Review of the ecclesiastical court judgments during January 2019
This January, an above average number of interesting or important consistory court judgments have been published. Part 1 of the round-up reviewed reordering, extensions & other building works; this Part 2 includes exhumation, churchyards and burials, and include links to recent CFCE determinations and to other posts relating to ecclesiastical law. There was significant media interest in Re The Cremated Remains of AA and
although the reports highlighted the exhumation of the remains of the alleged paedophile, the judgment turned on the distress caused to the parties concerned and not directly on the allegations of paedophilia per se. We followed up the case with two stand-alone posts here and here. Since reference was made to Re St Mary, Haseley (Coventry 2009), a case not consider before on this blog, a more detailed review of this judgment has been included in this post.
For Chancellors faced with the Augean task of removing unauthorized items from churchyards, the robust approach taken in Re Plumpton with East Chiltington cum Novington will be of interest.
Re the Cremated Remains of AA  ECC Lic 7 This is an anonymised judgment. The petitioner proposed to be buried in the same grave as her late sister and parents. However, when her sister’s husband died, his cremated remains were interred in the same grave, notwithstanding that a granddaughter of the late sister had specifically asked the parish priest not to inter the husband’s remains in the same grave, alleging that the husband had subjected her to repeated sexual abuse when she was young, and it would cause great distress to the family to have his remains in the same grave where the remains of some members of the family were already interred and where other members of the family wished their remains to be interred. The Chancellor decided that the continuing family distress which would be caused by allowing the husband’s remains to be left in the grave amounted to exceptional circumstances justifying exhumation. He therefore granted a faculty for the exhumation of the husband’s cremated remains and for re-interment of the remains in another churchyard. [Re the Cremated Remains of AA  ECC Lic 7] [Link to post] [Back][Top]
Re St Mary, Haseley (Coventry 2009)* This case was cited in Re the Cremated Remains of AA. Described by the petitioner’s counsel as “a family at war”, essentially concerned access to the grave of the deceased, soured by the “a close, lasting, and loving relationship” between the deceased and one of the objectors. The petitioner wished to have her late husband’s cremated remains exhumed and reinterred in Scotland on a property that he had acquired in 1962. However, the deceased had expressed a wish, confirmed by one of the objectors, to be buried in the churchyard of St Mary, Haseley. Four relatives and a friend of the deceased objected.
Chancellor Eyre noted “[i]nevitably the category of potential special circumstances is not closed” . He said that the application of Re Blagdon to a particular case requires an essentially two-stage process addressing the factors being put forward as justifying exhumation: firstly a consideration of whether the matters raised are capable in law of amounting to special circumstances; in doing so the Consistory Court must take account of the guidance of the Court of Arches in identifying certain matters which can and others which cannot of themselves amount to such circumstances .
Expanding on this, he said [emphasis added];
“. …That will be a relatively straightforward exercise when the factors relied upon are included in the categories considered by the Court of Arches in Re Blagdon Cemetery. However, the list of potentially relevant factors considered in that case was not exhaustive. When addressing a factor other than those considered in that case the Consistory Court has to assess it in the light of the approach laid down therein. Thus the Consistory Court has to determine whether it is a matter which is something sufficiently out of the ordinary so as to be capable in appropriate circumstances of justifying the Court in taking the exceptional course of ordering exhumation. This first stage in the process derives from the ruling in Re Blagdon Cemetery that there are categories of factors which can be identified as being either capable or incapable of justifying exhumation.
. However, the mere presence of a factor which is capable of being a special circumstance for these purposes does not necessarily mean that exhumation should be ordered in any particular case. The Court has a discretion and the second stage of the process requires the Court to consider whether exhumation is justified in the light of the circumstances of the particular case. This stage derives from the existence of the Court’s discretion and from the knowledge that the presence of a factor which is of a kind which can justify exhumation does not necessarily mean that exhumation is justified in the actual circumstances of a particular case”.
