In a recently-reported case, a consistory court considered whether cremated remains could be exhumed 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. This post considers the judgment of the consistory court; a subsequent post addresses the broader issues raised.

In the Matter of SMF deceased [2019] ECC Lee 4

The petitioner [ref. 1] was the widow of SMF who had died 16 years ago at the age of 38; his cremated remains were interred in the consecrated portion of the municipal cemetery in the Diocese of Leeds with which the proceedings were concerned. She was left with two children, a son then aged 14 and a daughter aged 7. The deceased’s daughter, now aged 23, wished to have a ring made from the deceased’s ashes as a special memento which might help to ease the grief of losing her father [7].

This would involve exhuming the ashes and taking “a spoonful” of ashes to be converted by an industrial process to form a stone, which would be placed in a ring setting. The remaining ashes would be reinterred in the original grave. The deceased’s widow and the deceased’s surviving parent (his mother) supported the proposal [8]. Additional information supplied by the petitioner included the statement: “My father-in-law recently passed away and my mother-in-law has saved some of his ashes for my daughter to have a beautiful ring made from them” [9].

There was no statement from SMF’s daughter, but the Chancellor, The Worshipful Mark Hill QC, accepted what was said on her behalf by her mother and grandmother. Similarly there was no documentation from those responsible for the cemetery, but the Chancellor proceeded on the basis that the petitioner’s assertion was correct, viz. that SMF’s ashes were interred in a casket and that it would be physically possible to recover the casket, remove a portion of the ashes, and return the casket, with the remainder of the ashes, to the burial plot [11].

The petitioner’s evidence referred to “Ashes to Glass” and on searching the internet for these three words, the Chancellor noted a potential match  – ‘Ashes into Glass ® –  which “may or may not be the venture identified by the petitioner” [12] [see ref 2]. Of relevance to the judgment is the text from this site accompanying what is being marketed as a “Tribute Ring”. This reads:

“[12]. … The Tribute Ring symbolises eternal love and togetherness. It holds a lifetime of special memories and tells a story that is deeply personal to you”

[13]. … We require one spoonful of the ashes per item ordered and will return the unused ashes together with your completed order. […] We use traditional techniques combined with our own unique, patented processes to create a beautiful, lasting tribute to the one you hold dear. Your loved one’s ashes, coloured glass crystals and molten glass are skilfully layered together to create the rough stone. […] Once cooled, it is expertly cut, polished and toughened before being set.”

It was assumed that this process, or something broadly similar, was what the petitioner proposed for SMF’s cremated remains. The notes accompanying the pro-forma petition remind those contemplating seeking a faculty for exhumation of the relevant legal and doctrinal principles, conveniently summarised in Re Blagdon Cemetery [2002] Fam 299, and in particular paragraph 33 on the presumption of permanence of Christian burial. None of the fact-specific categories in Re Blagdon appeared to be of relevance in the instant case, and the Chancellor sounded a cautionary note, stating [emphasis added]:

“[17]. As to precedent, whilst the population at large will not have a nuanced understanding of the common law doctrine of stare decisis and its historic inapplicability in the ecclesiastical courts, the principle of equal treatment requires consistency in decision making: like cases should be determined alike. I am mindful that allowing this petition could lead to a flood of such cases in the future both in the Diocese of Leeds and elsewhere in the Church of England. However, I do not consider it appropriate or pastorally sensitive to refuse an otherwise meritorious petition solely because it might open the floodgates to a high number of similar cases in the years ahead.

The Chancellor determined this particular petition on its own merits, asking himself whether the petitioner had demonstrated that the facts of this case were such as to constitute an exception to the general principle of law and Christian doctrine that there should be no disturbance to cremated interred in consecrated ground [18]. With regard to the availability of modern technology, he noted that although  this gives new options to family members that were not available years before, these cannot be seen as exceptional: they are potentially limitless in extent: “[I]f changing fashions of mourning and the availability of alternative uses for cremated ashes were to justify the routine exhumation of human remains, the finality of Christian burial would be stripped of all its meaning” [22] . He continued [emphasis added]:

“[23]. In the rare cases where a faculty for an exhumation might be granted, it is almost invariably on the basis that the remains are re-interred in consecrated ground: see, by way of example my recent judgment in Re Clayton Cemetery, Bradford [2019] ECC Lee 2, particularly paragraph 16. [In the instant case] part at least of SMF’s remains would not be re-interred in consecrated ground but would instead be incorporated through an industrial process into a piece of jewellery. Whilst others may take a different view, I tend to the traditional understanding that cremated ashes should be treated in like fashion to a human body and interred in one place, undivided. For the purposes of this petition, however, I expressly leave that matter undecided.

[24]. An imperfect analogy might be the line of cases concerning petitions for an exhumation so tissue or bone samples can be taken for DNA analysis or similar. Faculties were refused in Re Holy Trinity, Bosham [2004] Fam 125, Hill QC Ch, and in the appellate case of Re St Nicholas, Sevenoaks [2005] 1 WLR 1011, Ct of Arches. Whilst a faculty was granted in Re St Mary, Sledmere (2010) 10 January, unreported, Collier QC Ch, and in Re London Road Cemetery, Mitcham [2016] ECC Swk 12, Petchey Ch, in each of these cases the judgments emphasised the high hurdle set for petitioners in order to demonstrate exceptionality”.

The Chancellor considered “each and every manner in which it might prove possible to accede to sincere wish of the petitioner” [25]. He regretted that he could see no basis upon which an exhumation might be permitted. This case was admittedly unusual, but not exceptional. The law constrained him to refuse the petition and he so directed.

Comment

Important aspects of this judgment are:

• whilst the Chancellor expressed his views on the traditional understanding that cremated ashes should be treated in like fashion to a human body and interred in one place, undivided, for the purposes of the petition, he expressly left the matter undecided.
• critical factors in the case were the high hurdle set for petitioners in order to demonstrate exceptionality, and the unusual, but not exceptional facts of the case.
• only the removal of a portion of ashes post-interment was considered, and not the use of ashes in jewellery per se. Whilst the Church of England’s traditional understanding on the treatment of cremated remains is clearly applicable in both circumstances, no formal restrictions apply to the latter; the treatment of a body prior to its final disposal is determined by  ‘custody and possession’ and subject to a quasi-hierarchy of rights, based upon a number common law and statutory provisions.

Footnote:

[1]. The Chancellor cautioned against breaching the anonymity of the petitioner: “This judgment has been anonymised to protect the privacy of the family concerned. Any reporting of this matter which identifies the petitioner, her family, the deceased or the cemetery in which his remains lie buried, will be treated as a contempt of court and dealt with accordingly”.

At the outset of the case, the petitioner was alerted to the strong legal and doctrinal presumption against exhumation of human remains consigned to God’s keeping in consecrated ground, and the need for an exceptional case to be demonstrated if permission were to be granted [3]. Furthermore, the Chancellor noted that in faculty cases, the burden of proof lies on the petitioner [4]. 

[2]. This post concerns addresses the issue where cremation ashes are processed into a glass-like material for the creation of remembrance jewellery. The phrase “ashes to glass” is used as a generic description of the type of processes envisaged in the petition.

Updated: 6 March 2024 at 19:15.