Exhumation and the Permanence of Christian Burial: a review of recent consistory court judgments

Christopher Grout, barrister, has kindly contributed the following guest post which reviews recent consistory court judgments relating to the permanence of Christian burial

The presumption of the permanence of Christian burial is well-known, as are the leading authorities on the test for granting a faculty for exhumation: In Re Christ Church Alsager[1] in the Province of York and In Re Blagdon Cemetery[2] in the Province of Canterbury. There have been a number of legislative[3] and common law[4] developments post these judgments, but they nevertheless remain the principal authorities on the topic.

In an effort to obtain a snapshot of modern practice, this author reviewed all judgments of the consistory courts relating to exhumations as reported in the Ecclesiastical Law Journal (‘the Journal’) since 2015. As the Journal only provides a brief summary, it was necessary to review the full transcripts all of which, with the exception of two[5], have been published online.[6]

From the beginning of 2015 to the present, the Journal has recorded 52 judgments where faculties for exhumations have been sought; 40 in the Province of Canterbury and 12 in the Province of York. Consistory courts within the Province of Canterbury granted 30 faculties for exhumation and refused 10; consistory courts within the Province of York granted 9 faculties for exhumation and refused 3. In percentage terms, that equates to a 75% grant rate in each Province.

It is accepted, of course, that the Journal will not report every single judgment issued by every single court. However, over a close to 5-year period, it is interesting to note that the grant-refusal ratio as between the two provinces is the same. It is unsurprising that the volume of reported cases that fall within the Province of Canterbury is higher for the simple reason that it contains the greater number of dioceses (71%).

Of greater interest, however, are the insights which can be gleaned from a review of the full transcripts of the judgments. Of particular importance is the fact that in 46 out of the 52 judgments, the principle of permanence of Christian burial was explicitly noted by the courts. Where it was not involved cases where (a) temporary removal of remains was sought as the vault where they had been interred had become flooded[7], (b) exhumation and re-interment in a family grave was sought[8], (c) a faculty was sought to remove a skull for testing to see whether it could be that of William Shakespeare[9], (d) a faculty was sought for removal and re-interment owing to the fact that the ground above the grave had become waterlogged[10], (e) a faculty was sought for removal and re-interment where sinking of the ground had exposed the coffin[11] and (f) a faculty was sought in order to obtain a DNA sample which may have vindicated an individual convicted of two counts of rape.[12] In all but (c) faculties were granted.[13]

This could suggest that the chancellors in these cases were either not concerned with the principle or, perhaps, did not see the need to spell it out. It may be, however, of no coincidence that the majority of these cases involved some form of damage to the grave having taken place. Perhaps common sense simply dictated that something needed to be done to remedy the situation and in such circumstances there was little point in dwelling on theological principles. Similarly, in the DNA case, the Chancellor observed

I consider that if there is even a slight, but real, possibility that there has been a serious miscarriage of justice then it is wholly proper that everything be done to ensure that that is not the case.[14]

Again, this is perhaps an example of pragmatism.

In all but four cases[15], the judgments of the consistory courts cited the relevant authorities.[16] It may be thought strange that, having noted the principle of permanence of Christian burial and having, for the most part, cited the relevant authority, a significant majority of faculties for exhumations were nevertheless granted.

A number of the cases illustrate attempts by chancellors to justify exhumations based upon the relevant factors set out in Blagdon, most notably on the grounds of the creation of a family grave and/or mistake. The latter, however, has been applied in a somewhat nuanced fashion. In Blagdon the Court made clear that a change of mind on the part of relatives or those responsible for the interment should not be treated as an acceptable ground for authorising exhumation, notwithstanding the trauma that is often experienced in cases of an unexpected death.[17]

However, in Re St Peter, Edgmond[18] Chancellor Eyre, having acknowledged that no mistake had been made in relation to the interment, nevertheless concluded that the case was one ‘where reflection would have been highly likely to have led to a different approach being taken at the time’[19] and granted a faculty. Similarly, in In the matter of David Ernest Newton, deceased[20] Chancellor Singleton QC granted a faculty in circumstances where she inferred that at the time of the burial of the deceased, the wife was ‘overwhelmed by her loss and made this decision when still confused by grief’.[21] In Re St Saviour, Smallthorne[22] the Lichfield Consistory Court held that whilst a genuine mistake would ordinarily justify exhumation of those particular remains there may be cases, of which this was one, where the sensible course would be to exhume the remains of another person (who had been correctly interred) so that they could be reinterred together.

