THE remains of an eight-year-old boy murdered 50 years ago may be exhumed to be cremated and scattered according to the surviving family’s wishes, as long as this is done reverently, the Consistory Court of the diocese of Southwark has ruled.
A sister petitioned for a faculty to exhume, from the consecrated area of Lambeth Cemetery, the remains of her eight-year-old brother, who was brutally murdered more than 50 years ago.
Their parents were distressed, and they could not now remember details of how the funeral arrangements were made at that time. His mother had a memory that the undertakers had explained that a plot in Lambeth Cemetery was being offered to them without payment. That was borne out by the deed that the parents were given in respect of the grave. They were unaware, however, that the plot was consecrated, or what the consequences of consecration were.
The terms of the deed stated that the boy’s father was granted the grave space for a term of 50 years, after which it would revert to Lambeth Council for reuse. That term of 50 years was approaching.
The cremated remains of the boy’s grandfather were subsequently buried in the same grave. The faculty was sought for his remains to be exhumed, too. It was proposed that the boy’s remains would be cremated and kept at home, together with those of his grandfather. When other members of the family had died, their cremated remains would also be kept at home, and eventually six sets of cremated remains would be scattered.
If the arrangements that were proposed for the treatment of the remains after exhumation were not satisfactory, a faculty would not be granted for the exhumation of the remains of the boy and his grandfather.
Cremation was addressed in Canon Law by Canon 38. Although the practice of cremation began in England at the end of the 19th century, and was the subject of legislation in 1902, it was not formally considered by the Church of England until 1943. That year, the Convocation of Canterbury decided that there was no objection to the practice, and that there was much to commend it, provided the safeguards of decency and reverence were exercised.
In 1951, the Convocation of York expressed the same view about the acceptability of cremation. It was more specific, however, and stated that the ashes of a cremated body should be disposed of in consecrated or dedicated ground by (a) burial, or (b) strewing them reverently on the surface of the ground and covering them lightly with earth, or (c) enclosing them, after obtaining the necessary faculty, in a part of the church or other consecrated building set apart for the purpose.
It said that “to scatter ashes broadcast on either consecrated or unconsecrated ground without covering them is a method which may be unseemly or irreverent and cannot be recommended.”
In the light of the Canon and the two resolutions of the Convocations, the advice of the Legal Advisory Committee was that “It is unlawful for an Anglican minister to scatter (as opposed to strewing) cremated remains as to do so is irreverent.”
The Diocesan Chancellor, the Worshipful Philip Petchey, said that it was apparent that the correctness of the Commission’s view was “entirely dependent on whether scattering is or is not reverent”.
The scattering of ashes was not intrinsically irreverent, and the Chancellor was confident that, in due time, the ashes of the boy and of his grandfather would reverently be scattered by their family. But there could be “no absolute security for this”.
It was as well to remember, the Chancellor said, that “although, obviously, human remains should always be treated with reverence, the souls of the persons whose remains they are do not reside within them. In the words of the psalmist, ashes are but dust.”
Canon 38(4) raised another matter: namely, the location of any disposal of ashes. It did not envisage the disposal of ashes in any location other than consecrated ground or land set aside for the disposal of ashes. It was not, however, an Act of Parliament.
It seemed to the Chancellor that it was “addressing what a minister needs to do, the ashes having been committed into his hands; and quite obviously it is directed to a first disposal. . . It would be too narrow a reading to interpret the Canon so as to forbid the disposal of ashes other than in consecrated ground.”
What the family was saying was that, in the circumstances, the ashes should not be subject to the effects of consecration, nor also to the application of Canon law. The Chancellor said that, in principle, he thought that the argument was correct, and “Canon law should not re-impose a restriction that consecration properly considered does not.”
In regard to the terms on which Lambeth Borough Council granted rights in the cemetery, the Chancellor said that it seemed that granting such rights on the basis that such rights had a limited duration cut across the concept of the permanence of Christian burial.
That was not so, the Chancellor said. The remains would remain subject to the protection of the Consistory Court after the expiry of the burial rights granted by Lambeth Council. That reflected what happened in respect of a “traditional” consecrated churchyard, where grave spaces went on being used over and over again. The remains interred there were never exhumed, but were displaced as necessary, and appropriately rearranged within the churchyard to facilitate ongoing burials.
In a local-authority cemetery, in a similar way, grave spaces became available for reuse after the burial right that had been purchased had expired. If a family purchased an extension of the right, and went on doing so, it never became available for reuse. The expiry of the burial right, however, did not automatically give Lambeth Borough Council the right to reuse the grave. Such reuse, usually by a process known as “lift and deepen”, was dependent on the grant of a faculty.
