Consistory court judgments and CFCE Determinations – July

This month’s round up of judgments and determinations concerning churches, cathedrals and churchyards

Our 27 January post reviewed the Church of England’s new guidance which aims to clarify the legal position regarding crematorium funerals and the payments to the clergy. This was, in part, prompted by the judgment Rouch v Hawthorne [2015] Winchester Disciplinary Tribunal, Bursell Ch, in relation to the Clergy Discipline Measure 2003. The more recent case of the Revd Simon Reynolds in the Sheffield Crown Court is a reminder that criminal charges resulting in a custodial sentence can also be brought in such cases. Mr Reynolds was found guilty of stealing more than £24,000 in church fees for weddings and funerals, and at Sheffield Crown Court on 28 July, was sentenced by Judge Julian Goose QC to 30 months for stealing church fees and an additional two months for breaching his bail[1].

The relationship between civil and ecclesiastical law was also a feature of Re Twyford Cemetery, discussed below, which turned on the interpretation of the secular legislation. It was necessary for the Chancellor inform the petitioners that although the matter was being decided in an ecclesiastical court, their assertion that the situation has arisen as a result of what is referred to as “poor church administration” was incorrect.

Consistory Court Judgments

Re St. John Bowling[2015] West Yorkshire & The Dales Const Ct, Mark Hill Ch.

Neither St John’s own web site nor A Church near You give any details about the church itself, with which this short two-page judgment may be placed in context. However, Geograph.org provides both a photograph of the church and the following brief description:

“This church, built in 1842 at the expense of the Bowling Iron Company, has seen enormous changes … Not surprisingly, the interior framework is entirely of cast iron with slender clustered shafts and ribs to the vault.”

By an unopposed petition dated 10 February 2015 (but not lodged at the Registry until more recently) a faculty was sought for various works which in summary form comprise removing an existing extension on the north side of the church and constructing a spacious hallway, welcome area, toilets and store connected to the church through a new doorway into the narthex. Works to the car park, drainage, bicycle standards and the removal of two ash trees are also included

The petition was supported by the statutory consultees: English Heritage, (as it then was); the Victorian Society, (in its revised form, accommodating the comments that the Society itself had made); and the Church Buildings Council. The City of Bradford Metropolitan District Council had granted planning permission and the Diocesan Advisory Committee had recommended the works. No letters of objection were received at the registry as a result of the public notice.

Applying the criteria laid down in Re St. Alkmund Duffield [2013] Fam 158, the Chancellor determined that any harm to the Grade II listed building would be slight, and accordingly granted a faculty.

[Link to judgment] [Top of Page]

Re Twyford Cemetery[2015] Oxford Const Ct, Alexander McGregor Ch.

Sadly, petitions for the exhumation of bodies buried in error are not uncommon, but few chancellors are faced with circumstances as distressing as those in Re Twyford Cemetery, or are required to reach their judgment under similar pressures of time. A reading of the full judgment is highly recommended. A further feature of this case is that it turned on the interpretation of civil rather than ecclesiastical law, reflecting the additional controls on consecrated burial ground within municipal cemeteries.

The basic facts concerning the burials are straightforward: a body had been interred in a grave reserved for someone else. The family which had reserved the grave, Mr and Mrs Reginald King and their son Mr Mark King, applied for a faculty for exhumation of the body wrongly placed in the reserved grave. This was challenged by the family of Mrs Watkins, who was buried in the reserved plot: Mr Andrew Watkins; his sister (and daughter of the late Mrs Watkins), Mrs Sian Alward; Mr Russell Watkins; and three others.

Mr and Mrs King had reserved a double depth plot, designated E5, as near as possible to the grave of their son Alan who had died some years earlier. A document referred to as a Grant of Exclusive Right to Burial was issued on 10 May 2014 under s214 Local Government Act 1972 and Local Authorities Cemeteries Order 1977, which conferred an exclusive right of burial Mr and Mrs King in consideration of the sum of £280; it identified the grave space in question as that numbered E5 in Twyford Parish Council Burial Ground.

