sharpe, the majority of which said to be were said to buried in a grave in Mieres cemetery in Spain . The court directed that the person responsible for their illegal burial, the Respondent, should inter alia inform the Registrar of her intentions for their subsequent disposal. However, as we noted in our post, this would leave the Court with a dilemma were the Respondent not to comply with its instructions. At the time of writing, no further details were available. [Top]
In Re Twyford Cemetery  Oxford Const Ct, Chancellor Alexander McGregor commented on burial in the wrong plot, he noted that generally, in relation to “genuine mistakes” :
“Faculties can … 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”.
However, in this case the petition for exhumation was opposed; he noted:
“ … Whilst 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. Unfortunately in Blagdon, the Court of Arches does not provide any guidance as to how Petitions … where exhumation is opposed ought to be dealt with”.
A determining fact in this case was the ownership of the grave by the petitioners; 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. Article 10(6) of the latter states: “No body shall be buried or cremated human remains interred or scattered in or over any grave or vault in which an exclusive right of burial for the time being subsists, except by or with the consent in writing of the owner of the right.” The chancellor concluded that most weight must be given to the legal position of the parties  and Judgment was given for the Petitioners .
Guidance in Alsager suggested that improper motives such as serious unreasonableness or family feuds would be factors against the grant of a faculty. Recent cases in this area have concerned whether present or former partners should be buried in “family graves”: Re St. Andrew, Witchford  Ely Const Ct and Re St. Matthew Stretton  Chester Const. Ct. Both concerned the reservation of grave space within a grave already occupied, and given the discretionary nature of the relief sought, in both cases the chancellors refused the petition in the light of the ordinary presumption “in favour of things as they stand”. [Top]
In Re Blagdon, the Court of Arches specifically considered “medical reasons” as an “exceptions circumstance” for the exhumation of remains, since this was a component of the consistory court hearing; however it noted: “[Counsel] wisely abandoned any reliance upon [the Petitioner’s] state of health in the course of his argument at the hearing of this appeal”. Bishop Hill’s only reference to “medical reasons” was his comment:
“In general … the reluctance to agree to faculties for exhumation is well grounded in Christian theology and eschatology. It is also right generally from the point of view of the mourner, who must learn to let go for their psychological and spiritual health.
and the Court of Arches said:
“Any medical reasons relied upon by a petitioner would have to be very powerful indeed to create an exception to the norm of permanence, for example, serious psychiatric or psychological problems where medical evidence demonstrates a link between that medical condition and the question of location of the grave of a deceased person to whom the petitioner had a special attachment”.
Although often pleaded, there have been few, if any, instances in which the courts have deemed “medical reasons” to be an “exceptional circumstance” to permit exhumation of human remains and burial elsewhere. Since most people change place of residence a number of times throughout their life, the Arches Court held that if such petitions were regularly to be allowed, there would be a flood of similar applications, and the likelihood of some remains (and ashes) being the subject of multiple moves their lives. Such petitions also appear to be based on an implicit assumption that the petitioners themselves will not subsequently change their place of residence, for example from their home to a retirement- or nursing home. [Top]
The judgment in Re Blagdon was handed down on 16 April 2002 and since then, together with Bishop Hill’s note to the court, this has formed the primary reference in cases relating to exhumation and reburial. Parts I and II of our consideration of the permanence of Christian burial have examined the application of Re Blagdon and identified areas highlighted by consistory court chancellors which were not addressed by the Court of Arches (disputed petitions, scattering of ashes), were not covered in sufficient detail (Articles 8 & 9 ECHR, HRA 1998), or on which greater consensus is required (family graves).
Commenting on the consistory court judgment in Re Christ Church, Alsager, in “Digging up Exhumation”, Bursell said:
“A definitive decision from the Court of Arches and Provincial Court may, therefore, seem to be called for unless a consensus among chancellors can be found by other means. On the other hand, in some cases it would be quite possible to make the decision either way without infringing any legal principle.”
and after the hearing in the Chancery Court of York, Petchey wrote:
“One may suspect that this is an issue which will not go away and that it is likely that in due course it will be addressed once again by the Chancery Court or Court of Arches.”
These statements were made prior to Re Blagdon in which many of the issues raised in these two articles were resolved. However, a number of uncertainties remain but should a judicial reconsideration of the Court of Arches judgment be deemed appropriate, it would benefit from an initial reconsideration of the theology of burial; whilst the basic theology is unchanged, its application would benefit from further consideration, particularly in relation to the treatment of cremated remains and “medical reasons”.
Updated: 30 September 2023 at 11:56.
 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) 6 (29) Ecc LJ (2001) 122-134.