The issue of the permanence of Christian burial and the circumstances in which, exceptionally, exhumation and reinterment of remains might be authorised by faculty has arisen once again in Re St X, the Cremated Remains of AA  ECC Lic 7.
AA and BB were married for some forty years. It was a second marriage for both of them and each had children from their previous marriages. BB died in 2008 and her remains were buried in a grave with the remains of her parents in the closed churchyard of St X . AA died in 2016 and his ashes were buried in the same grave [5 & 6].
In 2014, solicitors for BB’s granddaughter, CC (whose mother was BB’s daughter from her first marriage) told AA that she was going to make allegations that he had abused her sexually between the ages of five and thirteen – but AA was never prosecuted and his children subsequently rejected her allegations . However, Eyre Ch said that he had no reason to doubt that CC’s account was made in good faith; and it was accepted as truthful by her parents (BB’s daughter and son-in-law) and by her great-aunts and uncles (BB’s siblings) .
The petitioner, DD, is BB’s sister. She and her husband intend to be buried in the grave with AA and DD’s grandparents. When DD learned of CC’s allegations in late 2014, she instructed her solicitors to inform AA that he no longer had her permission to be buried in the family grave. She subsequently told the then vicar of St X, the Revd FF, about her decision and gave him a copy of the letter from her solicitors to AA, whereupon he assured her that AA’s remains would not be interred in that grave . After AA died, DD met with the Revd GG – the new vicar of St X – and he repeated the Revd FF’s assurances . But he must have forgotten, because in March 2017 he buried AA’s ashes in the grave containing the remains of BB and her parents and the interment was subsequently authorised by faculty . In June 2017, DD learned what had happened and approached the Revd HH, who was then overseeing matters at St X’s during the absence of GG. At a meeting attended by HH, the Archdeacon, and members of each family – including EE and one of her brothers – it was agreed that AA’s remains should be exhumed and reinterred elsewhere. EE subsequently changed her mind and withdrew her agreement to the exhumation . DD brought the current petition seeking the exhumation of AA’s remains and their reinterment in the grave in the churchyard of St Y which contains the remains of his parents .
Eyre Ch began by noting that the approach to a petition for exhumation was laid down by the Court of Arches in Re Blagdon Cemetery  Fam 299;  3 WLR 603and that the starting point in exercising his discretion was the presumption of the permanence of Christian burial:
“That presumption flows from the theological understanding that burial (or 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. Exhumation is to be exceptional and the Consistory Court must determine whether there are special circumstances justifying the taking of that exceptional course in the particular case (the burden of establishing the existence of such circumstances being on the petitioner in the case in question)” .
He was satisfied that “in rare cases the fact that the presence of particular remains in a grave has become the cause of distress or conflict is capable of being an exceptional circumstance justifying exhumation”; and though the Court of Arches in Re Blagdon Cemetery had not included distress or conflict in the list of matters that were capable of being exceptional circumstances justifying exhumation, that list did not purport to be exhaustive. Each case had to be considered on its own facts, “with the court remembering the force of presumption of permanence and taking care not lightly to regard considerations of distress as being exceptional circumstances for these purposes” .
He had taken that approach himself in Re St Paul, Fazeley  Ecc Lic 4 and in Re St Mary, Haseley (Coventry 2009) ; and in Re X,20 CCCC 29 (2002) 6 Ecc LJ 413, Hamilton Ch had taken a similar view in the Liverpool Consistory Court, authorising the exhumation of a father’s remains from the grave which he shared with his wife and one of their daughters after it had come to light that the father had abused that daughter (and, it appeared, another daughter) because the presence of the father’s remains prevented “the peaceful and quiet mourning at that graveside by family members of his wife and of the abused daughter whose remains were in the same grave”. Hamilton Ch had held that the facilitation of such “peaceful and quiet mourning” was one purpose of Christian burial and interference with it warranted exhumation . A similar approach had been taken by other chancellors .
There had been a deliberate decision to inter the remains of AA in the grave in St X beside his wife of forty years and her parents; moreover, the allegations against AA, though put forward in good faith and genuinely believed by CC and her family, were not accepted by AA’s children . Against that, he had to take into account the grave had become a focus of distress and grievance:
“[I]t is particularly significant that the grave contains the remains not just of BB but also of her parents. It follows that the presence of AA’s remains impacts not only on BB’s descendants but also on her siblings attending to mourn their parents. It is also of particular note that DD had received assurances before AA was interred that his remains would not be placed in this grave” .
If the Revd GG had remembered his conversation with DD he would have been highly unlikely to have supported the interment and it was “highly regrettable” that the Court had not been given the full picture when authorising AA’s interment or when it was subsequently petitioned for a confirmatory faculty – though the Chancellor had no reason to suspect that it had been the result of anything other than oversight on the part of GG and of unfamiliarity with the petition process on the part of EE .
In conclusion, he was satisfied that there were exceptional circumstances that justified exhumation and that the proposed exhumation and reinterment were justified and appropriate in this case . A faculty would issue accordingly .