A review of the issues associated with the implementation of Churchyard Regulations
Whilst the legislative issues associated with Churchyard Regulations are relatively straightforward, their application is often problematic on account of the sensitive nature of the situations to which they are applicable: the design and inscription on headstones; and the placing of unauthorized items on or around a grave; the ownership of headstones is also important where the re-use of existing graves is being considered. This post focuses on the application of Churchyard Regulation in relation to the removal of unauthorized items, which was addressed in Re St Mary the Virgin Burghfield and included detailed review of the law in this area.
Unlike the Church in Wales which has centralized Churchyard Regulations, those within the Church of England are diocese-based; in addition PCCs may adopt their own policies provided that these are consistent with the diocesan Regulations. These are mostly similar but not identical, and general guidance has been provided by ChurchCare on Memorials in Churchyards; however, Churchyard Regulations are locally determined and legal issues addressed through the relevant consistory court. Their enforcement is the duty of the incumbent and for the reasons examined below, their application is not always consistent within a given diocese. Most dioceses provide advice on their web pages, that for the diocese of Oxford (“the Oxford Regulations”) is useful as it gives information relating to the various actors involved: clergy & PCCs; families; stonemasons; and funeral directors:
- Diocesan Churchyard Regulations 2016, (in force from 1 January 2017)
- Accompanying letter to Regulations
- Application to Minister for Introduction of Monument or Ledger Stone
- When someone you love has died leaflet
- Reuse of Churchyards for Reburial
Note: The above links were updated 24 January 2019 and differ from those in our original post.
The extent to which this is followed is another matter.
Disputes on the application of Churchyard Regulations are often exacerbated by reporting in the local and national media, and recent high-profile cases have included: Re St Bartholomew Wick (Thomas the Tank Engine headstone); and Re The Churchyard of Quarrington Hill (Sunderland Association Football Club colours on headstone). A further example involving the request for a headstone in the design of a “princess’s castle”, reported recently the Church Times, has yet to be determined by the Exeter consistory court.
Memorials in churchyards
Issues concerning the design of a headstone and its inscription are addressed by the courts as they arise, and most petitions seek approval before they are placed in the churchyard, since there are few options available for subsequent remediation. In Re The Churchyard of Quarrington Hill, however, the memorial was already in situ. The chancellor therefore directed that the non-standard colouration of the edging be painted black (“permanently obliterated”) and the portrait of the deceased be removed and replaced with one in an approved format. Failure to comply with either condition would result in the removal of the memorial.
Another group of these “churchyard cases” considered by the courts is that relating to the removal of unauthorized item from individual grave – toys, lighting, edging, chippings &c. Such situations can develop over a period of time and it becomes necessary for the PCC to “regularize” the position in the churchyard and seek approval for their removal, as in the case of Re St Mary the Virgin Burghfield  Oxford Const. Ct, Bursell Ch.
Removal of unauthorized items
Chancellor Rupert Bursell handed down the judgement in Re St Mary the Virgin Burghfield in 2011. However, since diocesan chancellors are once more grappling with the question, it was requested that this might be circulated to Ecclesiastical Law Association members [although referred to in Halsbury’s Laws, as “unreported”, a report of the case is in  P.T.S.R. 593. A link was therefore available on the ELA website, which includes the following summary:
“The Parochial Church Council petitioned for permission to remove all toys, ornaments and other memorabilia and edgings from 67 graves within the churchyard, many of which items had been in the churchyard for a considerable time. The Chancellor considered all written objections, including a claim that to remove such items would be in breach of the law relating to human rights, but decided that the PCC was entirely within its rights in wishing to enforce the Churchyard Regulations, and accordingly a faculty was granted”.
The petition at St Mary the Virgin Burghfield represented the culmination of a number of attempts by the PCC at regularizing the position in the churchyard: the situation became apparent in the 1990s when the PCC amended its own churchyard regulations to correspond with diocesan Regulations; however, despite some success in the removal of plastic railings around individual grave plots, during the following 20 years, a number of unpermitted additional items (such as kerbs, lights and ornaments) had been introduced into the churchyard.
