In Re Blagdon Cemetery  Fam 299, the Arches Court reviewed the circumstances under which burial in a “family grave” might be considered as an exception to the general presumption of permanence of Christian burial arising from the initial act of interment. The Court noted the long history of “family graves”, where “in a less mobile society…it was accepted practice for several members of a family to be buried in one grave”. The determination continued:
“Burials in double or treble depth graves continue to take place at the present time. They are to be encouraged. They express family unity and they are environmentally friendly in demonstrating an economical use of land for burials. Normally the burial of family members in the family grave occurs immediately following the death of the particular member of the family…” [36(vi)].
Since 2002, the Arches Court Re Blagdon Cemetery  Fam 299 has been the source of reference in consistory court deliberations on various aspects of exhumation, and we considered how often consistory courts permit the disturbance of human remains. In addition we have looked at:
- Articles 8 & 9 ECHR, churchyard development and family graves;
- Cremation ashes, objections to exhumation; and
- “Distress or conflict” of relatives.
A 2016 post Permanence of Christian burial revisited – I observed that Bishop Christopher Hill had noted with approval “the legitimate desire for members of a family to be buried in proximity”. However, “burial in, or creation of, a family grave” has been cited as an “exceptional circumstance” in the determination of petitions addressing a wide range of circumstances, although in Re St. Nicholas Codsall  Lichfield Const. Ct. Eyre Ch. noted : “ … [the] debate between the decisions of different chancellors as to the circumstances in which the creation of a family grave can justify an exhumation”.
Re St. Andrew Netherton and Re St. George Kidderminster
Humphreys Ch. raised the issue of family graves in Re St. Andrew Netherton  ECC Wor 5 and in Re St. George Kidderminster  ECC Wor 10 where she reiterated her earlier observations, saying:
“. It has to be said that it is not particularly easy to find a clear path through the reported decisions of Chancellors who endeavour to balance the doctrine of the permanence of Christian burial with the understandable desires of petitioners in their various circumstances. Considering only ‘family grave’ authorities from the past two years the following apparently conflicting decisions have been made’
. In Re St George New Mills  EC Der 2, Re Tixhall Road Cemetery Stafford  ECC Lic 3, Re St Giles Ashtead  ECC Gui 1 and Re Burnley Cemetery  ECC Bla 2 the respective Chancellors determined that the desire to remove cremated remains to rebury in a family grave did not amount to special circumstances to warrant an exception to the rule of permanence;
. However, in Re Peel Cemetery  EC Sodor 2, Re Lambeth Cemetery Tooting  ECC Swk 3, Re St. Saviour’s Cemetery Hungerford  ECC Oxf 3 and in Re St. Peter & St. Paul Barnby Dun  ECC 52 relocation to a family grave was considered sufficient reason for exhumation.
Noting that Re Blagdon Cemetery emphasises the importance of precedent in promoting consistency of approach, the Chancellor followed judgments of her predecessors: Re St. Mark Fairfield  Worcester Const Ct, Fookes Dep. Ch. and Re Astwood Cemetery,  Worcester Const. Ct, Mynors Ch. She noted  that:
“. …[t]he desirability of expressing family unity and economic use of space for burials applies in both cases. And it is noted that in Blagdon Cemetery itself the deceased’s remains were transferred to a plot in which the remains of no other person had yet been buried, although it was intended that his parents would be buried there in due course”.
. On balance then, I determine that the reasons in support of the desirability of ‘family graves’ as set out in Blagdon Cemetery apply where two family members are united in the same way (if less forcefully) as where three or more family members are united. Therefore, a faculty can be granted to unite the remains of two people only if, in my discretion, I consider there are strong enough reasons for it.
She further noted that in the instant case, in addition to the family grave justification, other reasons could be relied upon in support of the petition : “I do find that the above factors, taken together with the relocation to a grave containing the remains of one family member only, is sufficient to enable a faculty to be issued, subject to the practical issues in respect of the condition of the cremated remains ”.
In Astwood, Mynors Ch. identified three situations in which burial or reinterment in a family grave might be sought :
- the transfer of the body to an existing family grave or group of adjacent graves containing the bodies of more than family member;
- transfer to the existing grave of a single family member; and
- transfer to a newly created family grave.
He further noted that “some twenty or so of the more recent judgments relating to family graves , of which roughly one third were in each of the above three categories, have recently been analysed in Fairfield, St Mark, showing that chancellors have not adhered to a particular or uniform approach. He concluded his judgment stating
“. This brief review of the decided cases indicates that there are some general principles applicable in many if not all cases. But it also clearly demonstrates that no set of guidelines, however complete, will cover all situations; and petitions for exhumation, more than many others, will still require the exercise of discretion by the chancellor on a case-by-case basis, albeit against the background of the clear presumption in favour of the permanence of burial”.
The reviews of “family graves” undertaken by Mynors of pre-2014, and most recently by Humphreys of further cases reported in 2021 both emphasize the difficulties of discerning an uniform approach to otherwise straightforward cases. This is supported by the 67 judgments which considered this aspect of exhumation which we have reviewed since 2014.
 An extended form of the Note prepared for the Court of Arches by the Rt Revd Christopher Hill is published as: C Hill, “A Note on the theology of burial in relation to some contemporary questions”, (2004) 7 Ecc LJ 447.
See also: 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].
 Humphreys Ch. also raised the issue in Re St. Andrew Netherton  ECC Wor 5; however, in this case, the location for the reinterment was chosen to be near to the graves of the petitioner’s parents and other family members and therefore that grave forms part of a group of graves containing more than one family member and “fits within the Blagdon Cemetery test”.
Updated: 5 April 2023 at 14:04.
Wales: there used to be a practice of retaining a grave area in preparation for probable family members in the future. Not clear at the moment whether this is still used but it does not require the removal or movement of the existing body in that place.