Judgment Search

Exhumations

Display:

The petitioner, a Vietnamese, wished to exhume the remains of his father, which had been buried in Putney Vale Cemetery according to Vietnamese Buddhist rites, and to re-inter the remains in another part of the cemetery, next to the grave of his mother. The reason the Petitioner gave for his petition was that, "According to our Vietnamese tradition and culture, the eldest son of the family will have to carry out the exhumation of the deceased father's body 10 years after it was first buried, and then to re-bury it." The Chancellor granted a faculty. The judgment includes a consideration of Articles 8 and 9 of the  European Convention on Human Rights.

The Chancellor granted a faculty to authorise the exhumation of the remains of a Buddhist who had been buried in 1994 in a consecrated  part of Southern Cemetery Manchester, so that the remains could be cremated and the ashes placed with the ashes of his wife, who died in 2016, in the Buddhist Temple of Manchester Fo Guan Shan. At the time of the interment in 1994, the family was unaware that the burial was in a Church of England consecrated part of the cemetery, and also at that time there was no facility in Manchester for the storage of cremated remains in accordance with the Buddhist faith.

In her will, Mrs. Florence Pearson impliedly expressed a wish to have her ashes and those of her late husband scattered off Beachy Head. To this end the petitioner, as Mrs. Pearson's executor, applied for permission to have Mr. Pearson's ashes exhumed from the Robin Hood Cemetery. The Chancellor did not find any sufficient exceptional reason to justify him granting a faculty.

The petitioner requested permission to exhume the cremated remains of her late husband from the churchyard at Aby and reinter them in the cemetery in Horncastle. The reasons she gave for wanting to move her father's remains were: (1) the access to the churchyard was over a field, which was difficult in wet weather; (2) rabbits had burrowed under her father's grave; (3) she wished her father's ashes to be moved to a cemetery nearer to her, which would make it easier for her family to visit the grave; and (4) she felt that her late husband was 'alone' in the churchyard at Aby. Applying the principles in Re Blagdon Cemetery [2002], the Chancellor did not find any special reasons to justify him granting a faculty.

The Chancellor found special reasons to authorise the exhumation from a cemetery of the cremated remains of a Chinese national, and re-interment in another cemetery, where an area of graves was reserved for members of the Chinese community, though the remains were not to go in a family grave as such: "If my decision were otherwise, the Chinese Christian Church might well feel deeply aggrieved that exhumations may be allowed for non-Chinese Christians for burial in family surroundings (albeit in one grave) while for cultural reasons that possibility is denied to their own community." The judgment contains a detailed discussion of the decisions of the appellate courts and the rule of precedent.

The Chancellor refused to grant a faculty to allow the remains of the petitioner's father to be exhumed and reinterred in another cemetery with the remains of the petitioner's mother: "A wish (however understandable) to reverse a decision made several years ago, which although regretted since was perfectly valid at the time it was made, is not sufficient, in my judgment, for these purposes.

Faculty granted for exhumation. Principles in Re Blagdon Cemetery [2002] considered and special circumstances found.

The petitioner's mother's ashes had been interred in the South London Cemetery in 1993. The intention of the family at that time had been that the interment would be temporary, until the petitioner's father died, when the remains of both parents would be buried together. They had not been informed that the interment had been into consecrated ground, and that a faculty would be needed to authorise the removal of the petitioner's mother's remains at a later date. Before he died, the petitioner's father expressed a wish to be buried, rather than cremated. The petitioner wished to have her mother's ashes exhumed and interred with her father's body in Epsom Cemetery. The Chancellor decided that a mistake had been made and that he should authorise the exhumation and reinterment as requested. He did not insist that the ashes should be reinterred in consecrated ground.

In 1999 the petitioner reserved a grave in the cemetery next to the grave of his late sister. He was given a deed recording the reservation. In 2016 he discovered that someone had been buried in the grave he had reserved. He complained to the burial authority, who said the register had been amended to record a different grave number. The Chancellor was satisfied that the petitioner had not agreed to a change of reserved grave. The petitioner, first directly and then through solicitors, failed to persuade the burial authority to arrange an exhumation and reinterment in another grave. He therefore applied for a faculty. Whilst accepting that there had been an administrative mistake by the burial authority, the Chancellor decided not to grant a faculty, because of "the possibility of real consequences" for the family of the person buried in the grave and the alternative possibilities for the petitioner to be buried in another nearby grave, or in the same grave as his sister, or "the prospect of exhuming [his sister's] remains so that they could be reburied in a plot with space to the side".

The petitioner wished to exhume his wife's remains from a grave (intended as a double grave for his wife and himself) in an area which was regularly waterlogged in winter, and to reinter the remains in another part of the same churchyard. The Chancellor decided that there were exceptional circumstances to justify the grant of a faculty for exhumation and reinterment.