Ecclesiastical Court Judgments – April (II)

Review of the ecclesiastical court judgments during April 2021 (2 of 3)

Seventeen consistory court judgments were circulated in April. The first part of this round-up featured seven which relate to Reordering, extensions and other building works. This second part reviews the six judgments which concern Exhumation, and Part III looks at Churchyards and burialsCDM Decisions and SafeguardingReports from the Independent ReviewerPrivy Council Business,  and CFCE Determinations, as well as links to other posts


Exhumation

Problems of access

Re St. Peter and St. Paul Barnby Dun [2021] ECC She 2 The petitioner wished to have the cremated remains of his late wife, who died in 2013, exhumed from the churchyard at Barnby Dun, in South Yorkshire, and re-interred in Littlehampton Cemetery, in West Sussex. The petitioner and his two sons lived in West Sussex, and considered it to have been a mistake for the deceased’s remains to have been buried in Barnby Dun, close to the remains of her parents. Also, one of the petitioner’s sons, who was very close to his mother, suffered from severe physical disabilities, and was unable to visit his mother’s grave 250 miles away without support. Following the test for exceptionality suggested by the Chancery Court of York in Re Christ Church Alsager [1998] 3 WLR 1394 –  “Is there a good and proper reason for exhumation, that reason being likely to be regarded as acceptable by right thinking members of the Church at large?” – the Chancellor decided that this  was an exceptional case which justified the grant of a faculty for exhumation. [Re St. Peter & St. Paul Barnby Dun [2021] ECC She 2] [Top of post] [Top]

Family graves 

Re Burnley Cemetery [2021] ECC Bla 2 The petitioner wished to exhume the cremated remains of her husband, who had died in 2015, from Burnley Cemetery, with a view to reinterring them in a family grave which the family was in the process of purchasing at a cemetery in Morecombe, and which the petitioner intended to be her own final resting place. The petitioner’s family lived at Morecombe.

The petitioner is now 82 years of age and travelling has become more difficult for her. She wishes her husband’s ashes and the urn to be brought home to Morecambe to be interred in this new family grave as it would give the petitioner a great feeling of contentment to be able to visit her husband at Torrisholme Cemetery and to know that, when her time comes, they can both rest in peace together. At the time of the deceased’s interment, the family had not been aware that the grave was in consecrated ground as they had not been the original purchasers of the grave plot and they had not been aware of any difficulties there might be in moving the deceased’s cremated remains [3]. The reason the petitioner was hoping to be granted permission for her husband’s ashes to be exhumed was for her contentment, so that she and her husband would be together when her time should finally come in the new family plot that she was currently purchasing [5].

Citing Re Blagdon Cemetery [2002] Fam 299 and reviewing the authorities, helpfully listed at the start of the judgment, the Chancellor stated:

“[14]. This is a case like Re Bingham Cemetery and Re St. Mark, Winshill where the petitioner seeks to exhume her late husband’s remains from an existing family grave, in which it would be perfectly possible for her remains to be laid to rest, in order to create a new family grave elsewhere. It would involve removing the deceased’s cremated remains from the grave in which they have rested, with the remains of his parents, for the past six years. I do not consider that the wish to create a new family grave elsewhere justifies the disturbance of an existing family grave, at least where it is still capable of accommodating, in due course, the remains of the deceased’s closest surviving relative.

The Chancellor determined that the petitioner had not established special circumstances to justify the grant of a faculty for exhumation: “…the time spent, and the inconvenience and difficulties experienced, in travelling from Morecambe to Burnley, even at the age of 82, do not amount to special circumstances such as to justify the exhumation” [13]. [Re Burnley Cemetery [2021] ECC Bla 2] [Top of section][Top of post]

