Ecclesiastical Law Association

Ecclesiastical Law Association

Judgments: Exhumations

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The petitioner sought the exhumation of the cremated remains of her father, interred in 1977, in order to comply with the wish of her late mother, who died in 2013, that the ashes of both parents might be scattered together on the banks of the river Tyne in the village where the couple had met, courted and been married. The Chancellor determined that he was unable to grant a Faculty for two reasons: (1) beginning with the presumption that Christian burial should be regarded as final, and therefore exhumation should only be allowed in exceptional circumstances, the Court of Arches, in Re Blagdon Cemetery [2002], expressly considered the case of a change of mind on the part of the relatives who had brought about the original interment and stated that this “should not be treated as an acceptable ground for authorising exhumation”; (2) where remains have been committed to the care of the Church, they should only be disturbed if the Court can be satisfied that appropriate arrangements are in place for the continuing protection of the remains.

The petitioner applied for permission to exhume the remains of her baby, who had died fifteen years previously aged 12 weeks, following an operation to repair a heart defect. At the time of the baby's death, the petitioner and her former partner had lived in Lancashire, where the baby had been buried, but the petitioner (and her former partner) now lived in Yorkshire. The petitioner claimed that owing to her state of health it was difficult to visit the grave in Lancashire. Her former partner objected to the proposed exhumation and became a party opponent. The Deputy Chancellor, after considering the decisions in Re Christ Church, Alsager [1999] Fam 142, Re Blagdon Cemetery [2002] Fam 299, and other exhumation cases, determined that moving the remains of the baby simply so that they were nearer to where the petitioner now lived was not an exceptional reason for authorising an exhumation and he accordingly refused to grant a faculty.

The cremated remains of the petitioner's parents were both buried in separate plots in the cemetery, her mother having died in 2006 and her father in 2015. Her mother's remains had been buried in the grave of her grandmother and her sister. The owner of the grave in which the petitioner's mother's remains were interred (the daughter of the sister) refused to allow the remains of the petitioner's father to be buried in the same plot as his wife, even though the he had expressed in his will a desire to be buried with his wife. The petitioner therefore sought to exhume the remains of her mother and have them reinterred in the grave of her father. Having considered the guidelines in Re Blagdon, as to the circumstance in which exhumation may be allowed (which the Chancellor regarded as non-exclusive), he determined that there were sufficient exceptional circumstances to justify the grant of a faculty to authorise the exhumation and reinterment.

Faculty for exhumation refused. Chancellor: "Advancing years and/or changes of residence and/or an inability or unwillingness to visit what is deemed to be a final resting place cannot, without more, justify exhumation."

Faculty granted for exhumation of the remains of a stillborn child from Wandsworth Cemetery and re-interment in Winchester, where the parents now live. Per Petchey Ch.: "I will grant this petition because of the fact that Mr and Mrs Rees did not have a permanent home in Wandsworth at the time of the burial of their stillborn son and because of the tragic circumstances of that stillbirth, with which Mrs Rees is still trying to come to terms. These reasons represent circumstances which make it appropriate to make an exception to the norm of Christian burial."

In 1987 the petitioner had reserved for herself a cremation plot in the cemetery immediately next to the plot in which were interred the cremated remains of her parents. In 2016 she noticed that an interment had taken place in the plot which she had reserved. This situation had come about because in 2015 the burial authority had by mistake granted an exclusive right of burial in the same plot to someone else. The petitioner therefore applied for a faculty for exhumation of the cremated remains interred in the plot she had reserved in 1987. The Chancellor determined that this was an appropriate case in which a faculty should be granted, owing to the administrative error which had occurred.

Faculty granted for exhumation and re-interment in the same grave at a lower depth, in order to make room for further burials.

The petitioner's father died in 1985 and his body was interred in West Norwood Cemetery. The petitioner's mother originally intended to be buried next to her husband. The petitioner's mother died in 2014. Before she died, she expressed to the petitioner a wish to be buried in a family grave in Ireland and to have her husband's body exhumed, cremated and buried with her in the family grave. Considering the the guidelines set out in the judgment in Re Blagdon Cemetery [2002] Fam 299, the Chancellor determined that reinterment in a family grave, and the consequent release of two grave spaces in South London, where burial space was at a premium, would allow him to treat this application as an exception to the general policy against exhumation, and he according granted a faculty.

Faculty for exhumation refused. Moving remains nearer to where the family lives not an exceptional circumstance to justify the grant of a Faculty.