The petitioner sought a confirmatory faculty for the exhumation of the cremated remains of her late husband, which had been interred in consecrated ground in 1999.

Under section 2 of the Church of England (Miscellaneous Provisions) Measure 2014, in force from 1 January 2015, exhumation from consecrated ground required a faculty (save in cathedral cases); exhumation from unconsecrated ground required a licence from the Secretary of State for Justice. There was now no overlap between the two regimes, as there had been before 2015. The principles governing the grant of a faculty were those enshrining the presumption of permanence of Christian burial and the requirement to make out exceptional circumstances (re Blagdon Cemetery [2002] Fam 299). In contrast, a licence would, for the most part, be granted on proper demand; the Ministry of Justice's form asked no question as to why the licence was sought.

In the present case, the petitioner had sought a licence to exhume from the Secretary of State. The form currently in use for the purpose was published in 2012 and took no account of the 2014 Measure. The form did not ask the petitioner whether the remains were in consecrated ground; but part of the form had also, correctly, been completed by the incumbent, who noted that the ground was consecrated. Mistakenly, the Ministry of Justice issued a licence, on the strength of which the exhumation was carried out. All the professional parties were subject to criticism.

On consideration of the petition for a confirmatory faculty, the court noted that the grounds for it were that the petitioner realised that she had made a mistake and regretted having interred her husband's remains in a churchyard. Her intention was that the remains would be scattered with her ashes after her death. These were not grounds on which a faculty would have been issued; neither the exhumation nor the proposed scattering accorded with the church's view about the permanence and dignity of Christian burial.

The exhumation had been an offence against secular and ecclesiastical law and would remain so unless retrospectively authorised. While refusing a faculty would be justified in principle, it would serve no useful purpose, and would cause and maintain offence. Accordingly, a faculty would be issued. [DW]