Re Peel Cemetery [2020] EC Sodor 2 A faculty was granted for the exhumation of remains of mother-in-law of petitioner from Peel Cemetery and their reinterment in a private chapel called The Chantry, at Crogga, where the remains of the deceased’s son and the petitioner’s husband were laid. This otherwise uncontroversial case concerning exhumation apart from the requirements of the Manx Burials Act 1986. S.22(1) of the Act precludes the removal of human remains from the land in which they have been buried without the consent of the Department of Environment, Food and Agriculture; s.22(2) provides an exemption for the removal of remains from one piece of consecrated ground to another on the authority of the ordinary (that is the Bishop or the Vicar General). In this case, however, the exemption did not apply because the land at Crogga was not “consecrated” within the meaning of s.22(2), even though it had been blessed by the Roman Catholic Auxiliary Bishop of Liverpool and Monsignor Devine before the deceased’s remains were interred there. Readers may recall the changes made to the Burial Act 1857 whereby a similar requirement in England and Wales was removed in 2014, here and here.  [Re Peel Cemetery [2020] EC Sodor 2] [Top of section] [Top of post].

Errors in burial

Re Iris Dean Deceased [2021] ECC Man 1  Iris Dean [`the Deceased`] died on 29 December 2010 and on 1 April 2011 her cremated remains were interred in grave A136 at Blackley Cemetery Manchester. By her petition dated 21 October 2020 her daughter Anne Elizabeth Croasdale [`the Petitioner`] sought a faculty to exhume such remains and to re-inter them in grave A12 at Blackley Cemetery. Her sister Barbara Legg supports the petition. There are no other children of the Deceased [1].

At the date of her death the Deceased was 83 years old. She had expressed the wish to be cremated and that her cremated remains should be interred in grave A12 with her parents, brother and sister. However, on her death the Deceased`s husband did not wish to be interred with his in-laws and accordingly a new grave, A136, was purchased, being the nearest available to grave A12 and the Deceased`s cremated remains were interred in grave A136. At that time the settled intention of the Deceased`s husband was that in due course he should be interred in such grave [3].

In December 2020 the Deceased`s husband, who was then aged 97 years, indicated that he did not wish to be cremated and that he wished to be buried with his parents in a churchyard in Droylsden. Accordingly, in accordance with his wishes, following his death in September 2019 he was interred with his parents in Droylsden [4].

The application thus derives from the fact that at the insistence of the Deceased`s husband, the Deceased`s cremated remains were interred in a grave in which he had originally intended should also be the Deceased`s husband`s final resting place, that he subsequently changed his mind so that the Deceased`s wishes as to the place of her burial, to join other immediate family members in a family grave. were not fulfilled [5].

Applying the test in Re Blagdon Cemetery [2002] Fam 299, the Chancellor concluded:

“[23]. In these unusual circumstances I think it is appropriate to categorise this case as one of mistake and that it is appropriate that I should, in the exercise of my discretion, grant a faculty for the proposed exhumation. In my judgment it would be wholly unfair, and indeed unconscionable, to deny the Deceased`s her choice of her final resting place when the Deceased`s husband has had his own wishes met. Additionally, I note that an exhumation of the Deceased`s cremated remains would allow her to be re-interred in an existing family grave.

[24]. If the Deceased`s remains had not been cremated, I might have had some difficulty in ordering an exhumation some 10 years after burial, but that potential problem does not arise here.

[25]. Although in her Petition and subsequent statement the Petitioner describes that the failure to comply with the Deceased`s wishes has had a profound effect on her health, in all the circumstances it is unnecessary to set out or adjudicate upon such matters in this judgment.

Faculty granted. [Re Iris Dean Deceased [2021] ECC Man 1] [Top of section][Top of post]

Re Wetheral Cemetery [2020] ECC Car 2 The petitioner sought a faculty for the exhumation of the remains of the (unrelated) person buried in plot C71 in Wetheral Cemetery (“the deceased”), as a result of an error for which Wetheral Parish Council, the body that administers the Cemetery, was responsible [1]. The petitioner had purchased plot C71 many years earlier, next to plots reserved for members of her family. There were two pairs of family plots either side of a path. The deceased had reserved plot C77, but unfortunately at the time of his burial, the burial authority’s record reading C77 was misread as C71. The history of the case is summarized in paragraphs [2] to [12] and the location of the burial plots is helpfully illustrated in paragraph [8].

