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Re St Chad, Bensham

Durham Consistory Court: Bursell Ch, 30 August 2016 [2016] ECC Dur 2 Exhumation – provincial appeal court – binding authority

Published online by Cambridge University Press:  20 December 2016

Ruth Arlow
Ruth Arlow*
Affiliation:
Chancellor of the Dioceses of Norwich and Salisbury
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Information

Type
Case Notes
Information
Ecclesiastical Law Journal , Volume 19 , Issue 1 , January 2017 , pp. 131 - 132
Copyright
Copyright © Ecclesiastical Law Society 2016 

In considering a petition for exhumation, the chancellor examined the decisions on that subject in the provincial appeal courts. He held that, as a matter of law, consistory courts in the Province of York were bound to apply the test set out by the Chancery Court of York in Re Christ Church, Alsager [1999] Fam 142, namely that the petitioner must show, on a balance of probabilities, good and proper reason for the proposed exhumation which was likely to be accepted by right-thinking members of the church at large. The Court of Arches’ judgment in Re Blagdon Cemetery [2002] Fam 299 – which involved a presumption that Christian burial was permanent and that a faculty for exhumation could be granted only in an exceptional case – should not be followed in the Province of York. Dicta of the Court of Arches in Re St Nicholas, Sevenoaks [2005] 1 WLR 1011 that Blagdon should be followed in the northern province were ultra vires as the Arches Court had no jurisdiction in relation to that province. Moreover, the active consideration by the Court of Arches in Blagdon of the theological position in relation to exhumation had also been ultra vires. Any investigation into the theological position was properly one for the Court of Ecclesiastical Causes Reserved.

The chancellor rejected the criticism made by the Court of Arches in Blagdon of the notion of a reason that was likely to be accepted by right-thinking members of the church at large. Common law courts had no difficulty in making findings as to the views of right-thinking members of society, the officious bystander, the reasonable landlord or the fair-minded and informed observer. As the ecclesiastical law was part of the general law of England, there was no reason why a right-thinking member of the church should not be approached in a similar, hypothetical way. On the facts of the present case, applying the test in Alsager, a faculty for exhumation would be issued; the chancellor was unsure that the same result would have followed if Blagdon had applied. [Alexander McGregor]