In the recent case of Re Felixstowe Cemetery[23] the 97-year old petitioner sought to exhume the remains of her late husband so that they, along with hers when the time came, could be scattered. The Chancellor concluded that there had been a misunderstanding as to the consecrated nature of the ground in which the deceased had been buried and that it would be wrong to frustrate what he accepted was the couple’s long-term plan. He granted a faculty noting that

“most right-thinking members of the Church would see this as I do: namely a very touching and lifelong story of a very precious marriage and the duty owed by one person to another whom she has outlived”.[24]

These cases are certainly illustrative of the compassion of chancellors but they arguably stretch the concept of mistake, at least as envisaged by the Court of Arches in Blagdon, too far. They certainly also pay little regard to the permanence of Christian burial.

Of course, the Blagdon categories are not exhaustive and attempts to fit unsuitable cases within the examples set out in that case can lead to artificial results, as evidenced above. This was recognised in Re Bingham Cemetery[25] where it was observed that

“Even the clear and general guidance that can be found in such decisions as Alsager and Blagdon cannot be regarded as comprehensive: as has been said in a number of contexts, guidelines are not to be treated as tramlines. The only fixed principle is that the circumstances as a whole, properly evaluated and considered, will need to establish that it is right to make an exception to the presumption of permanence”.[26]

Some of the recent cases reviewed acknowledge this. In Re the Cremated Remains of AA[27] the Chancellor, noting that this was not a category recognised in Blagdon, nevertheless held that 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”.[28]

Similarly, in Re St Thomas, Worting[29] the Court was prepared to accept, albeit with a degree of reluctance, that evidence of a pastoral breakdown as between the petitioner and the vicar may provide justification for exhumation. However, a faculty was refused in that case on the grounds that the petitioner planned to keep her husband’s ashes in an urn at home and then reinter them in her garden. The Chancellor observed that to allow the petition

“…would remove the ashes from a situation where they are subject to the protection of this court and the presumption of permanence in Christian burial, to a situation where they are not. This would be to undermine the permanence of Christian burial which I am required to protect”.[30]

There exists, it appears, a tension in this area of the law. It is clear that the consistory courts are, on the whole, mindful of both the principle of permanence of Christian burial and the authorities on the subject. Nevertheless, it is equally clear (and the judgments are testament to this) that a great many chancellors will seek to give effect to faculty requests from those whom they consider to be deserving petitioners. It may be that such applications fall squarely within the guidance given by the appellate courts, but it is also evident that the consistory courts will not shy away from either establishing new categories of exception or, less persuasively, trying to fit unsuitable cases within established exceptions.

A warning shot was fired by Chancellor Hill in Re St Michael and St Lawrence, Fewston[31] when he observed that

“The faculty jurisdiction is not some limpid simulacrum of the secular planning system, which it predates by many centuries. It is a vibrant functioning expression of the ecclesiology of the Church of England which helps to facilitate its mission and witness as the church of the nation. A key function of the consistory court is the maintenance of Christian doctrine. If there is to be a departure from the theology of the permanence of Christian burial, it should only be after careful consideration, which should invariably precede any disinterment”.[32]

Chancellor Hill certainly took his own advice in the case (not yet reported in the Journal but doubtless will be in the next volume) of In the matter of SMF (deceased)[33]. The petitioner sought a faculty to remove a teaspoonful of her husband’s ashes in order to make a piece of jewelry from them. The petition was refused, the Chancellor observing that

“Advances in technology to allow something which was not possible at the date of the original interment cannot be considered to be exceptional. There will always be the possibility of fresh expressions of grief as societal practice and scientific know-how evolve. When SMF’s ashes were interred sixteen years ago what is now proposed was not in the contemplation of his family, the undertaker, the cemetery owner or the church.

But that does not detract from the concept of permanence being part, at least, of the intention of those committing the remains to a consecrated burial plot. Modern technology which gives new options to family members that were not available years before cannot be seen as exceptional: they are potentially limitless in extent. If 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”.[34]

Whether other chancellors will follow Chancellor Hill’s line of reasoning remains to be seen.