However, in October 2014 “due to human error” the Twyford Parish Council gave this burial plot number to Bicester Funerals in order to carry out the burial of Mrs Patricia Watkins. This was discovered in January 2015. Further confusion arose as a result of an assertion by one of the objectors that Mrs Watkins was not, in fact, buried in the disputed plot, [3]; however, the Parish Clerk confirmed that this was not the case, [18].

Following the breakdown of the attempts at mediation coming to a common position between the two families, on 23 April 2015, Mr and Mrs King submitted a Petition to the Registry seeking a Faculty to authorise the disinterment of Mrs Watkins‟ body with the intention that it should be reinterred in the same consecrated burial ground, but in a different grave space. Public Notice was dispensed with special notice of the Petition was given to the near relatives of the deceased under Rule 5.6(4) of the Faculty Jurisdiction Rules and notices sent to the near relatives of the deceased on 18 May. This resulted in six letters of objection, received by the Registry between 28 May and 16 June.

A further complication arose when the Registry was contacted subsequently by Mr Mark King, the son of Mr and Mrs Reginald King, to indicate that his father was an inpatient in hospital, that he was terminally ill and asking whether there could be some urgent resolution to the Petition, [5]. As a consequence, the necessary procedures prior to the hearing were expedited, and account taken of these new circumstances during the hearing and in the discussions relating to the possibility of an appeal, [38 & seq].

After hearing the case for the petitioners, [12- 14], and the objectors [15-21], and the Parish Clerk, [21-23], the Chancellor considered the application of Re Blagdon Cemetery [2002] Fam 299. He noted the binding nature of the decision in Blagdon, indicating that whilst mistake as to burial in the wrong plot is in itself an exception, it does not automatically follow from that that a Faculty must be granted. However in Blagdon, the Court of Arches does not provide any guidance as to how petitions such as the present for circumstances in which exhumation is opposed. Consequently, the Chancellor had to consider for himself, as a matter of principle, those matters which should be taken in to consideration in deciding whether or not a Faculty should be granted in this particular case notwithstanding that a mistake as described by the Court of Arches has been made out in this case, [28]. He concluded that both sides would be distressed according to how the Petition went and causing distress or anguish could not be avoided to one side or other if this Petition is to be determined, [30].

Addressing the other factors to be taken into consideration, the most weighty was the legal position: the assignment to the funeral directors of Mrs Watkins’ interment of plot E5 amounted to a breach of a legally enforceable specified right which had lawfully been granted to Mr and Mrs King under the provisions of the Local Government Act and the Local Authority Cemeteries Order, Article 9. He stated, [35]:

“as the law is concerned, what the Petitioners are doing is no more than seeking to secure a right that legally belongs to them and has been properly granted to them under legislation approved by Parliament and made by the Secretary of State and there is nothing to suggest that they are doing that for anything other than entirely proper motives,”

and gave judgment for the Petitioners. [Re Twyford Cemetery, [2015]] [Top of Page]

Re St. Peter Gunton [2015] Norwich Const Ct, Ruth Arlow Ch.

As in the earlier case Re St. Peter Gunton [2013] Norwich Const Ct, Ruth Arlow Ch, the petitioner was an octogenarian who was finding access to the grave of a family member within the same churchyard increasingly difficult – in the instant case, Mrs Queenie Ivy Gooch used a wheelchair and her mother’s grave was some way from the churchyard path; in the earlier case, the two (separate) petitioners experienced problems as “[t]he graves become, at times, overgrown and harder to access” since “[t]he local authority has assumed responsibility for the upkeep of the churchyard and as a result the grass is cut less frequently and the churchyard tended less well”, [4].

