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No move for a father’s grave to private land, chancellor rules

30 June 2023


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THE Consistory Court of the diocese of Worcester has refused to grant a faculty for the exhumation of cremated remains from consecrated ground and their reburial in unconsecrated ground on private land.

The petitioner for the faculty was Gillian Rose Ramsey. She sought permission for the exhumation of the cremated remains of her father, Gerald Dainty, who was interred in Astwood Cemetery, Worcester, in July 2013. The petitioner wished to place his remains, together with the existing grave and headstone, in privately owned farmland in Gloucestershire.

The motivation for that was that the petitioner’s mother, widow of the deceased, had died. At present, her ashes were being held at the home of the petitioner’s brother, awaiting a decision on how and where they were to be permanently laid to rest. The petitioner wished to bury her mother’s cremated remains with those of her father, but not in the location where he was buried. The petitioner and her brother intended that, in due course, their own remains would be laid to rest with those of their parents in the same grave site on private land.

The first principle in the law relating to exhumation which binds a Consistory Court is that, if exhumation is permitted, it should be conditional on the remains being reburied in a suitable permanent location. Land consecrated as a burial ground was suitable for that purpose because it was set apart from other use, and under the protection of the Consistory Court to prevent the disturbance of human remains that had been laid to rest.

Until the creation, in the 19th century, of licensed burial grounds under the control of the Secretary of State and maintained by the local authority, the Consistory Court would habitually decline to permit exhumation of human remains from consecrated ground for reburial in unconsecrated ground. It could now be assumed that unconsecrated burial ground maintained by the local authority was suitable for use for reburial. But no such assumption could be assumed as to the suitablility of other unconsecrated ground.

In the present case, the proposed site for the relocation of the remains was on private land owned by the petitioner. The Chancellor of Worcester, the Worshipful Jacqueline Humphreys, said that she was “not able to say that this location is suitable for burial such that remains entrusted to consecrated ground should be permitted to be relocated there”. There was no suggestion that the location had previously been used as a private family burial ground, and there was no existing tomb or grave marker or other indication that the land was set apart from ordinary use.

The Chancellor had not been given evidence that the site formed part of a long-established family estate that was unlikely to pass out of family ownership or was subject to a trust limiting its use. It was “therefore reasonably foreseeable”, the Chancellor said, that, over the years, the land would “pass into the ownership of people unrelated to the deceased, who may not know that it has been used as a burial site, or who may be unwilling to take responsibility for maintaining it”.

An order permitting exhumation was exceptional, and the Consistory Court could grant the order only as an exception to the general presumption that Christian burial was permanent. There were no exceptional circumstances in the present case, the Chancellor said.

The cemetery plot for Mr Dainty had been chosen at a time when the land where the proposed unconsecrated family grave was intended was already in family ownership, so that his ashes could have been buried or scattered there. The Chancellor was told that he had not expressed any particular wishes about how or where he wanted his remains to be laid to rest.

The decision to bury Mr Dainty’s remains in the cemetery was not made against his widow’s wishes at the time. It was only later that she came to dislike visiting the cemetery, and expressed a wish not to have her own remains buried there. There had been a significant delay of about seven years between his burial and the petition for exhumation.

There is nothing in the Chancellor’s decision which prevents the petitioner from scattering her mother’s ashes on her own land, subject to the observation of any applicable secular law. But the matter was different in regard to her father’s ashes, as they had already been committed to consecrated ground, where the presumption of permanence applies.

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