The issue of burial and exhumation of a non-Christian in ground consecrated for Church of England burials has arisen once more.
In Re Quoc Tru Tran, deceased  ECC Man 2, the children of Mr Tran, a Buddhist who died in 1994 and was buried in the consecrated section of Southern Cemetery, Manchester, sought a faculty to exhume his remains so that they migh be cremated and re-interred in a private vault in the Buddhist Temple of Manchester Fo Guan Shan.
At the time of Mr Tran’s death there was no Buddhist burial ground in Manchester and the Fo Guan Temple did not have facilities to store cremation ashes. The only available option was to bury Mr Tran near some Chinese graves (why so is not entirely clear, since presumably Mr Tran was from Indo-China) and the family did not realise that the plot in which he was to be buried was in the consecrated section of Southern Cemetery. Moreover, there were language barriers, the Trans were new immigrants to the UK and they had very little understanding of its practices and customs.
Tattersall Ch noted that he had discretion to grant a faculty for exhumation, citing Steel Ch in Re Matheson (Decd)  1 WLR 246 at 248, to the effect that, in the event of an application for a faculty for exhumation, “each case must be considered on its merits and the chancellor must decide, as a matter of judicial discretion, whether a particular application should be granted or refused” ; however, that had to be balanced against the presumption against exhumation arising from the Christian theology of burial . He noted  the judgment of the Court of Arches in Re Blagdon Cemetery  Fam 299 at  that
“there is much to be said for reverting to the straightforward principle that a faculty for exhumation will only be exceptionally granted … Whether the facts in a particular case warrant a finding that the case is to be treated as an exception is for the chancellor to determine on the balance of probabilities”.
He also noted  that the Court of Arches had said at  that
“A mistake may also occur due to a lack of knowledge at the time of burial that it was taking place in consecrated ground with its significance as a Christian place of burial. For those without Christian beliefs it may be said that a fundamental mistake had been made in agreeing to a burial in consecrated ground”
– and had called on burial authorities to make better information available to bereaved families so as to reduce the chances of such mistakes occurring again. He also noted that, in Re Putney Vale Cemetery  Southwark Cons Ct, Petchey Ch had granted a faculty for the exhumation of the remains of a Buddhist for cremation and reburial in an unconsecrated Garden of Rembrance .
“Although the principles I have cited above relate to the Christian theology relating to death I cannot ignore the fact that the Deceased was a Buddhist and although buried in the Church of England consecrated part of Southern Cemetery was buried there because he died suddenly and his relatives did not understand the customs and practices of the Church of England or that he was buried in the Church of England consecrated part of Southern Cemetery. Moreover, at that time there was no facility for the storage of cremated remains in accordance with the Buddhist faith at the Buddhist Temple of Manchester Fo Guan Shan. In such circumstances I am satisfied that it would be extraordinarily harsh for me to apply such Christian theology to a practising Buddhist where the sole purpose is to exhume the Deceased, cremate his remains and have them stored with those of his wife at the Buddhist Temple of Manchester Fo Guan” .
Faculty granted, the petitioner bearing the costs.
In an ideal world, non-Christians would not be buried in ground consecrated to the use of the Church of England where there was any prospect of a future request for exhumation, since that will inevitably require a faculty. That was the case in Re Putney Vale Cemetery – which we noted at the time – in which, in accordance with Vietnamese tradition and culture, the petitioner sought to exhume the remains of his deceased father ten years after he was first buried in order to re-bury him, thereby showing respect to his deceased father, his father’s close relatives and the ancestor.
Re Quoc Tru Tran also underlines the need identified in Re Blagdon Cemetery for local authorities to give bereaved non-Christian families better information about the legal consequences of burial in consecrated ground – and, possibly, for funeral directors to be more alert to their needs, given that they have much greater contact with them than the local authorities do. But that said, had Mr Tran been buried in unconsecrated ground, though his exhumation would not have needed a faculty, it would have required a licence from the Ministry of Justice.
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