Chancery Court of York: Owen (Auditor), Coningsby and Bursell Chs, July 1998
The appellant sought to appeal a decision in Chester Consistory Court (3 September 1997, unreported) in which Lomas Ch had refused to grant a petition for the exhumation of the cremated remains of the appellant's late father.
Procedure:
The court acknowledged that there was no express provision in the Ecclesiastical Jurisdiction (Faculty Appeals) Rules 1965, SI 1965/251, for a hearing on written representations even if (though not the case here) the original hearing had been so disposed of pursuant to rule 25 of the Faculty Jurisdiction Rules 1992, SI 1992/2882. Relying on its inherent right to regulate its own procedure the court gave directions for the matter to be so determined. Here there were no objectors, no other interested parties and the appellant did not desire to make representations in person. 'In such a case the cost of a hearing would be quite unjustified and possibly oppressive unless this court believed that it would be assisted by an oral hearing.' In this instance it did not.
Further, the court declined to admit in evidence a letter from the crematorium manager. Under rule 8( 1) of the 1965 rules, further evidence can be adduced only in 'exceptional circumstances', and this normally means that it could not have been adduced in the lower court: see Re St Gregory's, Tredington [1972] Fam 236, [1971] 3 All ER 269, Ct of Arches.
Guidelines on Exhumation:
The court cited Re Dixon [1892] P 386; Re Matheson [1958] 1 All ER 202, [1958] 1 WLR 246, Cons Ct; and Re Church Norton Churchyard'[1989] Fam 37, sub nom Re Atkins [1989] 1 All ER 14, Cons Ct, and affirmed the established principle that human remains should not be regarded as portable. The court commended the guidance given by McClean Ch in Re Stocks, deceased (1995) 4 Ecc LJ 527 which it reformulated, but only in minor ways, as follows:
1. Once a body or ashes have been interred in consecrated ground, whether in a churchyard or in a consecrated section of a municipal cemetery, there should be no disturbance of the remains save for good and proper reason.
2. Where a mistake has been made in effecting the burial, for example a burial in the wrong grave, the court is likely to find that a good reason exists, especially when the petition is presented promptly after the discovery of the facts.
3. In other cases it will not normally be sufficient to show a change of mind on the part of the relatives of the deceased, or that the spouse or another close relative of the deceased has subsequently been buried elsewhere. Some other circumstance must usually be shown.
4. The passage of time, especially when this runs into a number of years, may make it less likely that a faculty will be granted.
5. No distinction is to be drawn between a body and cremated remains, except insofar as the processes of decay may affect a coffin more than a casket containing ashes and may also affect the sensibilities of a congregation or neighbours.
6. It is immaterial whether or not a Home Office licence has already obtained.' The Question for Chancellors:
'Bearing in mind that it is the applicant who seeks to disturb the accepted norm we are satisfied that the critical question for the chancellor is: Is there a good and proper reason for exhumation, that reason being likely to be regarded as acceptable by right thinking members of the Church at large? If there is, he should grant a faculty. If not, he should not.
"To the end of assisting the chancellor to a proper decision we recommend that when the application is made it should be accompanied by a plan of the graveyard or cemetery showing the church building (if appropriate), any residential dwellings within close proximity, and the situation of the grave from which the remains are to be removed. Upon receipt of the application the chancellor should also consider whether he needs a resolution of the PCC.
'The chancellor will need to bear in mind that the applicant must prove the good and proper reason to the usual standard applicable in faculty cases, namely on a balance of probabilities. Various factors will help him in deciding whether or not this has been done. It is not possible to list all the factors which may be relevant. However, experience has shown that some factors re-occur frequently, some arguing for a faculty and some against.
'Although mistaken advice by a funeral director or anyone as to the likelihood of a successful petition in itself is unlikely to carry much weight, a mistake by the applicant or by a third party, such as an incumbent, churchwarden, next of kin, an undertaker, or some other person, e.g. as to locality, may be persuasive to the grant of a faculty. Other matters which may be persuasive are medical reasons relating to the applicant; that all close relatives are in agreement; and the fact that the incumbent, the PCC and any nearby residents agree. That there is little risk of affecting the sensibilities of congregations or neighbours may be persuasive although in practice this is not likely to apply to municipal cemeteries. The passage of a substantial period of time will argue against the grant of a faculty. Public health factors and improper motives, e.g. serious unreasonableness or family feuds will be factors arguing against the grant. If there is no ground other that that the applicant has moved to a new area and wishes the remains also to be removed, this is likely to be an inadequate reason. In normal circumstances if there is no intention to re-inter in consecrated ground this will be a factor against the grant of a faculty. If the removal would be contrary to the intentions and wishes of the deceased; if there is reasonable opposition from members of the family; or if there is a risk of affecting the sensibilities of the congregation or the neighbourhood, these will be factors arguing against the grant of a faculty.
"The chancellor will need to weigh up all the relevant pointers, for and against, whether illustrated here or not, and then answer the question which we have stated."
The appeal was dismissed with no order for costs.
Note: Since this judgment provides guidance for the determination of future applications in both provinces, the salient part has been reproduced verbatim. It is not now intended to summarise any of the recent first instance decisions on exhumation which have been overtaken by this judgment. Note, however, R Bursell, 'Digging Up Exhumation (1998) 5 Ecc LJ18-33.
(1999) 5 Ecc LJ 214-215
