The Petitioner sought a faculty to permit the interment of her late father's ashes in a family grave which already contained the buried remains of her brother and the cremated remains of her mother. The petition was opposed by her brother's widow, who was concerned that there would then be no room in the grave for her own interment. The neighbouring, vacant plot was subject to an informal reservation for the benefit of the family, but the precise beneficiary of the reservation was unclear.

The court was concerned to consider what jurisdiction it had to hear such a petition.

In re St Mary, Polstead [2017] ECC SEI 2, (2018) 20 Ecc LJ 111, Etherington Ch had granted a petition for exhumation arising from a family dispute (one daughter having not consented to the interment of the other daughter's cremated remains in their parents’ grave), noting that the party responsible for the interment should have applied for a faculty to permit the interment, so that the matter could have been determined in the proper way. However, in re St Andrew, Cubley [2020] ECC Der 2, (2020) 22 Ecc LJ 395, Bullimore Ch had considered a petition for exhumation from a family grave, also in a case where surviving relatives would not have consented to the interment if they had been consulted. He noted that the fact of a burial does not create any sort of legal interest in the grave space for the family of the deceased; that still vests in the church or the incumbent. Any discretion whether to permit interment in the churchyard vested solely in the minister, as did the right to determine the site of any future burial (absent a reservation). It was not subject to any ruling or decision by, or appeal to, the consistory court, however convenient that may be.

In the present case, the court noted that there was no express provision in the Ecclesiastical Jurisdiction and Care of Churches Measure 2018 conferring power on the court to grant a faculty authorising an interment in consecrated ground. The consent of the minister was required for such an interment; there was no express power to delegate that discretion; and public law authorities discountenanced the suggestion that the court could exercise the power of a statutory decision-maker.

However, there were three bases on which the court might properly act on a petition for the interment of remains in a particular plot within its jurisdiction, notwithstanding the lack of consent from the minister. First, the court must have the necessary jurisdiction to determine whether any actual or proposed exercise of the minister's discretion was, or would be, reasonable and lawful; or whether the minister was estopped from denying that consent had been given.

Secondly, it must be open to the minister to surrender their discretion to the court and invite the court to exercise it on their behalf, as is permitted in the law of trusts. Such a surrender may be pastorally valuable in cases of contentious family disputes. There was a fundamental difference between the unauthorised delegation of the exercise of a statutory discretion and the surrender of that discretion to a court of competent jurisdiction.

Thirdly, although the point was not decided, it seemed to the court that there was no reason why the reservation of a grave space by faculty could only take place during a person's lifetime. Given that the beneficiary of such a reservation had the right of burial in the churchyard, a reservation after the person's death would obviate the need for the minister's consent to interment.

In the present case, it transpired that the party opponent's concerns as to the availability of space for her own interment were unfounded. The court found it would be reasonable and proper for the ashes in question to be interred in the grave, and that it would be lawful for the minister to exercise his discretion so as to permit this. In order to allay any concerns as to the extent of the court's jurisdiction, the consent of the minister should be obtained prior to the grant of a faculty. Subject to the presentation of a petition, the court would also grant a reservation to secure the party opponent's right to be interred in the same grave. [DW]