Exhumation is acceptable in exceptional cases, says court

30 September 2016

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AN EXCEPTION to the presump­tion of the permanence of Christian burial could be applied in a case where exhumation would be regarded as acceptable by right-thinking members of the Church at large, the Consistory Court of the diocese of Durham ruled, granting a faculty for exhumation on the application of a member of the Chinese Christian community, which adopted a different approach to a family grave.

The petitioner, Sam Tai Chan, applied for a faculty for the exhumation of the remains of her husband, Tin Fat Chan, from a plot in Saltwell Cemetery, Gateshead, and their reinterment in what she described as “a family grave” in a plot in Grangetown Cemetery, Sunderland. Both plots were in consecrated ground.

Mr Chan died on 29 September 1978 and was buried on 2 October 1978. Because of the lapse of time, the funeral directors said there could be no guarantee that all the remains could be removed from the grave. As a result, it was agreed that a specialist team would carry out the exhumation.

At the time of death, Mr and Mrs Chan had not been long in this country. Mrs Chan stated that she was unprepared for her husband’s death, and that she was unaware of the consequences of the funeral arrangements made on her behalf, and of the regulations governing consecrated ground.

After her husband’s death, Mrs Chan moved from Gateshead, and set up the family home in the area of Monkwearmouth. She and her family became members of the local Chinese Christian Church, many of whose members were buried in Grangetown Cemetery. A number of Mrs Chan’s relatives were also buried there.

She now argued that her hus­band’s burial in Gateshead was “a mistake by virtue of misinforma­tion”, and that her family desired “a true family burial space”. It became apparent, however, that, despite her reference to reinterment “in a family grave”, any reinterment would be in a single grave next to that reserved for Mrs Chan.

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The bereavement manager dealing with the matter informed the Chancellor, Canon Rupert Bursell QC, that “according to the beliefs and tradition within the Chinese Christian community, each grave is used only once”.

The Chancellor said that he did not find the law to be applied in reaching his decision to be straight­forward. Having reviewed the authorities on the subject, he concluded that the test to be applied was that set out in the decision of the Chancery Court of York in the 1998 case involving Christ Church, Alsager.

The different ethnic approach to burial within the Chinese Christian Church provided a good and proper reason for exhumation, that reason being likely to be regarded as acceptable by (hypothetical) right-thinking members of the Church.

If his decision were otherwise, the Chancellor said, the Chinese Christian Church “might well feel deeply aggrieved that exhumations may be allowed for non-Chinese Christians for burial — albeit in one grave — while, for cultural reasons, that possibility is denied to their own community”. The right-thinking Anglican would regard such a situation to be divisive, and therefore to be avoided if possible.

The lapse of time was not determinative, bearing in mind the lack of guarantee about recovering all the remains, that a specialist firm was to carry out the work, and that, depending upon ground conditions, such a guarantee might often not be possible.

The Chancellor directed that a faculty should issue for exhumation.

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