Church court resolves historic flags conflict

Disagreements between villagers and the local vicar are not uncommon, particularly when misunderstandings between the parties are compounded by misinformation and poor communications, as the Diocese of Exeter found to its cost last year.  Although this was the initial scenario in Re St. Mary the Virgin Selling [2013] Canterbury Const Ct, Ellis Comm. Gen. the approach adopted by the consistory court ensured that an equitable and amicable agreement was reached between the parties.  The case arose in the village of Selling, Kent, where the church was seeking to provide a more suitable location for two flags from the Battle of Trafalgar that had been donated to the church in by a local family – an Union Flag and an Austrian ensign had been given to a resident in the village, Stephen Hilton (1785-1872), when he was Master’s Mate on the HMS Minotaur at the Battle of Trafalgar.

In 1930, the flags were donated to the church and hung in a memorial chapel that had recently been dedicated “in honour of the Rev. William and Mrs Hilton-Simpson, parents of Captain Melville Hilton-Simpson, the present owner and resident at Sole Street”, a house which had been resided in by many “representatives” of the Hilton family.  The flags remained in the church until 1994 when they were removed, without a faculty, to an expert conservator, where remained until “sometime in 2010/11” when they were moved to their current location, Canterbury Cathedral Treasury.

In 2007, the conservator informed the PCC that

“[the flags] cannot be displayed either in suitable environmental conditions, or, frankly, safely, considering what they are and the value that could be placed upon them, in Selling Church anymore.”

Guided by the Diocesan Registrar and Diocesan Advisory Committee (“DAC”), having established a sound claim to ownership, the Parish began to explore the value of the flags and possibilities for their disposal.  In June 2012, the DAC concluded:

  • the two flags were items of national significance;
  • the National Maritime Museum, (NMM), was the most appropriate body to conserve the flags and arrange for their permanent display;
  • the priority of the PCC in selling the flags is not to raise money for the PCC’s funds but rather to ensure that the flags are properly conserved and displayed, since the PCC is not in a position to do so.

Although the Deputy Commissary General had indicated that he did not require a formal DAC certificate and that the Parish could proceed with a Petition, he indicated that evidence would be required on the Parish’s contact with the Hilton family and that he “may require Special Notice to be given to any such as remain available to contact.”  Notices were placed in local papers, but the necessarily limited information they contained, the unfortunate wording relating to the flag’s “disposal”, combined with a letter in the Daily Telegraph resulted in a substantial number of objections: 96 individual objectors and three organizations: The Faversham Society, The Flag Institute and The Nelson Society.

On 27 October 2011, the Priest in Charge and Churchwarden petitioned for:

“permission to transfer ownership of the Trafalgar Flags, in the possession of this church, to the National Maritime Museum at Greenwich”,

and the detailed Statement of Needs dealt with: the description and provenance of the flags, their ownership, authenticity and value, as well as their current fragile state and circumstances around their removal.  It then set down

  • the principles for present action;
  • reasons why it would be “most unwise” to re-hang the flags in the Hilton Chapel;
  • the reasons for seeking permission to transfer ownership to the NMM; and
  • future plans for continuing the Hilton Legacy.

The Petition generated further letters of objection and additionally the Commissary General [1] directed that a number of bodies directed that the following bodies be specially cited under Rule 13(1) of the Faculty Jurisdiction Rules 2000: The Church Buildings Council; The Nelson Society; The 1805 Club; The Society of Antiquaries of London; The Flag Institute; and The Society for Nautical Research.

At this point, the Commissary General took action to restrict the number of objectors to those with a proper interest, ruling out an academic naval historian in Australia under rule 16(2) of the Faculty Jurisdiction Rules 2000, and confirming whether other were resident in the parish or on the Church electoral roll and, if not, why they considered that they had a proper interest.

The Petitioners were shown the remaining objections, a number of which appeared to express justified concerns about difficulties experienced in gaining clear information from the Parish.  These and others were provided with further information, and as a result four more objectors formally withdrew.  Subsequent enquiries by the Petitioners revealed that that there were no surviving members of the Hilton family with a legal claim to the flags.

The Commissary General noted that given the national significance of the items at issue,  all objectors bar one had been treated as though they were “interested persons” in practice, even though not all appeared to satisfy the statutory requirements.  However, she noted that the number of petitioners making the same point was not persuasive on the basis that “neither a sound nor a bad point improves with repetition”.

Guidance on whether to conduct an oral hearing had been laid down by Gray QC Ch in Re St James’s, New Malden [1994] Fam 44, and it was noted that whilst none of the objectors had indicated that they wished to become a Party Opponent, the responses of the Citation Bodies were an important factor in considering the mode of disposal of the Petition.  A Directions hearing was arranged at which to consider a number of issues

  • the presence of objections which, despite lack of responses to the Registry, had to be treated as outstanding (because not expressly withdrawn);
  • the important points of qualification in the Citation Bodies’ responses;
  • the need for clear resolution of the Hilton family’s position and the related question of property in the flags;
  • the rigorous nature of the test in Re St Gregory Tredington (1972) Fam 236;
  • the interesting questions about local and national interests in heritage objects;
  • related issues of curatorial policy; and
  • the tremendous historical, cultural and emotional significance of the flags themselves.

All those who attended the Directions Hearing confirmed that that they were content for the Commissary General to consider the Petition on the Papers before her.  On the basis of these, submissions made after the Directions Hearing, and site visits, the following findings were reached.

  • On the ownership of the flags, it was held that flags were given to the Parish in 1930 by Capt Hilton-Simpson.
  • Four options were considered for the location of the flags:
    • Remaining in the Cathedral Treasury
    • Return to St Mary, Selling
    • Storage, conservation and display at the National Maritime Museum, (NMM)
    • Interim storage, (possibly at the NMM), until the Faversham Museum is physically able to accommodate them.

These were reviewed in the light of Tredington and the need for “a suitable long term home to ensure their conservation”, which could not be provided by St Mary’s Selling.  It was concluded that

“disposal to the NMM is justified by the necessity of ensuring proper care for the flags in the future. It is also desirable to divest the Parish of responsibility for the physical safety and condition of the flags.”

Regarding the terms of the flags’ disposal

“It is not proposed that the Parish receive an unfettered ‘windfall’. As noted  [by the court] the plan is to set up a charity with educational and social objects geared towards benefiting the young people of Selling and emphasising historical education and research particularly concerned with the Battle of Trafalgar.


No new principles of ecclesiastical law were developed: guidance on the determination of a Petition without an oral hearing (as was decided) was provided in Re St James’s, New Malden [1994] Fam 44; and by Re St Gregory Tredington [1972] Fam 236 on matters of title and considerations relevant to the sale of church property, with particular reference to the national cultural significance of the items involved. However, the court facilitated dialogue between the parties, and using a staged approach, sequentially addressed the various concerns of the objectors.

Although Morag Ellis  QC made it clear that

“[her] approach to this exceptional case cannot, and is not intended to, set a precedent as to [her] or other Chancellors’ approaches in other cases to the identification of “interested persons”,

others facing complex issues with large numbers of objectors would do well to read and learn from the judgement, both within the Church and elsewhere.

[1] The title Commissary General is unique to the Canterbury diocese.  In all other dioceses such judges are known as Chancellors.

4 thoughts on “Church court resolves historic flags conflict

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