The churchyard had been managed for many years with scant regard for the law. It had been closed in 2000. Although a close scrutiny of the circumstances led to the conclusion that only part of it had in fact been closed, this could not have been apparent to the relevant parties. Despite this, the interment of bodies and cremated remains had continued and there were no proper records of the locations of the burials. Responsibility for this lay with each of the incumbents in the period since closure. The parish had belatedly appreciated its difficulties. The present petitions, for a faculty for interment of cremated remains, were by way of test cases to allow the situation to be settled.
The court undertook a comprehensive review of the law on the right of burial, the position following cremation and the effect of closure of a churchyard. It set out the following summary of the position (excepting reserved grave spaces):
i. In a churchyard that was open, the burial might take place, without a faculty, of the body or ashes of any person who had a right of burial there;
ii. In a churchyard that was open, the burial might take place, without a faculty, of the body or ashes of a person who did not have the right of burial there, but only if the minister, as defined in section 88(7) of the Ecclesiastical Jurisdiction and Care of Churches Measure 2018, consented;
iii. In a churchyard that had been closed under the 1853 Act, in the circumstances covered by an exception or proviso to the closure order, the law as to both burials and cremations was the same as if the churchyard had not been closed and the same applied to any part of the churchyard not affected by the closure order;
iv. In a churchyard that had been closed under the 1853 Act, no body might be buried except where point (iii) applied;
v. In a churchyard that had been closed under the 1853 Act, unless point (iii) applied, the ashes of a person who had the right of burial there might be buried only if a faculty was obtained, either specifically for the burial or generally for burial of ashes in an area set aside for the purpose;
vi. In a churchyard that has been closed under the 1853 Act, unless point (iii) applied, the ashes of a person who did not have the right of burial there might be buried only (a) if a faculty had been obtained either specifically for the burial or generally for burial of ashes in an area set aside for the purpose, and (b) if the minister consented.
As none of the petitioners had a right of burial in the churchyard, the consent of the minister was required (and had not yet been given). However, the proposed interments all fell within a proviso to the closure order, permitting the burial of remains in the existing grave of a family member; therefore, no faculty was required. Faculties were refused because it was not for the court to purport to authorise an act which could lawfully take place without the court's authority. [DW]
