Chester Consistory Court; Lomas Ch, April 1998

The petitioner, Mrs Annie Cooper, aged 82, presented two petitions. The first sought a faculty for the exhumation of the cremated remains of her late husband from a section of the churchyard of St Wilfrid, Davenham, and their reinterment in a full grave space in a separate part of the same churchyard. The other sought the reservation of a full grave space for herself so that her body could in due course be buried with the cremated remains of her late husband. The petitioner and her late husband lived in a neighbouring parish whose residents had no right of burial in Davenham churchyard, but they were treated preferentially. During a recent interregnum a practice had developed (contrary to the churchyard regulations and deprecated by the chancellor) of burying cremated remains in full grave spaces. This had since stopped. It was the evidence of the petitioner and her son that she was aware of the option of retaining her husband's ashes for future interment and that she preferred to be buried not cremated. The petitioner's applications were not supported by the rector or the PCC because of the breach of the churchyard regulations, the lack of special circumstances for reservation and the pastoral consequences of establishing a precedent. Applying the Church of England (Miscellaneous Provisions) Measure 1976, s 62, and having regard to Re West Pennard Churchyard [1991] 4 All ER 124, [1992] 1 WLR 32, the chancellor concluded that absent the concurrence of the incumbent he ought not to grant a faculty reserving a grave space. He was referred to Re St Nicholas's, Baddesley Ensor [1983] Fam 1, [1982] 2 All ER 351, and Re St Mary, Dodleston, Churchyard [1996] 1 WLR 451. The exhumation application was also refused, regard being had to Re Church Norton Churchyard [1989] Fam 37, sub nom Re Atkins [1989] 1 All ER 14, and Re Edith Smith deceased [1994] 1 All ER 90, sub nom Re St Peter's Churchyard, Oughtrington [1993] 1 WLR 1440. It was reiterated by the chancellor that each case regarding exhumation must depend on its own particular facts and that it was something which should be done sparingly and only in special circumstances. The chancellor did not accept that a mistake over the disposal of the remains in the terms envisaged in Re John Stocks deceased (1995) 4 Ecc LJ 527 and Re Holy Trinity, Freckleton (April 1995) 4 Ecc LJ 429 had been made.

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(1998) 5 Ecc LJ 134-135