The incumbent and churchwarden indicated that in the more recent case, they had no objections to the exhumation (there was no reference to the “long-established presumption against exhumation and in favour of the permanence of Christian burial in consecrated ground”[2]); however, clearly mindful of the refusal of the 2013 petition, they expressed “some understandable concern about the setting of a precedent should the faculty be granted”. Likewise, the Chancellor noted, [10]:

“In those cases [in 2013, supra] the special circumstances relied upon related, in part, to difficulties of access to the graves in light of the advancing years and limited mobility of the petitioners. I am mindful both of the precedent set in that case [i.e. refusal] and the potential precedent set for future petitions by a grant of faculty in this case. The petitioners in that previous case would feel an understandable sense of hurt and grievance if a faculty were granted in this case without a clear distinction between those cases and this.”

Reviewing the case in the light of Re Blagdon Cemetery [2002] Fam 299, the Chancellor determined that no special reasons existed which would justify an exception to the norm of permanence of Christian burial. As earlier, the faculty was refused; nevertheless, a pastoral issue remains of three groups of (unsuccessful) petitioners who are experiencing increasing difficulty of access within this one churchyard, and a level of maintenance by the local authority which appears to exacerbate these problems.

[Link to judgment] [Top of Page]


CFCE Determinations

At the last reported meeting of the Cathedrals Fabric Commission for England, (CFCE), on 4 June, the following applications were determined:

Hereford Cathedral: Loan of Magna Carta and the King’s Writ. It is proposed to loan the 1217 exemplar of the Magna Carta and the 1215 King’s Writ to the Foreign & Commonwealth Office for the period of September-December 2015 for exhibitions at the following locations: United Nations, New York;  European Court of Justice, Luxembourg; European Parliament, Brussels; Government offices or the Gulbenkian Museum, Lisbon; Sotheby’s, Hong Kong; Government offices or a national museum in: Canberra, Auckland, Kuala Lumpur, Singapore, Beijing; and other possible locations to be confirmed. Approved subject to further satisfactory CFCE assessment of environmental (relative humidity, temperature or light conditions), security and other conditions.

Ripon Cathedral: Replacement gargoyles – Application one. Removal of two relict gargoyles from the north elevation that are eroded beyond remedial conservation, and commission two replacement gargoyles. Approved subject to: supervision by Cathedral Architect; archaeological recording; and proposals for any subsequent disposal are subject to a formal application to the FAC.

Ripon Cathedral: Replacement gargoyles – Application two. To remove one relict and structurally unsound gargoyle from the north elevation and commission a replacement gargoyle. Approved subject to conditions as in Application one.

Rochester Cathedral:  Installation of new water supply. To run a separate, metered water main for the Cathedral Tea Rooms and Cathedral Crypt via an open-cut trench, alongside the existing supply to The College (Old Deanery), to comply with Southern Water regulations. Approved.

Rochester Cathedral: Repair and conservation to quire screen – deferred for more information.

Winchester Cathedral:  South transept passenger lift. The Chapter of Winchester has been granted permission to install a lift in the stairwell of the South Transept Calefactory. The lift type, design and materials are, however, to be approved by the CFCE Commissioners before work can commence. This application seeks permission for the installation of a hydraulic ram lift and borehole. A second application will be submitted for the lift design and materials to be used following approval of a lift type.

At the Commission meeting on 23 July 2015 the following applications were considered:

and will be posted when the determinations are published.


[1] He was bailed to the precincts of Sheffield Crown Court while the jury deliberated its verdict but was thought to have left the building shortly after the jury retired. Police launched a manhunt amid fears he could have fled to mainland Europe; he eventually handed himself in after four days.

[2] An extended form of the Note prepared for the Court of arches by the Rt Rev Christopher Hill is published as: C Hill, “A Note on the theology of burial in relation to some contemporary questions”, (2004) 7 Ecc LJ 447.

Cite this article as: David Pocklington, "Consistory court judgments and CFCE Determinations – July" in Law & Religion UK, 28 July 2015, https://lawandreligionuk.com/2015/07/28/consistory-court-judgments-and-cfce-determinations-july/

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