General law applicable to graves
The Chancellor highlighted a number of points of law applicable to graves :
- a grave space may be reserved by a faculty issued by the diocesan chancellor (The Perivale Faculty, de Romana v Roberts  P 332 at 338; Re West Pennard Churchyard  4 All ER 124);
- the grave itself is not owned by the deceased or by his relatives whether before or after the burial (Cripps on Church and Clergy (8th Ed, 1937) at 572; Hill, Ecclesiastical Law (3rd Ed, 2007) at 7.113); this applies even if there is an exclusive right of burial confirmed by faculty after 1964: S8(1) Faculty Jurisdiction Measure 1964;
- there is no right to erect a monument over a grave without the permission of the diocesan chancellor; this permission is usually given through an authority delegated to the incumbent: Re Woldingham Churchyard  2 All ER;
- if an item is placed in a church or churchyard without permission, a faculty is required for its removal (Ritchings v Cordingley (1868) LR 3 A & E 113 at 122; Vincent v Eyton  P 1 at 12; Newsom & Newsom Faculty Jurisdiction of the Church of England (2nd ed., 1993) at 192-193), although a faculty is not required for its removal if the matter is a very minor matter,( but see below);
- the incumbent is under a responsibility to prevent breaches of the law: for example, Re St Margaret’s, Eartham  1 WLR 1129 at 1134B; and Revised Canons Ecclesiastical, Canon F 13 §2.
- In spite of this legal requirement in relation to removal, the continuance of an item within the churchyard cannot create a legal right to its retention: R v Twiss (1869) LR 4 QB 407; S56(2)(3) Pastoral Measure 1983.
In summary, the Chancellor stated :
” … [the] general law applicable to graves … is not a question of diocesan regulations but, rather, of the general law of the land. I emphasise this in order to underline that [the petitioner] is mistaken in her belief that she and her husband are ‘owners of that precious piece of land’, although I suspect that many others share a similar belief. Relatives, therefore, do not have the right to turn graves into gardens or to fence them off or to create edgings”.
Although the Oxford Regulations had been amended to enable parishes to adopt “local variations” subject to approval by the Chancellor, such approval is given sparingly as local variations have in the past caused great difficulties within the diocese; no such approach had been made in Burghfield.
Removal of unapproved items
A degree of flexibility is provided within the Oxford Regulations regarding the placing of toys &c on the graves of infants. Paragraph 4.9 states inter alia
“Toys or other similar ornaments may be left at the graveside for a period of twelve months after the burial or interment. They must then be removed by the family or by the incumbent (or area dean) after sensitive consultation with the family”.
This has the following legal consequences [emphasis added]:
“ … if a toy is introduced under the current Churchyard Regulations, it is introduced with permission and its presence is not irregular for the period of 12 months after the interment; thereafter it should be removed by the family or incumbent as soon as possible.
These latter words would include a reasonable time for the exercise of pastoral sensitivity in the negotiations for the removal of the toy. Nonetheless, if an appreciable time passes by reason of the failure of the incumbent to fulfil his or her responsibilities, there comes a time when the toy can only lawfully be removed under the authority of a faculty.
Similarly, if a toy or ornament were introduced without any authority (such as from a faculty or under the current Churchyard Regulations), a faculty is required for its lawful removal if it is not removed as soon as possible after its introduction”.
There are obvious pastoral advantages in the inclusion of a “period of grace” in in these, and other diocesan regulations such as those of the Norwich diocese, which place the onus for removal of unauthorized items (after thirteen months) on the minister and churchwardens. An obvious practical problem with the Oxford Regulations is for the incumbent, and ultimately the court, to determine at what point “a reasonable time for the exercise of pastoral sensitivity” becomes “an appreciable time”.
A theme common to Burghfield, the unreported case of In the matter of the Parish of Alwalton, Huntingdonshire (1st June, 2011) (unreported) and more recently in Re St Bartholomew Wick is the perception by the petitioners of the acceptability of their proposal in comparison to other headstones in the churchyard and the longer-term issue of the remembrance of the deceased. The former issue was well-summarized in this latter case, in which the chancellor said :
“… matters of sentiment and aesthetic judgment are fraught areas” as identified by the petitioners’ letter which identified several headstones in the graveyard are, in their view, “vulgar to look at”. He noted that “[those] same headstones, vulgar to strangers, must have given comfort to the deceased’s families when they were erected (but only presumably, to them) however, inappropriate they now appear to those who did not know the deceased.”
In some cases, graves are visited by relatives on a daily basis, as in Burghfield [para.2], and for these the inscriptions on the headstone and additional items added to the graves are clearly of particular significance. However, these also have an impact on others visiting the churchyard. On the longer-term issues, Chancellor Gau pointed out :
“… it is to be remembered that the memorial will be read not just by those who knew the deceased in question but by those who did not. Indeed, the message conveyed to those who did not know the deceased is in many ways more important … Moreover, the memorials placed in churchyards must be fitting and appropriate not just for today, but also for the future”.
