The petitioner sought a faculty for the exhumation of the remains of his stillborn son so that he could be reburied in an unconsecrated burial chamber with the remains of the petitioner's deceased wife. In applying the test in re Blagdon the court found exceptional circumstances, and a faculty was granted.
The court considered the state of the differing binding precedents on exhumation in the two provinces. In the northern province, the decision of the Chancery Court of York in re Christ Church, Alsager was still binding authority, to the extent that it differed from re Blagdon (as applied in re St Chad's Churchyard, Bensham [2017] Fam 68, Durham Consistory Court). The court noted that section 14A(1) of the Ecclesiastical Jurisdiction and Care of Churches Measure 2018 provided that:
A decision of the Arches Court of Canterbury or the Chancery Court of York is to be treated by the other Court, and by the lower ecclesiastical courts in the province of the other Court, as if it were a decision which the other Court had itself taken.
Prior to the enactment of that section, Southwark Consistory Court was bound by the decision in re Blagdon but not by the earlier decision in re Alsager, but now the position was not so clear; both decisions appeared to be binding on it. It fell to the court to consider which authority to prefer. The court noted the dictum of Denning J in Minister of Pensions v Higham, cited with approval elsewhere, that there was a ‘general rule that where there are conflicting decisions of courts of co-ordinate jurisdiction, the later decision is to be preferred, if it is reached after full consideration of the earlier decision’. The court therefore concluded that it should start from the position that it was appropriate to follow re Blagdon rather than re Alsager unless there were particular reasons why it should not.
The court further considered the relevance and status of factual precedents. While the common law doctrine of precedent was not historically part of canon law, the desirability of securing equality of treatment between petitioners was described by the Court of Arches in re Blagdon as the practical application of precedent. If the court was to be confident that equality of treatment was being secured, it needed to consider other decided cases; where factual distinctions were drawn between cases, it was important that the distinctions drawn should be intellectually defensible and not subject to the criticism that they were too fine to be justifiable. [DW]
