A RECTOR who moved cremated remains in a churchyard without first obtaining a faculty for exhumation has been ordered by the Consistory Court of the diocese of Portsmouth to pay the costs of preparing the court’s judgment.

The matter arose when a parishioner’s ashes were to be interred in the rector’s church’s graveyard in a plot that already contained the ashes of another family member. A relative of the deceased visited the churchyard the day before the interment and pointed out to the assistant curate who was to conduct the interment service that the hole that had been prepared for the interment of the ashes was not in the correct plot.

The curate consulted the rector, who advised that a hole should be dug in the correct plot, and that was done. The next day the family were present when pre-interment prayers were said at the correct plot, but they departed before the interment took place. The curate then placed the ashes, in a bag, in the hole that had been dug on the family’s instructions.

After the family had left, the verger insisted that the ashes should have been placed in the plot where a hole had originally been dug. The verger and the curate consulted the rector, who considered the matter and, having looked at the graveyard plan, concluded that a mistake had been made and that the ashes should be moved.

The ashes were then picked up from the plot where they had been interred and poured from the bag into the hole that had been dug first. The family was then informed, and they said that that was not the intended grave.

The rector and curate worked into the night, trying to determine whether a mistake had been made. The problem appeared to have stemmed from the graveyard plan, which divided the ground into plots that might contain a number of independent interments of cremated remains. There had been confusion over which physical memorial items on the ground related to which interment.

The day after the interment, the rector, without consulting the archdeacon or the diocesan registry, and without obtaining a faculty, dug up the ashes and reinterred them the same day in the correct plot, with the family present.

The family asked for an explanation about what had happened, including a reflection by the rector on the lessons that had been learned. The rector wrote a long and detailed letter explaining the circumstances, apologising without reservation, and detailing how procedures would be reviewed to avoid a recurrence of the same situation, including procuring a three-way agreement between the rector, verger, and family about the location of graves before they were dug.

The family accepted the apology. The rector refunded the parish’s element in the statutory interment fee, and sought a confirmatory faculty for the exhumation of the ashes.

The diocesan Chancellor, the Worshipful John Summers, said that he was satisfied that the rector had made a genuine mistake about the location for the interment of the ashes and had taken “all reasonable steps after the mistake came to light to deal with the situation in an honest and pastorally sensitive manner”.

It was clear, however, the Chancellor said, that the rector should have obtained advice from the diocesan registry and also notified the archdeacon. It was a clear principle of ecclesiastical law that Christian burial was permanent, and exhumation was to be permitted by the Consistory Court only in exceptional circumstances. One such exceptional circumstance was when burial had, by mistake, been effected in the wrong place.

Had the rector consulted the registry for advice, the registry would have contacted the Chancellor to obtain an emergency faculty permitting the exhumation, which in the circumstances would have been granted.

Because the rector did not do that, his actions were unlawful, and, had the petition not been regularised through his petition for a confirmatory faculty, he would have been exposed to serious sanctions.

The Chancellor “emphasised with the utmost clarity, that where incumbents face difficult legal situations relating to graveyards, they should contact the registry for advice, including on an expedited, emergency basis in an appropriate case”.

The confirmatory faculty was granted, and the rector was ordered to pay the costs of preparing the court’s judgment.