Christopher Grout

Notes and references

[1] [1999] Fam. 142

[2] [2002] Fam. 299

[3] As to the issue of precedent see s.14A (1) of the Ecclesiastical Jurisdiction and Care of Churches Measure 2018

[4] In particular see In Re Holy Trinity, Bosham [2004] Fam. 125, In Re St Nicholas, Sevenoaks [2005] 1 W.L.R. 1011, In Re St Mary, Sledmere [2007] 1 W.L.R. 1538 and In Re London Road Cemetery, Mitcham [2016] ECC Swk 12

[5] Re St John, Washingborough (unreported) 25 Nov 2014; see (2015) Ecclesiastical Law Journal 17(2) 262 and Re St Agatha, Woldingham (unreported) 24 Nov 2015; see (2016) Ecclesiastical Law Journal 18(2) 265

[6] See http://www.ecclesiasticallawassociation.org.uk/index.php/judgements, accessed 9 November 2019

[7] Re St Andrews Cemetery, Jesmond [2018] ECC New 1

[8] In the matter of David Bell, deceased [2016] ECC She 4

[9] Re St Leonard, Beoley (unreported) 3 April 2015; see (2016) Ecclesiastical Law Journal 18(2) 253

[10] Re St Agatha, Woldingham (unreported) 24 Nov 2015; see (2016) Ecclesiastical Law Journal 18(2) 265

[11] Re St John, Washingborough (unreported) 25 Nov 2014; see (2015) Ecclesiastical Law Journal 17(2) 262

[12] Re St John, Elswick [2018] ECC New 4

[13] In Re St Leonard, Beoley (n9) Chancellor Mynors, in refusing the petition, observed that ‘the curiosity as to the skull at Beoley has no factual base whatsoever to justify exhumation, removal or investigation. The whole enterprise is entirely speculative. As in the Bosham case, the evidence led by the petitioners fails to come near to the standard required; and the proposed research has no realistic prospect of producing useful knowledge’ at paragraph 55

[14] Re St John, Elswick (n12) paragraph 10

[15] Re St Andrew’s Cemetery, Jesmond [2018] ECC New 1; Re Putney Vale Cemetery (unreported) 26 Oct 2015; see (2016) Ecclesiastical Law Journal 18(2) 259, Re Putney Vale Cemetery (unreported) 6 August 2014; see (2015) Ecclesiastical Law Journal 17(1) 129 and Re Trinity Burial Ground, Hull [2018] ECC Yor 4

[16] This usually meant that consistory courts in the Province of Canterbury would follow Blagdon whereas consistory courts in the Province of York would follow Alsager although in Re Holy Cross Cemetery, Wallsend [2016] ECC New 2 the Newcastle Consistory Court applied Blagdon as did the Manchester Consistory Court in Re Southern Cemetery, Manchester [2016] ECC Man 2. In Re Torrisholme Cemetery, Lancashire [2018] ECC Bla 1, although the Blackburn Consistory Court applied the Alsager test, it used Blagdon as a ‘cross-check’ (see paragraph 15 of the judgment). See also Re Felixstowe Cemetery [2019] ECC SEI 2 at paragraph 12

[17] In Re Blagdon Cemetery (n2) 308

[18] [2017] ECC Lic 4

[19] Ibid at paragraph 11

[20] [2018] ECC She 1

[21] Ibid at page 2

[22] [2016] ECC Lic 3

[23] [2019] ECC SEI 2

[24] Ibid, paragraph 12

[25] [2018] ECC S&N 1

[26] Ibid, at paragraph 15

[27] [2018] ECC Lic 7

[28] Ibid, paragraph 13

[29] [2018] ECC Win 4

[30] Ibid, at paragraph 6. Although see Re Hither Green Cemetery [2018] ECC Swk 3 where a faculty was granted even though the petitioner planned to keep her son’s exhumed remains at home

[31] [2016] ECC Lee 7

[32] Ibid, at paragraph 7

[33] [2019] ECC Lee 4

[34] Ibid, paragraph 22

Cite this article as Christopher Grout, “Exhumation and the Permanence of Christian Burial: a review of recent consistory court judgments” in Law & Religion UK, 12 November 2019, https://www.lawandreligionuk.com/2019/11/12/exhumation-and-the-permanence-of-christian-burial-a-review-of-recent-consistory-court-judgments/

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