Reviewed each of the elements of the case, he held that in these circumstances:
- Conduct of the Objectors in making allegations against the Petitioner &c were “similar in kind to the acrimony between family members which, all too often, occurs after the death of a loved one and which leads to ill-judged conduct and emotional accusations. They do not constitute circumstances which can justify an exception to the principle of the finality of Christian burial although in an appropriate case where other factors are present they may be relevant to the exercise of the Court’s discretion” .
- Creation of a family grave: this was not the motive behind the petition, .
- Conflict at the graveside: this was, in the Chancellor’s judgment, “capable of being a special circumstance justifying exhumation. It is something sufficiently out of the ordinary and potentially so related to the particular gravesite as to be capable in appropriate circumstances of justifying the Court in taking the exceptional course of ordering exhumation” .
- The wishes of the Deceased were a significant factor to be considered., but could not be conclusive since the Deceased cannot have envisaged the current circumstances. 
- The current situation of the land at Braeside would not be suitable for the interment of the Deceased’s remains. 
The Chancellor concluded that the last two points,  and , were significant factors against exhumation, but even more telling was the fact that the conflict at the graveside was not caused by the fact that the Deceased’s remains were interred in Haseley and would probably not be ended by their removal from Haseley. This was the crucial determining factor in this case .
The petition was refused since
“[49[. … exhumation would not end the current conflict. It would move the scene of battle and might give a tactical advantage to one side but it would not put an end to the unseemly and demeaning conduct of the parties. Exhumation is an exceptional course. It should not be ordered if its result would simply be a continuation of conflict at another location. I conclude that would be likely to be the position here”.
Re All Saints West Bromwich  ECC Lic 1 On 25th November 2017 a casket containing the cremated remains of the late Rev Derek Smith was interred in the churchyard of All Saints, West Bromwich. However, the incumbent was unaware the proximity of a sewer which was running through the churchyard . This became apparent when repair work was required on the sewer, with the attendant possibility of damage to the memorial and disturbance the remains by heavy earth-moving machinery . The widow of the deceased requested a faculty to exhume the remains and reinter them in the same churchyard about 30 feet from their current position .
The Chancellor stated that the location of this grave was not suitable at the time of the interment because its proximity to the sewer meant that there was a risk that at some future time the memorial would be at risk of damage and the remains at risk of disturbance when works had to be performed on the sewer. That risk has now eventuated. Referring to Re Blagdon Cemetery, he said “at [36 iii], the Court of Arches did agree with the Chancery Court saying that ‘a mistake as to the location of a grave can be a ground upon which a faculty for exhumation may be granted’” .
Without engaging in “a sterile academic analysis as to the nature of the mistake”, he said:
“The position here is that Derek’s Smith’s remains are in a location which is unsuitable. That location is unsuitable because there is a significant risk of the remains being disturbed accidentally in the course necessary works. The risk of such disturbance is incompatible with the safe and seemly preservation of the remains which is one of the purposes of Christian burial. The remains came to be in that location because of a misunderstanding at the time of interment. At that time the location was thought to be suitable because of the misunderstanding about the route of the sewer. Knowledge of the true route of the sewer has revealed that the remains are in an unsuitable location”.
The Chancellor was satisfied that the circumstances were sufficiently exceptional to justify the grant of a faculty for exhumation and reinterment. [Re All Saints West Bromwich  ECC Lic 1] [Back] [Top]
Re St. Philip & St. James Hallow  ECC Wor 4* The proposed memorial comprised an upright stone with a ‘cover slab’ supported on kerbs. The parish priest did not support the proposal, because (a) no similar type of memorial had been approved for very many years, (b) the memorial did not comply with the diocesan guidelines, and (c) the memorial would inhibit maintenance. The PCC objected on the grounds that (a) the memorial would create maintenance problems and (b) it might set a precedent that others might wish to follow. The Chancellor refused to grant a faculty as requested, but said that he would approve the upright memorial element of the proposal. [Re SS. Philip & James Hallow  ECC Wor 4] [Back] [Top]
Re St James, Bulkington  ECC Cov 1 The petitioner wished to place a memorial on her late husband’s grave. Many of the details of the proposed design were outside the diocesan churchyards regulations, including: two coloured engravings, one of a robin and the other of a West Highland Terrier (to represent a deceased family pet; dark grey honed granite with a polished obverse side; gold lettering; the use of the words “Dad” and “Grandad” in the inscription; two flower holders in the base.
