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Family rift over remains does not justify exhumation, court rules

02 June 2023


St George’s, Unsworth

St George’s, Unsworth

A FAMILY rift was not sufficient to be regarded as exceptional circumstances so as to justify the exhumation of cremated remains interred in a family grave in consecrated ground, the Consistory Court of Manchester has ruled, refusing a faculty for exhumation.

The petitioner, Susan Bennett, had sought the faculty to exhume the cremated remains of her brother, Brian Yates, from their parents’ grave.

When Mr Yates died, another of his sisters, Jacqueline Haslam, enquired about the interment of his remains at the graveyard of St George’s, Unsworth. The Vicar of St George’s, the Revd Donna Williams, told Mrs Haslam that the graveyard was full, but that, if the family already had an existing grave, it might be possible to inter her brother’s ashes there.

Mrs Haslam mentioned that her parents were interred in the graveyard. Having assessed whether there was space, Ms Williams informed Mrs Haslam that it would be possible to inter her brother’s ashes alongside those of his parents. At the time of making the funeral arrangements, she was unaware of the petitioner’s existence, or that Mrs Haslam had not arranged the burial of her parents’ remains.

The interment took place in May 2020, and, owing to the restrictions imposed during the pandemic, only Mr Yates’s daughter, Bethany Maher, and Mrs Haslam were present.

The petitioner became aware of the interment of her brother’s ashes in their parents’ grave when an issue arose relating to the addition of his name on the gravestone. She sought the exhumation of his ashes, referring to an alleged incident of violence on his part against his mother and his aunt, his excessive drinking, and his estrangement from the family. The petitioner said that she and other unnamed members of the family considered that their parents’ grave had been violated and desecrated, and felt no longer able to visit the grave so long as her brother’s remains were interred there.

Mr Yates’s daughter opposed the exhumation. She considered the grave as her father’s “final resting place”, and believed that, despite his alleged estrangement from the family, her grandparents would have wanted their son to be buried alongside them — particularly, she said, in the light of the fact that he cared for his mother when she was suffering from Alzheimer’s.

The Chancellor, the Worshipful Gregory Jones KC, attempted to bring the parties to mediation with the Archdeacon of Bolton, who was willing to act as mediator. The petitioner was not willing to attend a mediation session, however, saying that it would be too stressful for her. The Chancellor therefore determined the petition without a hearing or any legal representation.

The disturbance of human remains that have been laid to rest in consecrated ground is allowed only as an exception to the general presumption of the permanence of Christian burial.

A good and proper reason for permitting exhumation was described by the Chancery Court of York in the 1998 case of Christ Church, Alsager, as a reason that was “likely to be regarded as acceptable by right-thinking members of the Church at large”. The Court of Arches of Canterbury, in the case of Blagdon Cemetery, stated that a faculty for exhumation would be only “exceptionally granted”, and that that meant “forming an exception”.

Despite the Chancellor’s request for further information on the nature of the family conflict, no further details of Mr Yates’s alleged assault on his mother and aunt, and the aftermath of that incident, had been provided. Consequently, there was very limited material before the Chancellor, and no contemporary documentation.

The Chancellor said that the current situation was unpleasant for all concerned, but a court must be careful not to conflate a family rift and vague allegations of an isolated incident with abuse that would give rise to serious psychological distress.

He referred to a previous case that had involved the interment of an alleged sexual abuser in a family grave, in which the court had granted the petition for exhumation on the grounds of the psychological distress caused to other family members.

It was also important, the Chancellor said, to emphasise that the focus should be on the relationship of deceased persons with one another, not whether the deceased was estranged from other family members. In that regard, Mrs Maher’s statement that Mr Yates cared for his mother as she suffered from Alzheimer’s suggested that they at least remained on good terms before her death.

In the absence of evidence that he was a poor or exploitative carer, it did at least suggest that Mr Yates had some loving feelings for his mother, and that those feelings were reciprocated by her, taking into account as best possible the general impact of dementia on her mental and emotional faculties and her ability to form relationships.

The absence of any concrete evidence pointing to an estrangement from his parents militated against granting a faculty for exhumation, on the basis that interment in the same plot in effect created an undesired family grave.

The Chancellor concluded that the petition for the exhumation of Mr Yates’s remains did not meet the test of exceptional circumstances envisaged by the Court of Arches; nor did it amount to a sufficiently good reason by reference to a “right-thinking” member of the Church at large as envisaged by the Chancery Court of York.

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