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Ecclesiastical Case Reports
Re Durrington Cemetery
(Chichester Consistory Court: Hill Ch, June 2000)
Exhumation - reburial in Jewish cemetery - Human Rights Act 1998
The petitioners sought an order for the exhumation of the remains of their deceased relative who had been buried in consecrated ground in a part of the municipal cemetery at Durrington which had been consecrated in accordance with the rites of the Church of England. The deceased was Jewish but had married outside the Jewish faith and his widow had made the arrangements for burial which was performed by a URC minister. Upon the widow's emigration to Australia, the petitioners wished to effect the exhumation of the deceased's remains and their reburial in a Jewish cemetery in accordance with Jewish law. Neither the widow nor the Borough Council objected and the Burial Society of the Federation of Synagogues had given its consent for the reinterment of the deceased's remains in Rainham Jewish Cemetery. The petitioners relied upon a submission by an ecclesiastical judge of the Beth Din. The Archdeacon of Chichester commented upon the theological issues and obtained the views of the Council of Christians and Jews. In applying the decision of the Chancery Court of York in Re Christ Church, Alsager [1999] Fam 142, the chancellor was of the opinion that although eighteen years had lapsed since the burial, the delay in applying for an order for exhumation was fully explained through principled deference to the wish of the widow to visit her late husband's grave. The similarity between a Christian and Jewish understanding of burial militated against the objection, in Alsager to the remains being reinterred in ground which was not consecrated in accordance with the rites of the Church of England. The chancellor took account of recent decisions of other consistory courts concerning religious pluralism: Re Lake Cemetery, Isle of Wight (Portsmouth Consistory Court, 23 April 1999, unreported) and Re St Hugh Bermondsey (2000) 5 Ecc LJ 390. The chancellor had regard to the Human Rights Act 1998, which was not yet in force, section 6(1) of which imposes upon all courts a duty to act in a manner compatible with the European Convention on Human Rights. The chancellor considered that there would a risk of the court acting contrary to Article 9 of the Convention were it to deny the freedom of the orthodox Jewish relatives of the deceased to manifest their religion in practice and observance by securing the reinterment of his cremated remains in a Jewish cemetery in accordance with Jewish law. The chancellor addressed the question formulated in Alsager at 149C namely, '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?' and answered it in the affirmative.
Note: This case is fully reported at [2000] 3 WLR 1322
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