Exhumation, reburial and judicial precedent: Re Sam Tai Chan

The issue of exhumation and reburial of remains in consecrated ground has been considered yet again, in Re Sam Tai Chan [2016] ECC Dur 2, Bursell Ch. The judgment is particularly interesting for including a detailed discussion of the relationship between the Arches Court of Canterbury and the Chancery Court of York and the rule of precedent in the ecclesiastical courts.

The facts

Mrs Sam Tai Chan sought the exhumation of the remains of her late husband, Tin Fat Chan, from a consecrated grave in Saltwell Cemetery, Gateshead for re-interment in another consecrated grave in Grangetown Cemetery, Sunderland. She also sought the removal of the gravestone from Saltwell Cemetery and its subsequent destruction and disposal “in a dignified and sensitive manner” [1]. Tin Fat Chan died in 1978 when the couple had not been long in the UK [2]. After his death, Mrs Chan moved to Sunderland, where “she and her family have become stalwart members of the local Chinese Christian Church, many of whose members (as well as a number of the petitioner’s relatives) are already buried in the Grangetown Cemetery” – and she wished to be buried with them herself [3]. She argued that the burial in Gateshead had been “a mistake by virtue of misinformation and her family’s desire for a true family burial space” [5].

The law

In his judgment, Bursell Ch pointed out [7] that the first appellate decision in relation to exhumation cases was Re Christ Church, Alsager [1998] 3 WLR 1394; the second was Re Blagdon Cemetery [2002] Fam 299; the third was Re St Nicholas, Sevenoaks [2005] 1 WLR 1011. The first was a decision of the Chancery Court and the other two were decisions of the Arches Court of Canterbury [7]. Because the two courts have “separate, concurrent or co-ordinate appellate jurisdictions”, the question then arose “as to how the rules of precedent apply within the two provinces” [9].

Both Norman Doe, in The Legal Framework of the Church of England (Clarendon, Oxford, 1996 page 156), and para 1032 of Halsbury’s Laws of England, 5th edn vol 34: Ecclesiastical Law, Contributing Editors Rupert Bursell QC and Roger Kaye QC (Butterworths Lexis, London, 2011) conclude that the decisions of a provincial court binds only in that province. The Arches Court is not bound by the decisions of the Chancery Court, nor vice versa [9]. Mark Hill, however, suggests in para 1.34 of Ecclesiastical Law (OUP, Oxford 3rd edn 2007) that

“In recent years … the strict rules of precedent have been tempered by an increasing pragmatism in producing homogeneity in judicial decisions both at first instance and in the two appeal courts. A number of factors have led to this: first the increase in the reporting of decisions; secondly the borrowing of reasoning and the application of guidelines enunciated in consistory courts of other dioceses; thirdly the adoption and approval by appeal courts of first instance decisions; fourthly the change in composition of the Court of Arches in faculty appeals into a body comprising the Dean of the Arches together with two diocesan chancellors; and fifthly the de facto elision of the Court of Arches and Chancery Court of York into what is effectively a single court of appeal for both provinces” [10]

Bursell Ch was inclined to adopt the view expressed in The Legal Framework and Halsbury:

“… there can be no single court of appeal for both provinces (whether de facto or otherwise) for cases not involving doctrine, ritual or ceremonial unless, and until, the Ecclesiastical Jurisdiction Measure 1963 has been amended. In addition and however inconvenient it may seem, in the meantime the present law as to precedent remains until it is overruled by higher authority or by legislation (cp) the Ecclesiastical Jurisdiction Measure 1963, sections 45(3) and 48(5)(6)’ [10].

In Re St Nicholas, Sevenoaks [at 1014H-1015C], the Arches Court had quoted with approval the dictum of McClean Ch in Re Hing Lo, decd (unreported) 26 June 2002 at para 12 that, because all chancellors were judges of each court and the office of Dean of the Arches and Auditor were by statute held by the same person, it was realistic to treat “the Arches Court of Canterbury and the Chancery Court of York as being for the purposes of the doctrine of precedent, two divisions of a single court”. “Accordingly,” declared the Arches Court, “consistory courts in each Province should have regard to decisions of an appellate court, whether or not given in their Province, and a later decision should prevail if it differs from that given in an earlier decision irrespective of the Province concerned”.

