The consistory court judgments reviewed in Ecclesiastical court judgments – June included the ELA review of the recent case Re An Exhumation [2025] ECC Por 1 which followed the confusion in distinguishing between “the Correct Plot” and “the Incorrect Plot” of cremation ashes, [capitalization in original].  In order to protect the privacy of the family concerned in this case, Summers Ch. anonymized the judgment, and incidentally protected the identity of the rector/petitioner whose “self-help remedy” proved costly.

Background

A relative of the deceased visited the churchyard the day before the interment and pointed out to the parish curate (who was to conduct the interment service) that the hole which had been prepared for the ashes was not in the right place  Summers Ch. referred to the place in which the hole was mistakenly dug as “the Incorrect Plot [3]. The curate consulted the rector who advised that a hole should be dug in the Correct Plot. The next day, pre-interment prayers were said, with the family present, at the Correct Plot. The deceased’s family wished to depart before the interment took place and the curate placed the ashes, in a bag, in the hole which had been dug there [4].

Exhumation, reinterment, and confirmatory faculty

It was after this that matters started to go wrong, albeit with the best of intentions of those concerned. After the family had left, the verger insisted that the ashes should have been placed in “the Incorrect Plot”. The verger and the curate consulted the rector who, after considering the matter and the graveyard plan, concluded that a mistake had been made and advised that the ashes should be moved. The ashes were thereupon picked up from the Correct Plot and poured from the bag into the Incorrect Plot and the grave was covered over [5].

When the family was informed they said that this was not the intended grave. The rector and curate spoke to the family and worked into the night trying to determine whether a mistake had been made or not: the verger could not be found that evening but was in touch very early the next day [6].

The day after the interment the rector, without consulting the archdeacon or the diocesan registry, let alone obtaining a faculty, dug up the ashes from the Incorrect Plot. With family members of the deceased present, the ashes were reinterred on the same day by the rector and the curate in the Correct Plot [8].

Resolving the situation

Family

In response to a request from the family, the rector wrote a long and detailed letter explaining the circumstances, apologising without reservation and detailing how procedures would be reviewed to avoid the situation happening again, including procuring a three-way agreement between rector, verger and family about the location of graves before they are dug. The Chancellor added that although not mentioned, “surely equally necessary, is associated precision in record keeping of graveyard locations. The rector refunded the family the parish’s element in the statutory interment fee; the family accepted the apology [9].

The court

Summers Ch. was satisfied that the rector had made a genuine mistake in this case about the location for the interment of the ashes. He also considered that the rector had taken all reasonable steps after the mistake came to light to deal with the situation in an honest and pastorally sensitive manner [10]. However [emphasis added]:

“it is clear that the rector should have obtained advice from the diocesan registry (and also notified the archdeacon) before exhuming the ashes from the Incorrect Plot. It is a clear principle of ecclesiastical law that Christian burial is permanent. Exhumation is only to be permitted (by the Consistory Court) in truly exceptional circumstances: Re Blagdon Cemetery [2002] Fam 299. One such exceptional circumstance is where burial has been effected by mistake in the wrong place, though every case will turn on its own facts.

[12]. Had the rector contacted the registry for advice, the registry could have contacted me or my deputy to obtain an emergency faculty permitting the exhumation (which, in the circumstances, I would have granted). Because the rector did not do that, his actions were unlawful and, had the position not been regularised through this application for a confirmatory faculty, would have exposed him to serious sanctions.

[13]. It is to be emphasised with the utmost clarity that where incumbents face difficult legal situations relating to their graveyards, they should contact the registry for advice, including on an expedited, emergency basis in an appropriate case such as this. The registry is pleased to advise and assist, but they cannot do so unless contact is made.

[14]. Subject to the usual order allowing contrary submissions, I determine that the petitioner should pay the costs of preparing this judgment.

Comment

The comments at [12,13] echo those of Hill Ch., who stated that in Cases of urgency, ““The consistory court is amongst the most nimble and efficient of the courts of this realm. The registry is well equipped, accessible and responsive: it can move with speed and expedition in cases of urgency”, Re All Saints Feathertone [2025] ECC Lee 1.