An earlier post Scattering ashes – Church of England reported that in Re Lambeth Cemetery [2025] ECC Swk 2, Petchey Ch. addressed the scattering of cremation ashes, [26] to [31], and whether it was unlawful, or not, for an Anglican minister to scatter cremated remains as opposed to strewing [1]; he concluded that scattering as opposed to strewing was not always irreverent and was dependent upon the facts of the case.

Scattering was again considered in Re Holy Trinity Trowbridge St Thomas [2025] ECC Sal 1 in which the “Family Grave/Method” of re-interment was one aspect of the potential “exceptional circumstances” [2] considered in relation to the Petitioners’ faculty, [24] to [30]; permission had been sought to exhume their mother’s cremated remains from Holy Trinity Churchyard, Trowbridge and to scatter them at Portchester Crematorium, where other family ashes had been scattered. The ashes had been interred in 1977, and their father—who arranged the burial—died in 2019.

The petitioners argued that their mother’s Portsmouth roots, the church’s diminished use, and family connections to Portchester justified the move. Deputy Chancellor Rawlings applied the principles from Re Blagdon Cemetery, and held that Christian burial in consecrated ground is presumed permanent and that exhumation requires “special circumstances.” He reviewed the raft of previous judgments which exist in this area of law helpfully set out some examples of factors which might give rise to a finding of an exceptional case.

With regard to the scattering of ashes, he noted:

“[24]. One factor which has often been determinative is where the exhumation is to reunite a relative with others in a family grave. In this matter the family seek to exhume the box in which the ashes were interred and scatter them in the new location. I take note of the fact that the ashes of the deceased’s father and mother were scattered at the Portchester location, along with other relatives.

[25]. This leads me to consider the nature of the current interment and proposed reinterment. I am told the deceased’s ashes were interred in a box under a ledger stone, thereby a marked grave in consecrated ground. This was the decision of the petitioner’s father who has sadly passed away since that time and is therefore unable to provide any view as to the rationale for his decision-making or indeed the possible exhumation and reinterment.

I have already noted that the petitioners state they were not consulted as to what should happen to the ashes and indeed, they were young at the time…I cannot find without contemporaneous evidence what might or might not have been in the minds of the deceased’s then family. The petitioners in their supporting letter accept that they are not aware of any specific instructions left by their mother prior to her death.

[26]. It is quite usual for the spouse of a deceased to determine the nature of any funeral or cremation and the final resting place…However, I do not accept that establishes a special circumstance to permit the interference with the finality of burial. If I did, I would be reversing the decision of her then next of kin with no evidence as to the rationale for the burial or to suggest it was against the deceased’s wishes upon which to make that determination.

[27]. The reinterment is to be a scattering of ashes rather than a reburial. The scattering of ashes is not in itself determinative in my view. I do note the law in this regard as it is helpfully set out in the recent case of Re Lambeth Cemetery…In his judgement the chancellor sets out the law under Canon 38 and the advice which has been provided by the Convocation of York and more recently Legal Advisory Commission namely: “It is unlawful for an Anglican minister to scatter (as opposed to strewing) cremated remains as to do so is irreverent .” (emphasis in judgment)

[28]. Petchey Ch. goes on to opine that scattering as opposed to strewing is not always irreverent and is a matter of fact. Whilst I acknowledge my brother chancellor’s opinion which ultimately led him to grant the faculty, I cannot apply the argument to this case. It is evident from the Lambeth case that amongst other factors, the remains of the exhumed body were to be united with other members of his family to be scattered together. This is probably the closest one can get to a “family grave” scenario when the deceased are cremated. As I have set out above, this is not the case in the matter before me and I distinguish the Re Lambeth case on the facts.

[29]. The petitioners explain that the ashes of their mother’s parents were scattered at the Portchester location. However, this case would see the “scattering” of further family ashes at the same site but many years later. I note that there is no intention for the ashes of their mother to be interred/scattered with those of her husband, nor for his ashes to be interred in Trowbridge. Whilst not stated explicitly it appears from the representations of the petitioners that this situation may have arisen following their father’s remarriage. I have considered if this has a bearing on my decision, but I cannot find that this assists in establishing a special circumstance for the exception to finality.

[30]. It will no doubt have become apparent as this judgement is read that I am unable to find that the facts of this petition have satisfied me that they establish special circumstances to justify the making of an exception to the presumption of finality. I therefore refuse the petition and do not give permission to interfere with the finality of the burial of ashes of Mrs Dawson. I appreciate this is not the outcome the petitioners had hoped for and will no doubt cause upset. I hope that they will understand my reasoning and that whilst they may not agree with the decision which was taken by their father at the time of their mother’s passing, Trowbridge was at the time considered to be her final resting place and should so remain.

Comment

Petchey Ch. concluded his judgment by stating:

“[37]. It might be appropriate for the [Legal Advisory Commission] to look again at its advice and if perhaps it disagrees with the view that I have expressed in this judgment to expand what it says about the matter. I recognise that this may be a matter about which opinions may differ and that a change in the advice (and with it, received practice as regards ashes derived from cremation) may be a matter of some significance…”.

[1] “Strewing” is pouring of the ashes directly into the ground, or directly onto the ground before immediately covering them over with earth.

[2] Those considered were: Lapse of Time, [15] to [18]; Change of location, [19] to [22]; Local/Family Support, [23];  Family Grave/Method of re-interment, [24] to [29].