That, suggested Bursell Ch, was wrong:

“… being a decision of the Arches Court, it cannot in law or in logic overturn the rules of precedent at least in so far as the Chancery Court is concerned, however inconvenient the result may be. Indeed, such an observation was strictly ultra vires in so far as the Chancery Court was concerned and, to take it to its logical conclusion, would mean that each appellate court might otherwise overrule the other appellate court even though (as has been seen) those courts are themselves bound by their own decisions. To take the opposing view is to drive a coach and horses through the long accepted rules of precedent within the hierarchy of the ecclesiastical courts. Indeed, the result of the observation, if of legal authority, would in practice result in a merging of the two appellate courts and be contrary to the provisions of section 1(2) of the Ecclesiastical Jurisdiction Measure 1963. Such a result can only be achieved by a Measure passed by the General Synod or by other legislative authority” [11].

The judgment

The two appellate courts adopted two slightly different approaches:

  • In Re Christ Church, Alsager, the Chancery Court’s test for permitting an exhumation was this: “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?” [Alsager at 1401D-E].
  • In Re Blagdon Cemetery the Arches Court’s test was rather more restrictive: “Lawful permission can be given for exhumation from consecrated ground … However, that permission is not … given on demand by the Consistory Court. The disturbance of remains which have been placed at rest in consecrated land has only been allowed as an exception to the general presumption of permanence arising from the initial act of interment” [Blagdon at [20].

Bursell Ch observed [13] that the test in Alsager “may in a few cases be slightly less draconian in its application from the petitioner’s point of view” and that if he were applying the Blagdon approach he might not reach the same conclusion in favour of exhumation. In the circumstances, however, he concluded that he should adopt the test in Alsager, “although bearing in mind the presumption of permanence in relation to any burial” [26] and found in favour of the petitioner on the following grounds:

“[T]he different ethnic approach to burial within the Chinese Christian Church provides a good and proper reason for exhumation, that reason being likely to be regarded as acceptable by (hypothetical) right thinking members of the Church at large. If my decision were otherwise, the Chinese Christian Church might well feel deeply aggrieved that exhumations may be allowed for non-Chinese Christians for burial in family surroundings (albeit in one grave) while for cultural reasons that possibility is denied to their own community; in my view the right-thinking Anglican would regard such a situation to be divisive of the Church at large and therefore to be avoided if at all possible” [27].

He directed that a faculty should issue for exhumation.

Comment

In a sense, comment is superfluous: however, Sam Tai Chan is yet another recent judgment in which exhumation for reburial has been sought in the case of a member of a family that emigrated to the UK from the Far East. See, for example, Re Quoc Tru Tran, deceased [2016] ECC Man 2 and Re Putney Vale Cemetery [2015] Southwark Cons Ct: both cases concerned the burials of Buddhists in consecrated ground – the interments were made shortly after the families’ arrival in the UK and linguistic difficulties at the time led to misunderstandings of the nature of this aspect of burial law. In all three cases, the sensitivity of the courts to the different ethnic approaches to burial in the Chinese and Vietnamese communities seems to us to be entirely appropriate.

Cite this article as: Frank Cranmer, "Exhumation, reburial and judicial precedent: Re Sam Tai Chan" in Law & Religion UK, 9 September 2016, http://www.lawandreligionuk.com/2016/09/09/exhumation-reburial-and-judicial-precedent-re-sam-tai-chan/

5 thoughts on “Exhumation, reburial and judicial precedent: Re Sam Tai Chan

  1. Whilst Bursell Ch’s decision in Re Sam Tai Chan is to be welcomed for various reasons it would have been unfortunate if the forum had been the Court of Arches and the decision had gone the other way in reliance on the Blagdon approach. Given increasing geographical mobility not least from the Far East to the UK but also between different parts of the UK since the appeal courts for the two Provinces were established, is it not now time to take serious steps towards a unified court of appeal?

  2. Insofar as it’s proper for me to offer an opinion at all – not being an Anglican – I’d have thought that there was a very strong case for a unified appeal court. But I suspect that it’ll be a long time coming.

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