The PCC unanimously declined to support the proposal. However, in view of the proximity of the grave to others on which the proposed material had been used, the Chancellor granted a faculty. This allowed: dark grey honed granite with a polished obverse side; white (rather than gold) lettering; the use of the words “Dad” and “Grandad” in the inscription; a single flower holder; the design of the dog, coloured white. However, the coloured design of the robin was not permitted. [Re St. James Bulkington  ECC Cov 1] [Back] [Top]
Re Plumpton with East Chiltington cum Novington  ECC Chi 3 Following a parishioner’s complaint to the bishop, the Rector and Churchwardens sought confirmatory faculties in relation to the churchyards of two parishes with the objective of permitting the retention of several grave markers and other items which had been introduced without lawful authority; either the Rector had allowed items to be introduced which were outside his delegated authority under the churchyards regulations or because items had been installed without his permission first being sought, [1,2].
In addition to the general public notice which was exhibited at the entrance to each churchyard, a notice (in a form approved by the Chancellor) was placed on each of the relevant headstones, and a special notice (by way of a letter from the registry) was sent to the immediate family in each case where contact details were known. The original complainant sent a formal letter of complaint in response to the general notice, and many of the family members also responded; their individual responses were considered in the discussion of each of the specific graves. In addition, the Chancellor visited each of the churchyards in question. [3-7].
The Worshipful Mark Hill QC observed [emphasis added]:
“. These proceedings have been necessitated by what I find to be culpable neglect on the part of the incumbent who in recent years seems to have fallen short of his responsibilities by failing properly to exercise the authority delegated to him under the Churchyard Regulations….
. A cleric who fails to adhere to the diocesan Churchyard Regulations exposes him or herself to censure in the Consistory Court and may be ordered to pay the costs of faculty proceedings and/or of remedial action required in the churchyard. In addition, such neglect of duty may give rise to a complaint under the Clergy Discipline Measure 2003.”
He was also critical of the monumental masons and applicants who make false representations regarding their proposed work . After considering the petitioners’ case  and objector’s representations [12 to 14], the Chancellor addressed the individual cases, Petition No 0800: All Saints Plumpton Green [16 to 29] and Petition No 0801: East Chiltington Churchyard, [30 to 40].
The East Chiltington Churchyard [42 to 45] was: “rather more straight forward and, to the extent that family members have engaged with the court process, there is a measure of understanding and a preparedness, albeit reluctant, on the part of the majority to accept that items may be required to be removed”. Whilst noting that box hedges are not expressly prohibited in the terms of the Churchyard Regulations, he commented that they are not appropriate in churchyards and looked singularly out of place: “The proper course therefore is for the box hedges to the removed and families were allowed six weeks so that they [could] be grubbed out”.
“In relation to the fences, chippings and mementoes, these are expressly prohibited under the Churchyard Regulations and must be removed”. As with the box hedges families were given six weeks to remove them of their own volition, at the end of which the PCC is to do so; fences and mementoes would be securely kept as approved by the Archdeacon for a further three months after which “they may be disposed of in a seemly manner”.
