Permanence of Christian burial revisited – III

“Distress or conflict” of relatives and the permanence of Christian burial

The judgment in Re Blagdon Cemetery [2002] Fam 299 was handed down on 16 April 2002 and since then, together with Bishop Hill’s note to the court [1], this has formed a primary reference in cases relating to exhumation and reburial [2]. The recent case Re the Cremated Remains of AA [2018] ECC Lic 7 gave further consideration to one of the issues not directly addressed in Blagdon – that of distress or conflict within the parties concerned.


In Re Blagdon Cemetery, the Court of Arches identified certain matters which were capable of being considered as “exceptional circumstances” and could provide a justification for exhumation; the list set out by the Court did not purport to be exhaustive, and each case was to be considered on its particular circumstances with an overarching presumption of permanence. Part I and Part II of our considerations of the permanence of Christian burial examined the subsequent applications of Re Blagdon and identified areas that had been 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).

The issue of “distress or conflict” is a further example, and differs from these in that it is more difficult to evince guidance from Re Blagdon or from Bishop Hill’s note. Nevertheless, it has been necessary for the consistory courts to consider such circumstances on a number of occasions, most recently in Re the Cremated Remains of AA.

Re the Cremated Remains of AA

The judgment of HH Judge Eyre QC, the Lichfield Diocesan Chancellor, is summarized on the Ecclesiastical Law Association website:

“The petitioner proposed to be buried in the same grave as her late sister and parents. However, when her sister’s husband died, his cremated remains were interred in the same grave, notwithstanding that a granddaughter of the late sister had specifically asked the parish priest not to inter the husband’s remains in the same grave, alleging that the husband had subjected her to repeated sexual abuse when she was young, and it would cause great distress to the family to have his remains in the same grave where the remains of some members of the family were already interred and where other members of the family wished their remains to be interred.

The Chancellor decided that the continuing family distress which would be caused by allowing the husband’s remains to be left in the grave amounted to exceptional circumstances justifying exhumation. He therefore granted a faculty for the exhumation of the husband’s cremated remains and for re-interment of the remains in another churchyard”.

The case is examined in more detail in our post Exhumation and reburial of alleged sexual abuser: Re the Cremated Remains of AA. As we have noted earlier, although media reports highlighted that the petition related to the exhumation of the remains of an alleged paedophile, the judgment turned on the distress caused by the parties concerned, not the alleged paedophilia per se. The approach taken by Chancellor Eyre followed that which he had taken in earlier cases, Re St Mary Haseley and Re St Paul Fazeley; as part of his consideration, he also cited other related cases [14-16], including Re St Ann Rainhill [3] in which Hedley Ch held that conflict between family members could be an exceptional circumstance warranting exhumation where the interment had become a focus for such acrimony.

Case law on “distress and conflict”

Re the Cremated Remains of AA and the examples considered in the judgment involve either circumstances surrounding a “family rift” or issues relating to the former conduct of the deceased, although such a classification is not absolute. In two of these cases there were pre-interment administrative errors which exacerbated the conflict between the parties.

“Conduct” cases

Re X, deceased involved a case in which ““X was buried with his late wife and deceased daughter, Miss X. X’s other daughter, W, sought a faculty for the exhumation of X’s body for the purposes of re-interment in the place of his birth or burial at sea because X had sexually abused Miss X and another sister…” [4].

Chancellor Hamilton granted a faculty on the basis that X would be reinterred elsewhere with a simple headstone, and gave permission to remove X’s name from the existing headstone by alteration or replacement. He noted the “extreme facts in the case” but held that “one purpose of a grave was to provide a focus for peaceful and quiet mourning and that X’s presence in the grave prevented this”.

Re St Mark, Worsley concerned the post-interment discovery by the petitioner, the wife of the deceased, who learned that her former husband had been conducting an extra-marital affair for 18 years of their marriage and had diverted substantial funds inherited by the petitioner into his business without her knowledge [5]. He had been interred in the family grave that contained the remains of the petitioner’s grandparents and parents; the petitioner described the great offence it caused her and her family to visit the grave and their refusal to countenance the idea of interment alongside the deceased.

Although she relied on ‘mistake’ and also the dilemmas that she faced – both visiting the grave and the prospect of her eventual interment within it – the Chancellor identified this as an exceptional case, to be decided on its “extremely unusual facts”. He therefore granted the faculty, not on the basis of mistake but on general principles; he noted that he did not grant this “as some retrospective punishment of the deceased”, leaving his eternal fate to God.

Family rift” cases

In Re St Mary Haseley [2009] Coventry Const Ct the petitioner sought to have the cremated remains her late husband’s exhumed and reinterred in Braeside, Scotland, on a property that he had acquired in 1962. This was described by the petitioner’s counsel as “a family at war”, and the Chancellor described this behaviour as:

“[7]. … A feature which reflects badly on the judgement and good sense of both sides in this dispute is that they have chosen to use the grave of [the deceased] as the battlefield on which to fight out that war”.

Essentially the case concerned access to the grave of the deceased, soured by the “a close, lasting, and loving relationship” between the deceased and one of the objectors”. After setting out the application of the principles in Re Blagdon on what, other than the examples cited by the Arches Court [14 to 17], might be regarded as special or exceptional circumstances, Chancellor Eyre reviewed each of the elements of the instant case [42] to [46]. He held that in these particular circumstances, only the wishes of the deceased and the unsuitability of the proposed site for reinterment could justify an exception to the permanence of Christian burial.

