Ecclesiastical Law Association

Ecclesiastical Law Association

Judgments: Exhumations

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Cyril Jones was buried in the churchyard of St. Margaret Orford in 1990. His widow, Esther, who died in 2015, was buried in Fox Covert Cemetery. Mrs. Jones, during her lifetime, realised that there would be no room for her to be buried with her husband, and she had expressed a strong wish to her family that she should be buried in the cemetery and that the family should arrange for her husband's remains to be moved and buried with her. The Chancellor granted a faculty for exhumation on the basis that "Mrs. Jones widow made a mistake in interring her late husband's remains in a full garden, a mistake which she regretted almost from the outset; secondly, that Mrs Jones delayed seeking exhumation on the grounds of her own personal belief that she felt that such would be inappropriate in her lifetime; and thirdly, there is now a desire to create a family grave."

This was an interim judgment relating to a petition whereby the petitioner sought authority to have the remains of her father, who died in 1976, exhumed and cremated, and then interred with the cremated remains of her mother, who died in 2016. It was proposed that the remains of the petitioner's parents should be taken and buried in a cemetery in Scotland where other members of the family were buried. The Chancellor requested the petitioner to produce further information before making a decision.

This judgment should be read in conjunction with In the matter of David Bell deceased [2016] ECC She 3, which was an interim judgment, where the Chancellor requested further evidence before making a decision as to whether to allow the exhumation and cremation of the remains of the petitioner's father, who died in 1976, and the interment of those remains with the cremated remains of the petitioner's mother, who died in 2016, in a cemetery in Scotland. The Chancellor decided that there were "good and proper reason(s) which would be likely to be regarded as acceptable by right thinking members of the Church at large to allow the petition and permit this exhumation."

The Petitioner wished to exhume the remains of her husband from an Oxfordshire churchyard and reinter them in Antibes, where her husband had spent much of his life. The Chancellor declined to grant a faculty, being unable, following the guidelines laid down in In re Blagdon Cemetery [2002] Fam 299, to find any sufficient justification for allowing exhumation.

The petitioner wished to exhume the cremated remains of her mother from the churchyard at Mapledurham, Oxfordshire, and reinter them in a plot she had reserved in the cemetery at Chester le Street, County Durham, so that the remains of her mother, father and herself could all be interred in the same grave. The Chancellor determined to grant a faculty (subject to seeing written evidence that the grave at Chester le Street had been reserved), as one of the guiding principles of In re Blagdon Cemetery [2002] Fam 299 was that an exception to the general rule against exhumation could be made to allow the remains to be exhumed in order for them to be reinterred in a family grave.

The Petitioner, of Italian, wished to have her husband's cremated remains exhumed and interred in a family mausoleum in Italy, where she would also intend her own ashes to be interred. The reason for the request was that after the petitioner's death there would be no surviving family members in England to look after the grave, whereas the family in Italy would continue to look after the family mausoleum. Faculty granted.

The cremated remains of a wife and her husband had been interred in the same plot in 1971 and 2003 respectively, and there was an upright memorial was placed over the plot. In 2004 a single story extension to the church had been built, and the memorial stone was within inches of the extension. On two occasions since 2004, thieves had used the memorial as a stepping stone to gain access to the church roof and steal the lead. On the second occasion, the memorial had fallen over. The deceased's daughter wished to have her parents' remains and memorial moved to another part of the churchyard. The Chancellor determined that the need to reduce the risk of further lead theft and of damage to the roofs of the church (i.e., public benefit) justified the movement of the remains and the memorial: "This is wholly different from those cases where exhumation is sought for private purposes".

Two petitions and two pending petitions relating to the exhumation of cremated remains, currently stored in a municipal cemetery on a temporary basis in non-biodegradable urns beneath plaques, on the expiration of the initial licences.  The chancellor considered the need for a faculty in such a situation, and indicated that he would be minded to grant a faculty where it could be shown that the original interment was never intended to be permanent. Faculties would also be granted in two cases on the basis of reinterment in a family grave elsewhere.

A faculty was sought to permit the exhumation of the remains of a husband, in order that they might be interred with the remains of his wife in another grave in the same cemetery. His wife had expressed a wish in her will to be buried with her husband, but her husband's remains had been interred in a family grave where there had previously been three interments of bodies and three interments of cremated remains, and there was no room left to inter the remains of his wife. The sons were agreeable to their parents' remains being interred together in a new grave and wished in due course to be buried in the same family grave. The Chancellor granted a faculty, being satisfied that the circumstances constituted an exception to the normal rule that remains are not to be disturbed.