Exhumation of correctly buried body

Despite the apparent uncomplicated nature of recording past and prospective burials, it is not uncommon for errors to occur, particularly in the case of reserved burial plots. This is acknowledged in the Department of Constitutional Affairs’ Guide for Burial Ground Managers (2005) which notes [at para. 3.2]

Double-bookings of the same space, and burial in the wrong grave, are sadly not uncommon. They reflect very badly on the burial ground managers, incur additional trouble and expense to put right . . . . . . and cause unnecessary and avoidable distress to the friends and relatives of the deceased. The orderly burial in the correct grave of the correctly-identified individual is the least the bereaved can expect.”

In Re Blagdon Cemetery [2002] Fam 299; [2002] 3 WLR 603, the Court of Arches addressed the issue when determining the relevant factors to be considered in granting a faculty for exhumation to rectify such errors, and observed [at para.36(iii)]

“[s]ometimes genuine mistakes do occur, for example, a burial may take place in the wrong burial plot in a cemetery or in a space reserved for someone else in a churchyard.  In such cases it may be those responsible for the cemetery or churchyard who apply for a faculty to exhume the remains from the wrong burial plot or grave.

Faculties can in these circumstances readily be granted, because they amount to correction of an error in administration rather than being an exception to the presumption of permanence [of burial], which is predicated upon disposal of remains in the intended not an unintended plot or grave.

A mistake may also occur due to a lack of knowledge at the time of burial that it was taking place in consecrated ground with its significance as a Christian place of burial.”

Nevertheless, the ecclesiastical courts continue to be faced with requests for exhumation in these circumstances, which are often resolved through the exhumation and reburial of the “wrongly buried” body.  However, a different solution was sought in Re St Peter Dunchurch [2013] Coventry Cons Ct (Stephen Eyre Ch) where although a burial plot for Mrs P-W had been reserved and authorized by faculty so that on her death she could be buried alongside her husband, a wholly unrelated person had been buried there.

Whilst one option would have been to petition for the mistakenly-interred remains to be exhumed and re-interred elsewhere, this was not sought by the incumbent and the P-W family since the family of the person buried there was unaware of the mistake and they did not wish to cause them distress.

In these unusual circumstances, the Court granted permission for the exhumation of Mr P-W who had been buried in the correct plot, his re-interment elsewhere in the churchyard and the reservation of a “new” adjacent plot for Mrs P-W.

Comment

An arrangement such as this is dependent upon: the availability of two adjacent plots within the churchyard that are acceptable to the family concerned; and the exercise of the chancellor’s discretion, which in this case was subject to an assessment of the practicability of conducting a seemly exhumation.  The absence of any involvement of the family of the remains buried in the adjacent grave is a further facilitating factor.

With regard to the second point, the chancellor explained the two-stage process laid down in Re Blagdon Cemetery [para. 33], each stage of which required the Consistory Court to have regard to “the straightforward principle that a faculty for exhumation will only be exceptionally granted”.

In considering whether the matters raised were capable in law of amounting to special circumstances, (the first stage), the chancellor identified this as a “classical” type of mistake as in Re Streatham Park Cemetery) (2013), (Southwark); Re St John Walsall Wood (2010), (Lichfield);  Re Jean Gardiner (2004) (Carlisle); and Re St Luke Holbeach Hurn  (1996), (Lincoln).

Although the chancellor has discretion in the second stage – considering whether exhumation is justified in the light of all the circumstances of the particular case – the starting point in exercising that discretion is the presumption of the permanence of Christian burial. Nonetheless, he concluded that this is a case where exceptional circumstances exist justifying an exhumation, the particular factors leading to that conclusion being:

  • the legitimate long-standing intention for Mr and Mrs P-W to be buried alongside each other; and
  • the fact that the use of the reserved plot for the interment of a person other than Mrs P-W was a mistake, and although it would be possible for the mistake to be remedied by the exhumation of the remains currently in this plot, this too would operate against the presumption of the permanence of interments.

The chancellor therefore directed:

  • the faculty reserving the original plot for Mrs P-W to be set aside.
  • a faculty issue authorising the exhumation of the remains of Mr P-W and their re-interment in a different plot.
  • a faculty issue reserving a “new” adjacent plot.

Whilst the judgement in Re Jean Gardiner [2003] Carlisle Cons Ct (Tattersall Ch) would not have been binding, it is interesting to note that in this case a faculty was granted to exhume the “wrongly” buried remains of Mrs Jean Gardiner in an adjacent reserved plot, despite the objections of her family.  In particular, the chancellor rejected arguments in relation to Article 8 of the European Convention on Human Rights and Article 1 of the First Protocol on the grounds, inter alia, that there was no property in human remains.

However, this judgement preceded Elli Poluhas Dödsbo v Sweden [2006] ECHR 38 and R (Burrows) v HM Coroner for Preston [2008] EWHC 1387 (Admin). A similar situation has arisen at St Andrew, Thringstone, and is due for consideration by the Leicester Consistory Court.  However, the current positions of the parties involved suggests that the case might end up in the Court of Arches on appeal.

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