However, “even more telling was the fact that the conflict at the graveside was not caused by the fact that the Deceased’s remains were interred in Haseley and would probably not be ended by their removal from Haseley”. This latter factor was the crucial determining factor in this case [47], and a faculty was refused. The case will be reported more fully in the January round-up.

Re St Paul Fazeley [2016] ECC Lic 4 was another “complex family situation”, although on considering the correspondence before the court, Chancellor Eyre gained the impression that:

“[8]. … there had been no particular falling out between Anthony Wilson [whose cremated remains were the source of the dispute] and his brothers and sisters but that they were not close. The upset felt by the surviving siblings comes from the disturbance of the grave and the effect that has on the scope for quiet reflection. It is not motivated by any animosity towards Anthony Wilson”.

In granting permission for exhumation, he commented:

“[13]. The grave of Mr. and Mrs. Wilson [in which the cremated remains of Anthony Wilson had been interred] has become a focus of disquiet and grievance amongst the family members with a real degree of distress to some. I am satisfied that this aspect together with the history of the lack of consultation before the interment and with the scope for the reinterment of Anthony Wilson’s remains in a plot close to his parents’ grave means that there are exceptional circumstances justifying exhumation in this unusual and particular case”.

Although not strictly “a case of an error of administration in the classic sense of a burial in the wrong grave” [12], it was the pre-interment procedural aspects in Re St Paul Fazeley which were the cause of the family’s disquiet and grievance; also, the inter-family antagonism did not reach the hostile level of those in Re St Mary Haseley.

Likewise, Re St Mary Polstead [2017] ECC SEI 2 concerns a “family rift”, and the role of the court in ascertaining: who purchased or reserved the burial plot; what was said between the parties; what the clergy should have done in this situation, what they did do and why; and finally, what, if anything, was to be done. Here, the circumstances were exacerbated by the “unstructured approach” to the request for the interment during an interregnum [27], and a lack of questioning regarding the legal issues involved [28], and the “cavalier approach” to the objections that were raised [29].

The Chancellor ruled that the interment should not have taken place in the parents’ grave without the agreement of all of the next of kin, and accordingly granted a faculty for exhumation and re-interment elsewhere. Provisionally, the Chancellor was of the view, provisionally, that the Petitioners should not bear any costs for having had to bring these proceedings, and the priest and PCC were likely candidates for a special citation under the FJR 2015 to add persons to the proceedings so as consider a costs’ order against one or more of them. [No further information is available on this aspect of the judgment].


In our post Permanence of Christian burial revisited – II we considered further examples of the application of Re Blagdon Cemetery including circumstances where there was an objection to exhumation. We noted that in Re Twyford Cemetery, McGregor Ch commented: “unfortunately in Blagdon, the Court of Arches does not provide any guidance as to how Petitions such as the present – where exhumation is opposed – ought to be dealt with”. In this case he concluded that most weight must be given to the legal position of the parties, i.e. the ownership of the grave [31], and judgment was given for the Petitioners [36].

Other cases reviewed in this post involve whether the present or former partners should be buried in “family graves”: Re St Andrew Witchford [2015] Ely Const Ct and Re St Matthew Stretton [2015] Chester Const Ct. Both concerned the reservation of grave space within a grave already occupied, the former being a “family rift” and the latter a “conduct” issue. 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”.

Whilst the broad classification of “conduct” and “family rift” cases provides a useful description of the type of case involved, it does not assist in analysing the legal issues. There are few common features to the cases considered: all were determined with regard to the facts of the case, bearing in mind the underpinning presumption of permanence; the courts did not act as a referee in cases of a family rift, or determine the veracity of allegations made by the parties. Nevertheless, their decisions took account of the impact of the allegation of conduct or the relationships between the parties and determined whether the granting or refusal of a faculty would have a positive impact on the situation at the graveside.

As noted in Re X, “one purpose of a grave was to provide a focus for peaceful and quiet mourning”, and in Re St Paul Fazeley, “scope for quiet reflection”; these considerations of the courts transcend the immediate concerns of the parties involved, and are perhaps closer to the principles outlined in Bishop Hill’s paper.


Following the publication of this post, there has been a further consideration of the  issues of “distress or conflict” by Chancellor Eyre in Re Landican Cemetery [2019] ECC Chr 2.


[1]. C Hill, “A Note on the theology of burial in relation to some contemporary questions”, (2004) 7 Ecc LJ 447.

[2]. David Pocklington: “A Note on the Theology of Burial: A settled controversy”, Chapter 11, “Leading Works in Law and Religion” Ed. R Sandberg, [2019, Routledge, London].

[3]. Re St Ann Rainhill (Liverpool 2004) 23 CCCC 4.

[4]. Re X, deceased, (2001) 20 CCCC 29, (2002) 6 Ecc LJ 413, Liverpool Cons Ct., Hamilton Ch.

[5]. Re St Mark Worsley (2007) 9 Ecc LJ 147.

Cite this article as: David Pocklington, "Permanence of Christian burial revisited – III" in Law & Religion UK, 25 January 2019,

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