14 September 2009

Burial and Belief

Given recent noise in the mass media about the burial of Kerry Packer and Michael Jackson, I was interested to read 'Court refuses exhumation for garden reburial' by Shiranikha Herbert, Legal Correspondent, in 7634 Church Times (10 July 2009).

Herbert notes that the Sheffield diocese Consistory Court has refused a widower's petition for a faculty (ie a licence/authorisation) to exhume his wife's remains from con­secrated ground so that they could be reburied in the rear garden of his house (and potentially removed to a cemetery thereafter). "The fact that at the time of the funeral he had been given inaccurate information about the prospects of burial in the garden did not make his case an exceptional one so as to justify the grant of a faculty." The decision illustrates the interaction of secular and clerical law in the UK, along with potential problems where people are interred on private property (in this instance land that has been consecrated - and in practice is thus controlled - by the Church of England rather than domestic real estate more commonly used for playing with Rover, drying the washing and growing veggies).

Mary Eunice Field died in February this year and was buried 11 days later in Rossington Cemetery, a location consecrated by the Church and thus not solely controlled by a secular entity. On 7 April her widower, Gilbert Field, sought the faculty for her exhumation. The couple's daughter shared their house and apparently decided that she would like her mother to be buried in that house's garden. Alas, there's no indication in the Church Times report or in the terser note from the Ecclesiastical Law Society as to the size of the garden ... rolling acres, complete with polo field or llamas, as at Packer's Elliston and Jackson's Neverland, or something not much bigger than a Law Faculty office?

The Fields had been informed by the undertakers that a burial in their garden would require a zinc-lined cof­fin, at a cost of about £3,000. They would also need planning per­mis­sion, which would involve delay and (although the Church Times is presumably too polite to say so) extra cost while Mrs Field was in storage. Her survivors accordingly decided to bury her at Ros­sington.

Her daughter is described as "not satisfied", going on to query Doncaster Council and the UK Environment Agency, which con­firmed (after considering the location of drains) that burial in the garden in a normal coffin was permissible. That would not the case in Australia, where there are restrictions on backyard burial of people, horses and even cats and dogs.

The Council was similarly obliging, informing Ms Field that planning per­mission was not required. Perhaps having read Jessica Mitford's mordant The American Way of Death or the Dead Citizens Charter (DCC), the Council was even willing to carry out the exhuma­tion without involving the under­takers. The garden was duly prepared "and the exhumation was only a day or so away", with Mr Field having obtained the requisite Home Office licence - akin to Australian provisions in for example the Cemeteries & Crematoria Act 2003 (ACT) s 24, Cemeteries and Crematoria Act 2003 (Vic) s 121 and Burial & Cremation Act 2002 (Tas) s 38 - when the keepers of the consecrated ground expressed concern after receiving the petition for ex­huma­tion.

The Church had a special role under English law. The UK Department of Constitutional Affairs (DCA), in its 2005 Guide For Burial Ground Managers [PDF], noted that
Section 25 of the Burial Act 1857 makes it an offence to remove buried human remains without a licence from the Secretary of State or, in relation to ground consecrated according to the rites of the Church of England, a faculty. The DCA takes the view that a licence is required for any kind of removal or disturbance, including relocating coffins in the same grave. Moreover, because it is always difficult to predict with confidence the condition and position of a coffin, a licence is recommended even where a grave is excavated, for example, simply to make a visual identity check from the coffin name plate. ...

The DCA will normally be prepared to issue a licence if an application is made for personal reasons and if all relevant consents have been given. For land that is consecrated, burial is regarded as permanent. Applications for a faculty to authorise exhumation are granted only in special circumstances.
Herbert notes that
Ecclesiastical law recognises that laying someone to rest in consecrated ground, whether in a cemetery or a churchyard, is normally final and per­manent, the remains being protected by the agencies of the State or by the Church, and secure, so far as human affairs have any certainty, for all time. Permission for exhumation will be given only where the chancellor is satisfied that there are exceptional circumstances that make the case a special one.
The Rev John Carlisle, Rossington's incumbent, told the Court that Mr Field was personally content that in due course he should be buried with his late wife in the cemetery. Clearly there was some disagreement, with Herbert indicating that Field's
daughter Christine, however, had, to a quite unusual degree, a sense of continuing to communicate with her deceased mother. She said that she wanted her mother in the garden so that she could talk to her each day, and that the cemetery was closed in the evenings and she could not talk to her mother then. ... The matter was further com­plicated by the fact that the idea of burial in the garden was essentially the wish of Christine Field. Mr Field was quite content for the burial to be in the cemetery, but had been per­suaded by his daughter to present the petition for exhumation.
We shouldn't laugh: some of the very best people talk with the dead. William Lyon Mackenzie King PC OM CMG - an eminent Canadian Prime Minister and thus not a barking moonbat - for example famously conversed with his deceased mama and pet dogs. Substantial numbers of people in the US reportedly believe that Elvis is still alive or that they've been taken up to the mother ship by aliens for a spot of proctology. Fortunately their belief doesn't result in ambulatory cadavers. Others have eschewed the worm food routine in favour of innovations such as the mummification promoted by New Age guru Corky Ra.

The ELS comments that the petition was refused.
No thought had been given as to what would happen to Mrs Field when her daughter died and what access future generations would have to Mrs Field's grave as it would no longer be in the security of consecrated ground but in private hands.
The Court held that a mistake could be regarded as an exceptional circumstance justifying ex­humation (eg where under­takers made a mistake and put the coffin into the wrong grave), with consideration of whether misleading information said to have been given by the undertakers about burial in the garden might be treated as a relevant mistake. Herbert notes that
Christine Field was quite unconcerned about what would happen to her mother’s remains when she, Christine, died, and by the thought that there might be a further exhumation and another reburial, presumably back into Ros­sington Cemetery. That would be for others to sort out.

The Chancellor was troubled by the evident lack of concern about the longer-term future of Mrs Field’s remains, their location “being essen­tially to satisfy the emotional needs of her daughter, in at least this stage of the bereavement process”. He was being asked, the Chancellor said, to allow the removal of a body from its secure resting place just over a mile from the family home to an insecure resting place in the rear garden of that home.
The Chancellor indicated that if he had been minded to grant the peti­tion for exhumation, he would have sought the views of other members of the family in the area and the views of Mr Field's next-door neighbours.