A similar perspective is given in the Norwich Regulations:
“Epitaphs should honour the dead, comfort the living and inform posterity. They will be read long after the bereaved themselves have passed away and as such are not the right place for passing sentiments about how the family feel about the deceased”.
Articles 8 and 9 ECHR
The petitioners’ human rights were addressed in paragraphs 17 to 19 in relation Articles 8 and 9 of the European Convention on Human Rights and Article 1 of the first protocol of that Convention. The Chancellor stated: “[a] parochial church council is not a “public authority” (Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank  1 AC 546, especially at para 14), but the consistory court is: Re Crawley Green Road Cemetery, Luton  Fam 308”.
Most reported cases in this area have concerned petitions for exhumations: Re Dorrington Cemetery  Fam 1; Re Crawley Green Road Cemetery, Luton  Fam 308, although in Jones v United Kingdom (application no. 42639/04) the ECtHR was concerned with the refusal of a photograph to be included on a memorial in a local authority cemetery. In declaring Mr Jones’ complaint in relation to Article 8 as “manifestly ill-founded”, the Court observed that:
“the exercise of Article 8 rights of family and private life pertain, predominantly, to relationships between living human beings … There is no right as such to obtain any particular mode of funeral or attendant burial features”.
In relation to Article 9, it stated
“the decision refusing permission for a photograph on the memorial cannot be regarded as preventing any manifestation of the applicant’s religious beliefs in the sense protected by this provision …It follows that this complaint must be rejected as incompatible ratione materiae with the provisions of the Convention”.
Chancellor Bursell stated  that it was equally clear, and for similar reasons, that neither Article 8 nor 9 was engaged in the instant case. Similarly, Article 1 of the first protocol does not apply as long as the petitioners are given a reasonable opportunity to repossess their items and edgings once they have been removed. As a consequence, As a consequence, he did not accept that in law the Hill’s human rights are in any way affected.
In his concluding remarks in Burghfield, Chancellor Bursell noted :
“… both the incumbent and the churchwardens are under a duty to enforce the law. What is more, as has occurred in the present circumstances, if the Churchyard Regulations are not enforced there is a grave danger of very real pastoral upset occurring in the future, even when an original turning of a blind eye may itself have taken place for seemingly good pastoral reasons.
“the relatives of a deceased person are always entitled at any time to apply to the court (whether on pastoral or other reasons) to alleviate the strict letter of the Regulations and this ability in itself provides some flexibility in Regulation’s application”.
Links updated 30 June 2021 at 16:41.
I have a concern about the wording of inscriptions, which require approval in line with the regulations (e.g. Oxford ‘simple, reverent and theologically acceptable’), yet so often clergy are presented with a fait accompli. Families, and the media, do not understand why what is allowable in a cemetery may not be in a churchyard if it is a statement of ‘home-made theology’ that, however sincere, is inconsistent with Christian doctrine. The text of the ‘princess grave’ currently before Exeter consistory court is a case in point. Of course, many old headstones include questionable claims and notions, but the current climate is very different.
I once had a request for an ashes stone for a Beatles fan with the single word ‘Imagine…’ This led to heated debate within the family – some were horrified – and in the end, to the Chancellor’s relief, they changed it. But such discussion is, I suspect, rare.
Inscriptions can be changed. There is the apocryphal tale of a Yorkshire stonemason who ran out of space and carved ‘She Was Thin’. Asked to add the missing letter, he produced ‘E She Was Thin’.
Many thanks for your observations Michael, helpful as always – I suspect that you have bowdlerized the Yorkshire humour, as the version I know contains several expletives. However, the important point you make, which I had intended to include, was the unenviable position of the priest, split between his pastoral concerns for the family, but having to act as arbiter (and ultimately enforcer) in cases of dispute regarding the design and inscription of the headstone &c.
The role of the other professionals such as stonemasons and funeral directors in such issues is often downplayed, yet they as much as the priest, should be aware of what is, and what is not acceptable under the Churchyard Regulations.
One example of a successful outcome of discussions with the family is Mark Hills’ judgment Re Icklesham All Saints and St. Nicholas  Chichester Const Ct. Also worth reading is Re All Saints Standon  Lichfield CCt in which Chancellor Eyre drew the line at “It’s only rock and roll” and “finally fell off his perch” but authorised the Petitioners to apply to amend the form of words and refer them directly to the Court without the need for a fresh petition or for public notice.
It’s a sad irony of Re All Saints Standon that ‘Now then’ was also Jimmy Savile’s catchphrase – which may cause short-term distress as well as long-term puzzlement.
