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Law takes precedence in mix-up over reserved burial plot

17 July 2015

iSTOCK

THE Consistory Court of the diocese of Oxford was called on last month to deal with the distressing consequences when, owing to error by a parish council, a body was buried in a grave space which had been granted to another family.

In May 2014, Mr and Mrs Reginald King, a couple in their eighties, contacted Twyford Parish Council to inquire about reserving a double-depth burial plot within the consecrated burial ground managed by the parish council.

Their request was for a plot for themselves; and they wished the plot to be as near as possible to the grave of their son Alan, who had died some years earlier. The plot next to their son’s grave was available, and it was then reserved for Mr and Mrs King.

A "Grant of Exclusive Right of Burial" was issued, stating that right of burial was conferred on Mr and Mrs King in consideration of the sum of £280, and the grave space in question was E5, in Twyford Parish Council burial ground.

The grant was made by the parish council under section 214 of the Local Government Act 1972, and the Order made by the Secretary of State under section 214. It was expressed as being for 99 years, and was signed by Andrea Curtis, the clerk to the council, and dated 10 May 2014.

In October 2014, Twyford Parish Council was asked for a burial plot by Bicester Funerals, in order to carry out the burial of Patricia Watkins. Ms Curtis said that, "due to human error, the wrong plot number was given, and Mrs Watkins was interred in the plot reserved for the King family."

The parish council remained unaware of the error until January 2015, when it was contacted by another son of Mr and Mrs King’s to say that someone had been buried in his parents’ plot. The discovery that Mrs Watkins had been buried in plot E5 was made by a member of the King family.

When the error was discovered, attempts at mediation between the King family and the Watkins family were made. Those attempts failed, and the King family submitted a petition to the Oxford Diocesan Registry seeking a faculty to authorise the disinterment of Mrs Watkins’s body, with the intention that it should be reinterred in the same consecrated burial ground, but in a different grave space. The petition was sent to the near relatives of the late Mrs Watkins.

The diocesan registry was then contacted by Mr and Mrs King’s son, to say that his father was terminally ill and in hospital. In the light of that information, the proceedings before the Oxford Consistory Court were expedited.

The court was provided with a letter from Mrs King, who said that, in January 1998, her son Alan had died. She said that it had taken her many years to come to terms with that loss, and she had been on anti-depressants for many years. She and her husband had reached an age when they wanted to start getting things in order, she said, and they wished to reserve a burial plot next to their beloved son, who was deeply missed.

She understood how tragic the situation was for the Watkins family, she said, but "no matter how hard and devastating the matter is, we want to lie in peace with our child. We don’t want to upset anybody, but, knowing that we will be laid to rest with our son, we will hopefully be able to enjoy the time we have left of life".

The Watkins family strongly objected to the petition, and said that the late Mrs Watkins regarded her last resting place as sacrosanct. Mr Watkins said that he considered that a person’s final resting place should be regarded as absolute.

The Watkins family pointed out that Mr and Mrs King had waited 16 years after the death of their son before reserving a plot next to his. They also pointed out the availability of alternatives, including the use of the grave of their son Alan, by deepening it, or the selection of another plot near by.

They also pointed to the failure of Twyford Parish Council to mark the plot as one that had been subject to a grant of exclusive right of burial, and drew attention to the effect that the court proceedings and any exhumation that might follow would have on the mental well-being of members of their family.

Ms Curtis, clerk to the parish council, gave sworn evidence to the court. She said that the reserved grave in this case had not been marked, because that was not the standard practice at the time. She said that the parish council had held an extraordinary meeting to consider the court proceedings, but did not wish to express a view on the outcome.

The Chancellor of Oxford, the Revd Alexander McGregor, said that previous authority from the Court of Arches of Canterbury did not provide any guidance as to how petitions such as the present one, where exhumation was opposed, ought to be dealt with. Particularly relevant was the distress and anguish caused to both families.

The Chancellor said, however, that the court was not in a position to weigh up the different levels of anguish that would be caused to the two parties, and, in any case, distress and anguish were very much subjective matters for the persons suffering from them.

Since the Consistory Court was a court of law, the Chancellor said, the most weighty factor must be the legal position. The assignment of plot E5 for Mrs Watkins’s burial amounted to a breach of a legally enforceable right which had lawfully been granted to Mr and Mrs King under the Local Government Act 1972 and the Local Authority Cemeteries Order. Article 10(6) of that Order states that "No body shall be buried or cremated remains interred or scattered in or over any grave or vault in which an exclusive right of burial for the time being subsists, except by or with the consent in writing of the owner of the right."

The Chancellor said that the burial of Mrs Watkins’s body by the funeral directors in plot E5 was in clear breach of article 10(6), and was therefore an unlawful act on their part. The Chancellor emphasised that it arose as a result of an unfortunate mistake; neither of the families was in the wrong, and both families were victims of accidental circumstances for which they had no responsibility.

So far as the law was concerned, the Kings were doing no more than seeking to secure a right that had been properly granted to them under legislation approved by Parliament and the Secretary of State, and there was nothing to suggest that they were doing that for anything other than entirely proper motives.

The Chancellor ordered that the faculty was granted, and said to the Watkins family how sorry he was for the distress which had inevitably arisen. Twyford Parish Council was ordered to pay the costs of the hearing and the expenses incurred by the Watkins family.

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