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Grave Difficulties

by Tim Clarke

The law relating to the disposal of the dead is one of the topics chosen by the Law Commission for consideration in its next programme of work:

Until relatively recently there was little choice as to what happened to the mortal remains of the dead: they were buried. Then, not without controversy, cremation was made available by the Cremation Act 1902. The question of whether open-air cremation should be permitted was considered in R (on the application of Ghai) v Newcastle City Council [2010] EWCA Civ 59.

Now there are more possible alternatives, freeze-drying and granulating, for example, and the Law Commission will look into what legislation might be required to make some of those possible alternatives more easily available.

Burial, however, remains a common option, but the law relating to burial is complex, sometimes falling within the jurisdiction of the consistory courts of the Church of England, sometimes governed by secular law. Cemeteries may surround churches, but many are managed by local authorities and within these there are generally both consecrated and unconsecrated areas.

When there is a problem, therefore, it is not always obvious where to look for the solution. Problems might arise because a family member wants to move the remains of a loved one, or perhaps some remains have been buried in a plot already reserved by someone else.

Exclusive rights of burial in churchyards are granted by faculty from the Diocesan Chancellor. Cemeteries controlled by local authorities also grant exclusive rights of burial. Although there has been much academic discussion over the legal nature of exclusive rights of burial in cemeteries and whether they are contractual or proprietary in nature, it does appear clear that they can be assigned during the holder’s lifetime and bequeathed on death.

Establishing who controls the plot, however is only the first step. If human remains are to be removed lawfully, then proper authorisation is required.

Exhumation requests have ceased to be uncommon, but how easy it is to move human remains does depend on where they are buried.

Where the remains are buried in consecrated ground, they come under the jurisdiction of the consistory court and the presumption is against allowing exhumation, but in certain circumstances it is authorised.

The leading case on exhumation is Re Blagdon Cemetery [2002] Fam 299 where it was held that while permission could be given for exhumation from consecrated ground, that permission is not, and never has been, given on demand by the consistory court. The disturbance of remains which have been placed at rest in consecrated land has only been allowed as an exception to the general presumption of permanence arising from the initial act of interment. The rule, established by that case, is that a faculty for exhumation will only exceptionally be granted. While a mistake, in the form of a burial in a plot already reserved by someone else, can constitute such an exception, particularly where the petition is brought by the family of the deceased, where the petition is opposed, the court will revert to the presumption of permanence and exceptional circumstances will need to be established: Re Fairmile Cemetery [2017] ECC Oxf 2.

In Re Fairmile Cemetery [2017] authorisation was sought for the exhumation and reinterment of a body buried (due to an administrative error of the burial authority) in a grave reserved for a member of the applicant’s family, as part of a block of graves reserved for the family. Permission was refused on the grounds that (a) the desire of the applicant’s family to keep family burials in a rectangular block was just a ‘personal preference’, which was outweighed by the distress which would be caused to the family of the deceased and the Christian theology of the permanence of burial (the burial authority were willing to grant an exclusive right of burial for the petitioner’s family in a plot adjacent to the ‘block’); and (b) there had been a delay of one year between the burial in the wrong grave and the lodging of the application.

In Re Twyford Cemetery [2015], however, by contrast, a body had been interred in a grave reserved for someone else. The family which had reserved the grave applied for authorisation to exhume the body wrongly placed in the reserved grave. One of the two people for whom the grave was reserved was terminally ill. Permission was granted on the basis that there had been a genuine administrative error, which led to the interment in the grave already reserved.

Even if the exhumation is authorised in the consistory court, it remains questionable as to whether there is any way in which such an order can be enforced in relation to a Council-controlled cemetery: Re Tristram (1899) 80 LT 414, Reed v Madon [1989] 2 All ER 431.

If the remains are to be reburied in unconsecrated ground, then a Licence from the MoJ will also be required.

Where the remains are buried in unconsecrated ground, it is for the Ministry of Justice and the secular courts to decide what should happen. Control of the authority to remove buried human remains is governed by section 25 of the Burial Act 1857. This provides that it is not lawful to remove human remains which have been interred in a place of burial without a licence from the Secretary of State. An application for such a licence is normally considered sympathetically and generally granted when it is made with the consent of the next of kin of the deceased person. This requirement of consent can be waived.  Where the owner of the grave objects, however, that is considered to be fatal to the application. Without the consent of the owner of the plot and ideally, if it is someone different, the consent of the next of kin, a licence will not be granted: Reed v Madon [1989] 1 Ch 408 at 424A. These policy considerations are helpfully set out in R (HM Coroner for the Eastern District of London) v The Secretary of State for Justice [2009] EWHC 1974 (Admin) at para. 23.

The principles applied by the Church Courts, as set out in In re Blagdon Cemetery [2002] Fam 299, are not applicable to ground which is not consecrated: R (Rudewicz) v Secretary of State for Justice [2012] EWCA Civ 499.

Given the highly sensitive nature of disputes about human remains, local authorities and churches rarely want to be seen to take sides and certainly don’t want to give inaccurate advice. However, with careful consideration of the facts, it is usually possible to predict the possible outcomes and give appropriate assistance to those involved.