Judgment Search

Exhumations

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The petitioners wished to have the cremated remains of their father exhumed from Bourne Abbey and reinterred in a cemetery in Harlow, where their mother's cremated remains had been interred following her recent death. Upon consideration of the guidelines laid down in the Court of Arches decision in Re Blagdon Cemetery 2002 Fam 299, the Chancellor determined that this was a case where an exception could be made to the presumption that burial should be treated as final, as the remains of the petitioners' father would be reinterred in a family grave.

A faculty was granted for exhumation of a body from one part of a cemetery, where it had been interred contrary to the wishes of the deceased's wife, and reinterment near other family graves in the same cemetery. The Chancellor found that there had been "an error in administration", which justified him in granting a faculty.

The petitioner wished to move her mother's cremated remains from Calverley churchyard to Otley Cemetery. The Chancellor could find no special circumstances to enable him to grant a faculty.

The Petitioner and his wife, having moved from Castle Bytham to Grantham, wished to exhume the cremated remains of their late son and re-inter them in Grantham Cemetery. The grounds for making the application were: (1) the petitioner and his wife, due to their age and frailty, were unable to visit the grave at Castle Bytham; and (2) the Petitioner and his wife had purchased a grave at Grantham Cemetery with the intention that their son's remains should be placed their and their own cremated remains would be placed in the same grave in due course. The Chancellor stated that, following the principles laid down in Re Blagdon Cemetery [2002], he could not grant a faculty on the first ground, but he granted a faculty on the second ground, because a family grave had been established.

A Faculty was refused for the exhumation from the local cemetery of the cremated remains of the petitioner’s late husband, for re-interment in the same grave as the petitioner’s late son in the St. Mary’s churchyard, Bognor Regis. The Chancellor could find no special reason or circumstance to justify him overriding the normal presumption that burial should be final. 

The Petitioners' daughter died aged 10 in 1982 in tragic circumstances, and the petitioners had no part in the funeral arrangements, which included interment of ashes in a consecrated part of Cheshunt Cemetery. Upon making enquiries in 2017 about the possibility of having her remains buried next to those of her daughter, the mother discovered that the ground in which her daughter's remains were interred was consecrated. The petitioners, both atheists, would not have agreed to the interment of their daughter's remains in consecrated ground, had they been aware of the situation at the time of their daughter's death. And in view of her atheistic beliefs, the mother could not contemplate being buried in consecrated ground next to her daughter. The Deputy Chancellor determined that, notwithstanding the passage of time since the interment in 1982, this was a case of exceptional circumstances based on a fundamental mistake at the time of the interment. The Deputy Chancellor therefore granted a faculty for exhumation and reinterment in an unconsecrated part of another cemetery.

The petitioners' baby had tragically died aged two days in 2004. The child's cremated remains had been interred next to the graves of other children in a consecrated area of Cheshunt Cemetery. The petitioners had been happy with the location of their baby's grave and with a Christian service conducted by a priest, though they stated in papers before the hearing that they were "from non-religious families". The petitioners were now planning to move to a town 28 miles away and had in mind moving abroad in 5 or 6 years' time. They now regretted the decision to have the baby's ashes interred and wished to have the ashes exhumed, so that they could keep the ashes with them wherever they moved. The mother intended in due time to be buried with her baby's ashes.  Following the guidance of the Court of Arches in Re Blagdon Cemetery [2002] Fam 299 (“….a change of mind as to the place of burial on the part of relatives or others responsible for the interment should not be treated as an acceptable ground for authorising exhumation ...” and “... remains are not to be regarded as 'portable' at a later date, because relatives move elsewhere and have difficulty visiting the grave ...”), the Deputy Chancellor could find no special circumstances to justify the grant of a faculty.

The Dean of Arches granted leave to appeal against the decision of the Deputy Chancellor in Re Cheshunt Cemetery (No. 2) [2018] ECC StA 2 not to allow the exhumation of the cremated remains of the petitioners' baby son. Leave was granted on two grounds: (a) the Deputy Chancellor was wrong ... to categorise the Appellants’ case as “one of change of mind rather than a (potentially operative) type of mistake ... namely a lack of understanding as to the significance of interment in consecrated ground”; and (b) the Deputy Chancellor thereby failed to consider whether this mistake was capable of constituting exceptional circumstances within the law as laid down in Re Blagdon Cemetery [2002] Fam. 299 and/or to explain why this was not so.

The appellant's father died in 1981 and was cremated. His ashes were interred in
the Garden of Remembrance in the churchyard of Christ Church Alsager. The
appellant's mother died in 1995 and her body was buried in the same churchyard,
about 90 ft away from her husband's ashes. The appellant wanted his parents' remains to rest together in the same grave, and he therefore applied for the exhumation of his father's ashes, so that they could be put in his mother's grave. The Chancellor refused the petition and the appellant appealed. The decision of the Chancery Court of York was that when deciding a request for exhumation, the Chancellor should consider whether there was a good and proper reason for exhumation on a balance of probabilities, and the judgment sets out various circumstance which might be persuasive to allow an exhumation. However, in the present case the Court found that the Chancellor's decision was not in error: the father's remains had remained undisturbed for some 17 years, and the two places of interment were within the same consecrated curtilage and separated by only a very short distance. The appeal was accordingly dismissed.

The petitioner wished to have the cremated remains of her brother, Colin Berry, exhumed from Clayton Cemetery and reinterred in Queensbury Cemetery, where the Berry family had exclusive burial rights in two adjacent plots. Mr. Berry had died of a gunshot wound during a police raid in 2013. Following his death there had been a lack of communication between Mr. Berry's widow and the Mr. Berry's own relatives. Shortly after the death, Mr. Berry's widow moved away without paying the funeral bill from her husband's estate, and attempts to trace her had failed. The Chancellor found that there were exceptional circumstances in which to authorise exhumation, but the faculty was to be subject to a condition that the area for reinterment in Queensbury Cemetery should first be consecrated (to which Bradford City Council had agreed), before the remains were reinterred there, in order that the Court could maintain jurisdiction in the unlikely event of Mr. Berry's widow subsequently seeking to set aside the Chancellor's decision