Ecclesiastical Law Association

Ecclesiastical Law Association

Judgments: Exhumations

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Faculty refused for exhumation and retention of cremated remains at home, but faculty granted for exhumation and reinterment of ashes in Roman Catholic churchyard.

 

The petitioner, a Buddhist, applied for three faculties to permit the exhumation of the remains of his brother, who died in 1991, his grandmother, who died in 1993, and his father, who died in 2014, all Budhists, from the consecrated area of Putney Vale Cemetery, for reinterment in the unconsecrated part of the cemetery. After the third interment, the petitioner had been advised by his family that, according to Buddhist tradition, it was inappropriate to bury Buddhists in consecrated ground and that it would cause "bad Karma" for the family. The petitioners sought to rectify what his family perceived to be a mistake. Faculties granted by the Chancellor: " I am glad that I have felt able to grant these petitions. The faith of Church of England is very different to the Buddhist faith and its views about the appropriate treatment of the remains of those who have died evidently diverge but the views of Mr Khiet Kham Hong and his family are genuinely held and are appropriately treated with respect."

 

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.

The judgment contains a discussion of the principles to be considered upon an application for a Faculty to authorise large-scale exhumation from a disused burial ground, in order to allow for deconsecration and redevelopment. At the end of the judgment is a note by Timothy Briden.

Faculty refused for the exhumation from a cemetery of the cremated remains of a child buried in 1960, and reinterment in the churchyard of a parish to which the parents had moved. The Chancellor took into account the time since the interment, and also did not accept the Petitioner's argument that the deterioration in the care of the cemetery justified him in making an exception to the presumption against exhumation.

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.