In the case Re St. John Seaton Hirst [2024] ECC New 1, a funeral director sought permission to exhume recently cremated remains for the purpose of removing a small quantity and re-interring the majority within the same plot in the churchyard of St John’s Seaton Hirst [1]. The basis for the petition was that, owing to an error on the part of the petitioner (a funeral director in a firm of undertakers), the remains of the deceased were erroneously interred without having retained a small quantity of the cremated remains for purposes previously discussed and agreed with the family of the deceased [2]. The interment in a family grave took place on 26 January 2024, and having notified the Diocesan Registrar of the error on 31 January, brought the petition, accompanied by appropriate consents, on 1 February [3].
The widow of the deceased had expressed a wish to retain a small quantity of cremated remains to be incorporated in a small piece of jewellery which was intended to include a small lock of hair from her daughter. In addition, the grandson of the deceased wished to scatter a “small quantity” of the cremated remains in “the Cheviots” where he had memories of walks with his grandfather [5]. The petition, accompanied by written consents from the family members concerned and the Area Dean (the parish is in interregnum), was issued on 1 February 2024. There was a letter from the funeral director, in accordance with standard directions, confirming that the oak casket will not have degraded and that there is no practical difficulty in an exhumation taking place which, with removal of a quantity of remains, and reinterment is estimated to take no more than one hour [7].
Citing Re Blagdon Cemetery [2002] Fam 299 and the Bishop of Stafford’s Theology of Burial, Wood Ch. noted that the permanent burial of the physical body was to be seen as a symbol of the entrusting the person to God for resurrection, a concept that does not sit easily with the concept of “portable remains” [11]. He noted:
[13]. In the circumstances of [the instant] case it is not necessary to look beyond the [Arches] Court’s ruling that a simple error in administration can form a ground upon which a faculty for exhumation can be granted”,
and concluded:
“[17]. Accordingly, the faculty is granted on the following conditions, namely that the exhumation and reinterment be carried out in a dignified manner, discreetly and with the minimum delay and that the costs arising from and incidental to the petition, the exhumation and re-interment are met by the petitioner.
Comment
Restrictions on cremation ashes for jewellery
Consideration by the consistory courts and the guidance (“the Opinion”) has been reviewed in our posts here, here, and here; In the Matter of SMF deceased [2019] ECC Lee 4 and In the Matter of Carleton Cemetery (Blackburn Diocese, petition number 61 of 2015[*]). The circumstances of the case reviewed above are similar to those of Re Bretforton Cemetery [2023] ECC Wor 2 in which owing to a mistake by a firm of undertakers, there was a failure to comply with the instructions of the petitioner, viz. that the majority of the petitioner’s mother’s cremated remains were to have been interred in the cemetery, but a small proportion of the ashes should have been retained so that they could be “symbolically scattered” in accordance with the deceased’s expressed wishes.
In Bretforton Cemetery, the time between interment and lodging of the petition was months rather than days, and a faculty was granted in the ground that the petition was consistent within the legal exceptions to the doctrine of permanence [6]. As we have noted earlier, the Church’s Opinion does not reflect the views of all Diocesan Chancellors: on the treatment of cremated ashes and their interment in one place, undivided, a view expressed in In the Matter of SMF deceased and reinforced by paragraph 6 of the Opinion; and the associated distinction between “scattering” and strewing” in paragraph 13.
Cremation ashes prior to interment
The incorporation of cremation ashes in jewellery prior to the final disposal of the remains in unlikely to come before the consistory courts, since the treatment of a body is then subject to secular provisions – a quasi-hierarchy of rights, based upon its ‘custody and possession’ [**]. This relies upon a number common law and statutory provisions, and operates by default; it therefore cannot be regarded as a strictly ‘stand-alone’ hierarchy, and the position of “lawful possession” between committal and interment is a grey area. In practice, however, until the remains of the deceased are interred, there is ample opportunity for obtaining a sample of ashes for conversion into jewellery.
[*] Footnote 9 of the General Synod Legal Advisory Commission Guidance Burial of a portion of a deceased’s body or ashes includes a summary of In the Matter of Carleton Cemetery (Blackburn Diocese, petition number 61 of 2015).
[**] This is summarized by Kennedy and Grubb (Kennedy, I and A Grubb (1989. Medical Law Text and Materials. London: Butterworths. 10) as: “‘the person who has actual physical custody of the body has lawful possession (and the duty of disposal) of it until someone with a higher right (e.g. an executor or parent) claims the body … In the absence of the executors there is a common law duty to see that the body is buried and the person lawfully in possession is normally the occupier of the premises where the body lies, or the person who has the body”.