The deceased’s family strongly objected to the exhumation. The burial authority accepted that it had made a mistake and offered the petitioner a choice of plots next to the remaining three family plots. The Parish Council’s stance on this Petition is that while it accepts it made an error, and is deeply apologetic for the upset caused to the petitioners, it is unwilling to support her petition, given the wishes of the family of the deceased [13].

Referring to the permanence of Christian burial in Re Blagdon Cemetery [2002] Fam 299, the Deputy Chancellor stated that one of the factors that may weigh in favour of exhumation is where there has been a genuine mistake [27], but noted that the Court of Arches made it clear that the views of close relatives are “very significant” [29]. He contrasted the decision of McGregor Ch. in the matter of Re Fairmile Cemetery Lower Assendon [2017] ECC Oxf 2, [31] to 38], with that of Ormondroyd Ch. in Re South Stoneham Cemetery [2018] ECC Win 2, [39] to [42]. In Re Fairmile, McGregor Ch. decided that the case was not one

“…where the presumption of permanence does not apply because the burial was in an unintended rather than an intended grave. It is not the sort of case identified by the Court of Arches as being one where faculties can readily be granted.”

Furthermore, he held that

“… where the Court of Arches addresses cases of mistake it is concerned with cases where exhumation is carried out at the behest – or at least with the support – of the family of the deceased; not with cases where it is proposed by someone else to exhume a body in the face of opposition from the family of the deceased.”

However, in South Stoneham Cemetery Ormondroyd Ch. considered that burial contrary to an exclusive right amounted to a powerful factor in favour of exhumation. The Deputy Chancellor determined not to grant a faculty. He considered the views of the deceased’s family as significant [55], that the delay in petitioning was also a factor [56],[57], and he attached weight to the offer by the burial authority of alternative plots next to the other family plots [60]. [Re Wetheral Cemetery [2020] ECC Car 2] [Top of section] [Top of post]

Re William Nooney deceased [2020] ECC Bri 3 The petitioner’s husband, a Roman Catholic, had wanted to be buried at Avonview Cemetery, where other family members were buried. However, when he died in 1995 no further burials were being permitted at Avonview Cemetery [4]. He was therefore buried at Filton Cemetery in a grave chosen or accepted by the funeral directors; at the time burial plots were available in both the consecrated and unconsecrated parts of the cemetery [5]. In 2018 burials were resumed at Avonview Cemetery, due to paths and previously unused land being set aside for burials. However, there are only a very few grave spaces available and these cannot be reserved [6].

The petitioner became aware that the area of Filton Cemetery where her husband was buried was consecrated in accordance with the rites of the Church of England. She therefore wished to have his remains exhumed and reinterred at Avonview Cemetery. A petition was submitted in November 2019, and the Chancellor issued a series of directions which established the majority of the facts set out above; by special citation he directed that E C Alderwick and Son be added as a party as he was of the view that, if a mistake had been made with the position of the interment, it was possible that the responsibility lay with them, or their predecessors Messrs Thomas Davis [10].

“[11]. It became clear that whoever at Thomas Davis organised the funeral had made an assumption that an interment after a Church service should occur in consecrated ground regardless of the denomination of the deceased.”

“[17]. In my opinion this case falls squarely within the ‘mistake’ exception to the permanence of burials as identified in Re Blagdon Cemetery [2002] 3 WLR 603. Had Mr Nooney been Anglican I would not have allowed the exhumation.”

In granting the petition, the Chancellor was satisfied that the mistake was made by a former employee of Messrs Thomas Davis (now Bristol Funeral Directors, owned by CE Alderwick). He directed that direct that C E Alderwick pay the costs of this petition and hearing including the costs of the petitioner and of the Registry. [Re William Nooney deceased [2020] ECC Bri 3] [Top of section] [Top of post]


Notes on the conventions used for the navigation between cases reviewed in this post are summarized here.

Cite this article as: David Pocklington, "Ecclesiastical Court Judgments – April (II)" in Law & Religion UK, 30 April 2021, https://lawandreligionuk.com/2021/04/30/ecclesiastical-court-judgements-april-ii/

 

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