Geoffrey Tattersall, Chancellor of Manchester, who has had more than his fair share of difficult cases, more of the Standon than the Icklesham variety, has just issued splendidly comprehensive regulations, plus a suggested model document to give to mourners – they are at
Thank you for the link to the Manchester diocese’s comprehensive Churchyard Regulations which come into effect next month; interestingly they encourage parishes to consider adopting their own Regulations for use in a particular churchyard, provided this is by way of a faculty.
I must admit that I did not spot the significance of the “now then” catch phrase and presumably neither did the chancellor; the judgments after Savile’s death and the exposure of his sexual abuse. However, according to Wikipedia the phrase he used was “now then, now then”, rather than “now then” as used in some parts of the UK as a greeting or an admonishment.
Nevertheless, this emphasizes the importance of such inscriptions since these will be read by those who are unaware of the sayings of the deceased, or the context in which they were used.
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Would it be possible to have my mother and father headstone to be erected by a stonemason that made it the original was vandalised .
The Diocesan Registrar will be able to answer your question regarding memorials in churchyards/consecrated ground – I wouldn’t like to second-guess his/her response, but expect that a description of the replacement headstone will be required.
Who do I contact about having a new head stone put on my parents grave at Saint Mary’s church Thame Oxon
Contacts for the church of St Mary the Virgin, Thame, are on the church’s web site http://stmarysthame.org.uk/about-us/contact/. It would also be worthwhile looking at the Churchyard Regulations on the Diocese of Oxford’s web site, https://www.oxford.anglican.org/support-services/legal-diocesan-registry/churchyard-regulations/, in particular the “Application to Minister for Introduction of Monument or Ledger Stone”.
The Churchyard Regulations provide all the details on size, materials and inscriptions of what is permissible on headstones in the diocese. Provided your requirements fall within these Regulations, the vicar should be able to authorize the installation of a new headstone. If any of the details do not meet the requirements of the Churchyard Regulations, approval should be sought from the Oxford diocese consistory court.
We have a large cross headstone that is over 50 years old. It has fallen to the ground in the churchyard and causing a safety issue. After failed attempts to trace any family members are we able to remove it ourselves? Preston-on-Wye PCC
We don’t give legal advice because we’re neither qualified nor insured to do so. But the person who will advise you is your Diocesan Registrar, Howard Dellar, at Lee Bolton Monier-Williams: this is the link to the Registry website: https://hereforddiocesanregistry.co.uk.
The Legal Advisory Commission of General Synod has issued Churchyards: Liability for personal injury accidents, sections 9 to 12 of which relate to gravestones/monuments. As Frank commented, your first port of call should be the Diocesan Registrar who will advise on what safety precautions are necessary, and whether a faculty is required to undertake any works to make the headstone safer.
We have erected a small white plain cross as a memorial to my inlaws. The diocese wants it removed as they claim it is a trip hazard, the plaque could fall off and it is not in keeping with the other memorials. Three headstones away is a paving slab being used, there are also several other crosses, and lots of low stones around other graves. There is also a memorial with a spotted type of stone. Why is Leicester not allowing this? I have looked in other graveyards around the county and some of the headstones are really gaudy.
At Law and Religion UK we do not give advice on specific queries.
In general, Diocesan Churchyard Regulations specify the types of memorial which may be erected, and the local priest is permitted to authorize memorials which fall within them. In other cases, the consistory court will examine each case and determine whether permission should be granted. Should you wish to follow this option, it would be advisable to contact the Diocesan Registrar and seek their advice on how to proceed and the costs involved.
Do you know if standard planning permission is required to erect a small war memorial honouring 7 aircrew who died in a plane crash in my village during World War 2?
In my query above I should have added that the memorial would be in a still-used graveyard of a listed church. It would be a large stone with a plaque attached and a small model of a plane on top.
Surely you would need a faculty at the very least. As to whether or not you need planning permission, ask your Diocesan Registrar.
Are family members allowed to remove / destroy items from our grandparents graves, I’m talking mainly flowers, heads ripped off following day, items removed following couple of days and other items placed there ?? We know who it is doing it and she has said as she was beneficiary of the will, she is in charge of the grave and we are to put nothing on it ??
Thank you for your enquiry. Unfortunately, at Law and Religion UK we do not give advice on specific issues, and would suggest that you contact the parish priest of the churchyard in which your grandparents are buried.
Evening. What are the rules of a headstone in a churchyard? My dad is buried in a churchyard and in the process of picking a headstone I’ve been told I can’t have shiny granite, like my mum’s is, then I can’t have my dad’s other name he was known by under his real name. Also, I can’t put “always in our hearts and never forgotten, love Michelle and Sean”. I’m really upset at this: it’s disgusting. If they’d told us this I’d have thought twice of burying him there. Who made these rules?
