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 settled.

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 Correspondent.

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 there.

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 per­manence.

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.