The petitioner sought a faculty to exhume the cremated remains of her brother buried with her parents.
The starting point was a rebuttable presumption against exhumation. In Re Christ Church, Alsager [1999] Fam 142, the Chancery Court of York asked whether there was ‘a good reason and proper reason for exhumation, the reason being likely to be regarded as acceptable by right thinking members of the church at large’. In Re Blagdon Cemetery [2002] Fam 299, the Court of Arches stated a faculty for exhumation would only be granted in circumstances that formed an exception to the general rule of permanence.
The court considered the status of both Alsager and Blagdon; whether it was bound by either and whether the two decisions could be reconciled (and if not, whether any differences would alter the outcome of the present case). On the question of binding precedent, it considered Professor Norman Doe's 2019 lecture ‘The Court of Arches: Jurisdiction to Jurisprudence – “Entirely Settled”?’ [see (2021) 23 Ecc LJ 322–341], and the then Dean of Arches’ response [see (2021) 23 Ecc LJ 342–348]. In any event, section 14A of the Ecclesiastical Jurisdiction and Care of Churches Measure 2018 provided that a decision of the Court of Arches or the Chancery Court was to be treated as if it were a decision which the other Court had itself taken. A later decision should prevail if it differs from an earlier decision, irrespective of the province concerned. Accordingly, the court followed the decision in Blagdon.
The court considered that in any event, the decisions in Alsager and Blagdon could be reconciled: the hypothetical ‘right thinking member of the church at large’ was a judicial construct, like ‘the man on the Clapham omnibus’, and could be taken to adhere to the theology on burial set out in the article ‘The Theology of Burial’ by Bishop Christopher Hill (relied on by the court in Blagdon).
In considering what may amount to ‘exceptional reasons’, the court pointed out that, analogously with cases in the civil courts, factors which may not be singularly sufficient to rebut the presumption of permanence may, with other factors, cumulatively amount to exceptions.
In refusing a faculty in the present case, the court cited difficulties in evidence concerning family rifts; whether the interment had been carried out on an improper or secretive basis; the failure to identify a permanent resting place for the remains to be exhumed; and the decision of the European Court of Human Rights in Elli Poluhas Dödsbo v Sweden (no. 61564/00, 17 January 2006), which concluded (on a concession that a restriction on exhumation was an interference with Article 8 rights, post-dating Blagdon which suggested that Article 8 was not engaged) that the sanctity of the grave was such an important and sensitive issue that states should be afforded a wide margin of appreciation. [Naomi Gyane]
