THE creation of a family grave was not itself a sufficient
reason to justify a faculty for the exhumation of remains from
consecrated ground, as an exception to the norm of the permanence
of Christian burial, writes Shiranikha Herbert, Legal
Correspondent. But an intention to re-inter in a family grave was a
relevant factor that could militate in favour of a faculty's being
granted, since it was expressive of family unity and an economical
use of grave space, Chancellor Philip Petchey said in the
Consistory Court of the diocese of Southwark when granting a
faculty for exhumation.
Bernadette Jillian Peters applied for a faculty to exhume the
remains of her late husband, Mark Peters, from a grave in the
consecrated part of Plumstead Cemetery, in Abbey Wood, Greenwich,
and to re-inter them in a grave in the consecrated part of Rye
Cemetery in East Sussex.
Mr Peters was killed in a road accident in December 2004, after
which Mrs Peters suffered a breakdown, and her mother made all the
funeral arrangements. His remains were buried in the consecrated
part of the nearest cemetery that could accommodate burial.
It had been Mr Peters's intention to move to East Sussex with
his wife and two young sons. At the time of his death, he and his
wife had been looking for a house in Peasmarsh. In March 2006, Mrs
Peters and her children moved to Peasmarsh, and she had a permanent
job in East Sussex.
Mrs Peters had existing family connections with that area, and
there were two adjacent graves in Rye Cemetery which contained the
remains of family members. Mrs Peters's parents had reserved a
plot opposite those graves, and Mrs Peters herself had reserved a
plot next to her parents' plot. She intended to inter her
husband's remains in that plot, and also wished her own remains to
be interred there in due time.
Mrs Peters said that, if she had been in a position to make a
decision after her husband's death, she would have arranged for his
remains to be stored so that she could have deferred making a
decision about their ultimate destination until she was
The norm of Christian burial was permanence, and permission to
exhume human remains from consecrated ground was granted only
exceptionally. The test for the grant of a faculty was the
identification of exceptional or special circumstances. One of the
factors relevant to the grant of a faculty was the creation of a
family grave, although that in itself was not a sufficient reason
for justifying exhumation.
The Chancellor said that, in any case that involved the
consolidation of a family grave, the question arose why the
remains were not interred in that grave in the first place, and
that, in any case that involved the creation of a family grave, the
question must be asked why a family grave was not established at
an earlier date. The practical problem for Chancellors of
Consistory Courts was how much weight should be attached to the
creation or consolidation of a family grave.
As a matter of principle, the weight attaching to that factor
should be much the same in all cases. If there were reasons why the
remains were not interred in the family
grave in the first place, or why the family grave was not
established, and/or there were other factors that justified a
departure from the norm of permanence, then the fact that the
exhumation was to a family grave counted as an additional factor in
its favour, as being the economical use of grave space and
expressive of family unity.
Mr Peters had died suddenly, without expressing any view about
where he wanted to be buried. Mrs Peters brought her petition after
acquiring a permanent home in East Sussex. The move of Mr Peters's
remains would facilitate the establishment of a family grave.
Where an important part of the justification for permitting
exhumation flowed from the circumstances following a personal
tragedy, the court might more readily be satisfied that permission
should be given, the Chancellor said.
The tragedy could not, of itself, justify the grant of the
petition, he said, but those who had to consider the judgments of
the consistory courts would not view the sympathetic treatment of
cases involving personal tragedy as undermining the norm of the
permanence of Christian burial.
A PETITION to remove remains from a family grave and
bury them elsewhere was refused by Chancellor Mark Bishop in
Lincoln Consistory Court, writes Shiranikha Herbert, Legal
Rita Ann Hubbert died in June 2010, and was buried in
Boston cemetery, in a family grave that contained the remains of
her parents, Annie and George Beck. Mrs Hubbert's husband's
intention was that his remains would, in due course, be interred in
the same grave. At the time, no other member of the family objected
to the interment of Mrs Hubbert's remains in the family grave, or
said they wanted to be interred there, too.
Since Mrs Hubbert was buried, however, a son-in-law and
a daughter-in-law of Annie and George Beck had
died. Their remains were placed in the family grave, and their
spouses indicated that they, too, wished to be buried
Annie and George Beck had had seven children. If all of
them, and their spouses, wanted to be buried in
the family grave, Mr Hubbert feared that there might not
be room for him. For that reason, he wished to
exhume his wife's remains, and re-inter them elsewhere so that his
remains could be interred with hers.
Boston Cemetery is under the supervision of the
municipal authorities, but the family grave is in the consecrated
part of the cemetery; so it was within the jurisdiction of the
Consistory Court. The court had to consider the principles by which
an exhumation from consecrated ground is permitted: namely, that
the burial of human remains is permanent, and exhumation will not
be permitted unless there are special circumstances.
One of the special circumstances is the use of family
graves, which are encouraged because they both
express family unity and demonstrate an
economical use of land for burials.
What was being sought was the reversal of a family-grave
application, the Chancellor said, because the petitioner wanted to
remove his wife's remains from the family grave so that they could
be together in a different plot. No one had objected to that, but
what was sought was the reversal of the presumption of
If the faculty were granted, the very opposite would be
demonstrated. By permitting the removal of the remains, it would
manifest the problems raised by the then Bishop of
Stafford, the Rt Revd Christopher Hill, in a paper, A Note on
the Theology of Burial in Rela-tion to some Contemporary
Questions: "The commending, entrust-ing, resting in peace does not
sit easily with 'portable remains', which
suggests the opposite: reclaiming, possession and restlessness:
a holding on to the 'symbol' of human life rather than a giving
back to God."
The faculty was refused.