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Family denied right to exhume remains so graves can stay in 'square' block together 

19 May 2017


Delayed proceedings: Fairmile cemetery

Delayed proceedings: Fairmile cemetery

THE Consistory Court of the diocese of Oxford refused to grant a faculty for exhumation after — owing to an administrative error — a burial had taken place in a grave reserved for members of a family who wished to keep family burials in a square block in the consecrated part of a cemetery. A personal preference for keeping family burials in a particular configuration was not a special circumstance that outweighed the presumption of the permanence of Christian burial.

In February 2012, the body of Constandinos Leventis was buried in plot 192 in the consecrated part of Fairmile Cemetery, which is owned and managed by Henley-on-Thames Town Council. His widow then acquired, from the town council, an exclusive right of burial in that plot.

Subsequently, other members of the family acquired grants of exclusive rights of burial in respect of adjacent plots, numbers 172 and 173, so that the family could be buried together in a square configuration.

In April 2015, owing to an administrative error, the body of Victor Miller was buried, at double depth so as to accommodate the body of his widow in due course, in plot 172, and the Miller family was granted exclusive right of burial there. The exclusive right of burial in plot 172, however, had already been granted to Alexis Leventis, the son of Constandinos Leventis.

Alexis Leventis sought a faculty for the exhumation of the body of Mr Miller from plot 172. The widow and two daughters of Mr Miller objected. Mr Leventis argued that what had happened amounted to a mistake of the sort that was identified in the Blagdon Cemetery Case [2002] Fam 299 as an exception to the presumption of the permanence of Christian burial.

He said that he was doing no more than seeking to secure a right that legally belonged to him, and that there was nothing to suggest that he was doing that for anything other than entirely proper motives.

The case for the Miller family was that none of the exceptions to the presumption of the permanence of Christian burial identified in the Blagdon case applied, and, although a mistake had been made by the town council, the circumstances did not justify exhumation. An alternative plot adjacent to the plots reserved by the Leventis family was available, and over a year had elapsed between Mr Miller’s burial and the bringing of the proceedings, during which time the Miller family had reasonably assumed that no action would be taken.

The town council accepted sole blame for what had happened, and publicly apologised to both families. Nevertheless, it had decided that it could not support the petition of Mr Leventis, and was therefore a party opponent whose principal part was to assist the court.

The Chancellor, the Revd and Worshipful Alexander McGregor, said that Mr Miller was buried where his family intended him to be. The misdescription of the vacant plot in the documentation issued by the town council was not material to the family’s intention. This was not, therefore, a case, the Chancellor said, where the presumption of permanence of Christian burial did not apply, and where faculties could readily be granted.

The Chancellor considered that the factors weighing against Mr Leventis’s case were, first, although the burial of Mr Miller was an infringement of Mr Leventis’s legal rights, the grant of an exclusive right of burial in the consecrated part of a cemetery took effect subject to the general law, including ecclesiastical law. Ecclesiastical law and the doctrine of the Church of England presumed that Christian burial was final and permanent, and that its finality and permanence was to be overborne only where there were special circumstances.

Second, the wish of the late Mr Leventis to have his family buried with him in a square configuration did not represent a religious or cultural practice, but was a personal preference, while the opposition of the Miller family to the exhumation of Mr Miller’s body was founded on Christian theology and the doctrine of the Church of England.

The exhumation would cause distress to Mr Miller’s widow and other members of his family. The wishes of the late Mr Leventis, while they could not be satisfied in the terms in which he had expressed them, could be approximately satisfied by the acquisition by the Leventis family of alternative plots which would enable them to be buried together in a different configuration.

The proposal to exhume Mr Miller’s remains in order to fulfil the personal preference of the late Mr Leventis that he and his family be buried, not just together, but in a particular configuration, came close to being described as exhumation for sentiment or convenience.

Third, while the lapse of time alone would not be determinative, the delay of approximately one year between the discovery that Mr Miller’s body had been buried in plot 172, and starting proceedings for a faculty — much of that delay being undue delay, in the sense that there was no good reason for it — was significant in this case, the Chancellor said.

During that period, the Miller family came to know plot 172 as the late Mr Miller’s resting place. With no formal steps having been taken to alter the position for such a period, they were reasonably entitled to assume that such steps were not going to be taken.

The Chancellor ruled that to grant a faculty in this case would not be justified as an exception from the law and doctrine as to the permanence of Christian burial, and he exercised his discretion by refusing to grant the faculty. The town council accepted that it should pay the court costs, and the costs, including legal costs, of the other parties.

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