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Faculty granted for reburial after daughter’s plea

22 April 2016


Family grave: the cemetery at Murrisk Abbey, Co. Mayo

Family grave: the cemetery at Murrisk Abbey, Co. Mayo

THE desire to honour the wishes of a deceased parent, combined with the fact that there would be reburial in a family grave, may be exceptional circumstances sufficient to enable the court to depart from the presumption that Christian burial was final, Chancellor Philip Petchey ruled in the Consistory Court of the diocese of Southwark.

He granted a faculty for the exhumation of the remains of Edward Tarrant from the consecrated part of West Norwood Cemetery, in order that they might be cremated and reinterred in Murrisk Abbey Cemetery, in County Mayo, Ireland.

Mr Tarrant, who died in 1985, aged 57, had not made a will, and had expressed no views about arrangements to be made after his death in respect of his remains. On a few occasions when the matter had been discussed, he had expressed the wish, perhaps with a degree of jocularity, that he wanted to be cremated and his ashes put in an urn on the mantelpiece and interred in the family grave in Murrisk Abbey when his widow visited.

That suggestion did not commend itself to his widow, Anne Tarrant, who was a Roman Catholic and did not believe that cremation was appropriate. Since, at the time, she could not afford to have her husband’s body taken to Ireland, she purchased a double plot in the consecrated part of West Norwood Cemetery, with the intention of her own remains being buried there when the time came.

That decision was supported both by her priest and the undertaker as being the best way forward. Moreover, she derived comfort from visiting the grave regularly.

In 2007, Mrs Tarrant suffered a severe stroke, and began to think again about her own circumstances. She decided that she wanted her own remains to be buried in the family grave at Murrisk Abbey Cemetery. There was now no financial impediment to that.

Regarding her husband’s remains, she desired that they be exhumed, cremated, and also interred in the family grave in Murrisk Abbey. She had changed her mind about cremation, and that also accorded with her husband’s wishes. She made her daughter, Mary Rhead, and her husband promise that they would comply with her wishes.

Mrs Tarrant died in 2014, and, in accordance with her wishes, her remains were buried in Murrisk Abbey Cemetery. Mrs Rhead applied for the faculty for the exhumation of her father’s remains.

Permission to exhume remains once they have been interred in consecrated ground is granted only exceptionally, the norm of Christian burial being permanence. Hence the Chancellor had to question whether there were reasons for making an exception to that general rule.

Historically, the Roman Catholic Church has opposed cremation. Even today, Canon Law commended burial, and cremation had been forbidden until 1963. The Chancellor said that he could understand that, in 1985, when Mr Tarrant died, his widow might have viewed cremation as unacceptable, and that 30 years later her views might have changed in the light of the change generally in attitudes to cremation in the Roman Catholic Church.

“Change of mind” is not of itself an acceptable justification for an exception to the norm of the permanence of Christian burial. Nevertheless, the Chancellor said that the change of mind came about in the light of a change in objective circumstances: namely, the changing attitude of the Roman Catholic Church to cremation. Thus, all other things being equal, the Chancellor said that he would be sympathetic to a petition to permit exhumation exceptionally on the basis that, but for the general attitude to cremation prevailing in the Roman Catholic Church, Mr Tarrant’s remains would have been cremated and taken to Ireland as was now proposed.

The matter was not that simple, however, the Chancellor said. Mrs Tarrant’s views about cremation could not have changed completely, since she herself did not wish her remains to be cremated; nor were they. When that point was raised, Mrs Rhead said that her mother had been influenced by her father’s expressed wish that he be cremated, and by the fact that it would be the most simple and convenient way for his remains to be taken to Murrisk Abbey Cemetery.

The Chancellor said that that raised the possibility that the true foundation for the petition was not so much the changed attitudes to cremation, but the fact that, in 1985, Mrs Tarrant could not afford the expense of taking her late husband’s body to Ireland for burial.

This was not the strongest case for making an exception to the norm of permanence, the Chancellor said, particularly since, during her lifetime, Mrs Tarrant enjoyed the benefit of being able to visit her late husband’s grave, and that now the reason for exhumation was not so much for any benefit it would confer on the living as honouring a promise given to the dead.

None the less, the Chancellor said, he understood that Mrs Rhead wanted to honour her mother’s last wishes, and that the exhumation would be to a family grave.

The Court of Arches, in the Blagdon Cemetery case ([2002] Fam 299), encouraged family graves as expressive of family unity, and also encouraged the economical use of grave space. If Mrs Rhead’s petition were granted, it would free two grave spaces, and grave space was at present at a premium in south London.

Taking all those matters into account, the Chancellor decided that this was properly a case where an exception should be made to the norm of Christian burial, and directed that a faculty should issue.

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