The churchyard of All Saints, Plumpton Green was somewhat different: some grave markers and related items were introduced with the apparent authority of the incumbent; and other memorials date from 2006/7. With regard to the latter, under s 69(4) Ecclesiastical Jurisdiction and Care of Churches Measure 2018, the consistory court is unable to make a restoration order exists in respect of unlawful acts perpetrated less than six years immediately prior to an application being made. Nevertheless, the Chancellor did not to grant a confirmatory faculty for their retention; instead “they will remain unauthorized so that it is clearly understood that their presence sets no precedent”, but “to the extent that chippings have been placed on these graves, these are to be removed within six weeks and the graves are to be returned to turf”. .
With regard to the other “otherwise unobjectionable” memorial with raised kerbs, he proposed to allow the family three months within which to petition for a retrospective faculty. The Chancellor anticipated joining both the stone masons and the incumbent as parties to those proceedings, and “would hear evidence and argument as to how and why the unlawful kerbs were introduced in the first place and why they should be retained notwithstanding [the incumbent] had no authority to accede to the application for their introduction which contained the false declarations” . Unless the raised kerbs are removed within three months, or a petition is lodged for their retention within the same period, the PCC was directed to secure their removal at the direction of the archdeacon.
A faculty passed the seal in respect of East Chiltington Churchyard, petition 0801, and in respect of All Saints, Plumpton, petition 0800, subject to the conditions in paraphs 52 and 53, respectively. With regard to costs, the Chancellor stated:
“. The cost of the petition, to include a correspondence fee for the registrar are to be borne by the petitioners. Ordinarily all petitioners would be jointly and severally liable for such costs, which would be paid from the funds of the PCC. I will allow the PCC a period of 21 days, should it wish, to make representations that some or all of the costs should be paid personally by the First Petitioner, [the incumbent]. [Re Plumpton with East Chiltington] [Back] [Top]
“This closed church was likely to be sold and converted to residential use and the Church Commissioners were applying for planning permission. Probably due to the exceptionally dry weather during the summer, the roots of one of the trees in question had caused ground shrinkage, resulting in the appearance of vertical cracks at the corner of the building. That tree needed to be felled, as did the second tree which would obstruct the proposed driveway and septic tank. There would still be one small tree left in the churchyard at the rear of the church building.”
There were three letters of objection, but no formal parties opponent. The Petitioner provided factual evidence to the court which rebutted all of the objectors unsubstantiated objections. The Chancellor was satisfied as to the need to fell the trees and granted a faculty; being an opposed petition, the petitioner was liable for the additional costs. [Re St. Edmund Fraisthorpe  ECC Yor 1] [Back] [Top]
The last Commission meeting was on 13 December 2018. It considered the following new applications.
- CANTERBURY CATHEDRAL loan of portrait of Dean de Waal to the Jewish Museum, Vienna
- HEREFORD CATHEDRAL loan of the Magna Carta to the L’ARCA exhibition centre, Vercelli, Italy
- NORWICH CATHEDRAL excavation for upgraded electricity supply to 71 The Close, Norwich School
- SALISBURY CATHEDRAL cleaning, repair and maintenance of the cathedral Willis organ
- YORK MINSTER conservation of Chapter House doors
The next Commission meeting was on 31 January 2019. It will consider the following new applications. Full documents can be obtained from the cathedral contact listed on the form.
- COVENTRY CATHEDRAL new Pavilion for Coventry City of Culture 2021
- LEICESTER CATHEDRAL new building and other works for Heritage Lottery Fund project
- ST ALBANS CATHEDRAL revised proposals for the conservation and reconstruction of the St Amphibalus shrine
- WINCHESTER CATHEDRAL conservation of Blaeu globes
- WINCHESTER CATHEDRAL loan of Hegesippus manuscript to Winchester College Treasury
- YORK MINSTER standing consent for protective glazing works.
Recent summaries of specific issues that have been considered in the consistory courts include:
- Municipal cemetery regulations and the High Court: Ul Haq, 23 January 2019.
- Permanence of Christian burial revisited – III, 25 January 2019.
Notes on the conventions used in these posts are summarized here.