This is a guest post by Frank Cranmer, reposted from the Law & Religion UK blog, about a matter of ecclesiastical law which overlaps with family law.
It concerns the grant of a faculty, which is an order granted by the Consistory Court for a particular Church of England diocese, permitting some kind of work to be done or change made to consecrated buildings or land. This can include exhumation, or the disinterment of a body buried in a churchyard, and its reburial somewhere else. Faculty petitions for exhumation and reburial are not, in fact, all that unusual – the most common reason is where the petitioner wants to reinter the deceased in a family grave, eg to rebury someone with their spouse.
This case was different, because it involved a matter of family law. The judge in a consistory court is called the Chancellor, and in this case happened to be Sir Andrew McFarlane, who is also the President of the Family Division and the head of family justice in England and Wales.
The decision
In Re Exhumation Of A Baby [2024] ECC Exe 1 the mother, ‘M’, of a baby girl, ‘X’, who died at or shortly after her birth in 2022, sought a faculty to exhume and reinter the remains of her baby, who was survived by a twin sister.
M said that the children were conceived within a highly abusive relationship, during which their father, ‘F’, assaulted her on several occasions during her pregnancy, with the result that the children were born prematurely at 23 weeks [1]. F was subsequently sentenced to a total of 2½ years’ imprisonment [5], and it was clear that his abusive behaviour during his relationship with M was regarded by the court as being at the serious and sustained end of the spectrum of such abuse [6]. Baby X was buried in the churchyard of the village where the couple were then living (‘Village A’) and where F’s parents and other family also lived [3].
Six months after the burial, M managed to free herself from the relationship and returned to live near her own parents in a village a considerable distance away (‘Village B’) [4]. She suffered post-traumatic stress symptoms and did not want to revisit the scene of her abuse, and because she could not contemplate going back to Village A, she was unable to visit her baby’s grave. She therefore sought a faculty to exhume and reinter her child’s remains [1]. F objected to the petition [8 & 9]. Her application was supported by the Archdeacon [10].
McFarlane Ch (who may possibly be better known to readers as the President of the Family Division of the High Court) explained that, under the principles laid down in Re Blagdon Cemetery [2002] Fam 299, there was a general presumption of permanence of burial, and disturbance of remains buried in consecrated ground would only be permitted as an exception to that principle [11]. In the present case, however, though there was no “mistake” as to the choice of burial site:
“the material before the court demonstrates that it is probable that M’s ability to put forward a contrary proposal will have been wholly suborned by F’s coercive and controlling influence on her at that time to the extent that she will have lacked sufficient freedom or autonomy to do other than accept his choice” [12].
There was also “a pressing pastoral need for M and her daughter to be able to attend at X’s grave on a regular basis, in circumstances where they may feel at peace and not in fear” [13]. He concluded that
“Whilst the inability of a parent, sibling or, in another case, partner/spouse to visit a current grave site cannot be an exception in itself, in this case the exceptional nature of the circumstances is compounded by the continuing impact of F’s abuse which prevents … M or her daughter from visiting Village A and X’s grave” [16].
The faculty was issued [17].
Frank Cranmer is a Fellow of the Centre for Law and Religion at Cardiff University.
Featured image: Serene Autumn Churchyard with Old Gravestones, photo by Kristian Thomas, free to use via Pexels, and reproduced here with thanks: https://www.pexels.com/photo/serene-autumn-churchyard-with-old-gravestones-31340538/