Morning Michelle, thank you for your query. Within the churchyards of the Church of England, the rules on headstones are contained in the Churchyard Regulations of the diocese concerned. Provided a proposed headstone conforms to the Churchyard Regulations, the local priest is authorized to permit its use. Where this is not the case, it is possible to petition the diocesan consistory court, which will review the circumstances of the headstone concerned.
The Registrar of your diocese will be able to provide you with a copy of the Regulations, and advise you how you might proceed, should you wish to do so.
When a church decides to remove headstones of burials have they got to inform any living relatives? The headstone was not in a state of disrepair.
A relative was buried in a churchyard in 1931, in 1963 all the headstones were removed for reasons unknown to the family. In 1976 a prefab building was laid over the burial site we think without disturbing the burial plots. Now they want to build a new bigger community centre over the burial ground which will definitely require foundations. My great-great-grandparents were only buried 89 years ago. Is there any time limit as to when graves can be built on? Or do we have no say in what happens to the plots?
Can we install new edgings ourselves in place of the old broken ones?
It is not as straightforward as it might seem, and your first point of contact should be the priest in whose parish the churchyard is, or failing that, the Diocesan Registrar.
Important factors will be the ownership of the grave, whether edging is permitted by the Diocesan Churchyard Regulations, or whether specific permission has been given for the edging.
What happens is a family disagrees with what images should be put on the headstone? If a family member objects and another family proceeds to make changes..can the Church not authorize a gravestone change until all family members agree?
The decision will need to be referred to the consistory court, which will weigh up all the evidence in each particular case. The Churchyard Regulations of the Diocese concerned are likely to be the starting point for its considerations, along with the ownership of the headstone and the family relationships involved.
Our village church PCC has decided that one half of the churchyard should be maintained with the grass cut and all kept very neat and tidy. The other half of the churchyard to be a nature area and allowed to become overgrown with no ground maintenance. Most graves in that part are old and not visited.
However, our family graves are in this half and have always been well maintained and kept very tidy. Our family obviously wishes to continue this level of maintenance. There are two reserve plots in this area for myself and also my cousin. The PCC do not want us to cut around our plot but leave it wild.
This is causing great distress and division, especially as we are an old established village family and are very supportive of the church over many years, including financially. What if anything are our rights in terms of simple maintaining our family graves?
Thank you for your question regarding the maintenance of existing and reserved grave plots. This appears to be a pastoral issue, rather than a legal one, and if it cannot be resolved with the incumbent/PCC, your local archdeacon should be able to assist.
Is there any reason why a headstone cannot be erected on top of where the coffin is buried (at the head end ) as opposed to on the undisturbed ground beyond behind the coffin? Our churchyard contains both but the latter significantly reduces “standing” space between graves
This depends upon the Churchyard Regulations for your diocese. If the proposed headstone falls within the options permitted by the Regulations, the priest is likely to have delegated authority to permit its installation. If not permitted by the Regulations, the diocesan consistory court will consider a proposal placed before it.
The diocesan registrar should be able to advise.
On a recent and, sadly due to distance and Covid, quite rare visit to my father-in-law’s grave in Lancashire, we have discovered that his headstone is missing. His ashes were interred in 2011. In fact, the whole plot is overgrown and untended. We can only assume that his ashes within their container are still present in his plot.
If the headstone has been stolen, who is responsible for the recompense? Does the church/diocese/PCC bear any responsibility for the safe keeping and protection of the burial grounds and headstones? Would there be some insurance cover?
Dear Wanda, I was sorry to hear of your distressing discovery. Whilst at L&RUK we do not give advice on individual cases, where possible we try to indicate where the appropriate information might be found.
The basic position is that in contrast to the maintenance of the churchyard, which could be either the church or the local council, the responsibility for the maintenance of the headstone (and grave) lies with the person who erected it (i.e. the person/family who arranged/paid for the headstone to be placed on the grave).
With regard to the responsibility for the safe keeping and protection of the burial grounds and headstones, this will be a local issue on which the parish priest or diocesan registrar will be best placed to give advice.
Who has the legal right to add an inscription to a gravestone in a churchtyard? Does someone who is not an immediate next-of-kin have the right to bury a relative’s ashes in a family grave?
Providing the inscription conformed to the Churchyards Regulation relevant to that particular churchyard, the incumbent could approve an additional inscription by the owner of the gravestone, or their heir at law.
Someone who is not an immediate next-of kin does not have the right to bury a relative’s ashes in a family grave.
Thank you for your kindness in replying.