Ecclesiastical court judgments – February

February’s consistory court judgments have included:

This summary also includes links to other posts relating to ecclesiastical law and CFCE Determinations.


Reordering, extensions & other building works

Removal and replacement of pews &c

Re St. Cuthbert Over Kellett [2019] ECC Bla 1 The petitioners wished to remove items of “redundant” furniture from the Grade II* church, including a number of chairs, a litany desk and the pine pulpit. “They are not currently used and the view is advanced that they will not be needed in the future, and their removal and disposal will provide much needed space in this extensively ‘pewed’ building” [4]. It was proposed to transfer the chairs to the incumbents vicarage at St Paul’s Caton with Littledale. The desk and pulpit were to be advertised in the diocesan magazine and, if there are no takers, to have them broken up.

The proposals were unanimously approved by the PCC and subsequently supported by the DAC. However, no other bodies have been consulted; the Public Notices were being exhibited between 4th January and 3rd February 2019, and the Chancellor’s judgment assumed no objections would be forthcoming, and the faculty should not issue until it is clear no objection has been intimated [11].

Although apparently straightforward, the proposals raised a number of issues of ecclesiastical law:

  • Do the owners of the items approve the proposals? The churchwardens are the legal owners of the ‘plate, ornaments and other movable goods of the church’ (Canon E1 para 5), which includes the chairs and des. Although responsibility for their maintenance (but not ownership) rests with the PCC.
  • The pulpit cannot easily be considered as being ‘a movable’, even though it can be moved. It would more usually be considered a fixture and thus part of the fabric of oved) does not make it ‘a movable’. The Chancellor was satisfied that the churchwarden(s) were aware of the situation and that the PCC and incumbent are entitled to bring this petition forward. “Overall all the necessary parties [were] before the Court.
  • With regard to the removal or disposal of items properly categorised as ‘treasures’, Re St Lawrence Oakley with Wootton St Lawrence [2015] Fam 27 para 19, in the Chancellor’s view none of the items in question could be described as “articles of special historic, architectural, archaeological or artistic interest” and therefore no hearing in open court was required [14]. Likewise, no reference to the Church Buildings Council was required under Rule 9.6(1)(c) of the Faculty Jurisdiction Rules 2015 [15].
  • The pulpit had been relocated without authority by the areas dean during the last interregnum; the Chancellor was not convinced by the “line of sight” argument in favour of its movement [8]; he also dismissed the suggestion that the Area Dean’s approval, or that the Bishop or Archdeacon did not raise any objection as irrelevant in relation to consideration of the requirements of Canon F13(3) [17 to 19].

“The Canon is clear. It was for the minister and churchwardens to deal with the matter, either by seeking a licence for ‘temporary re-ordering’ from the Archdeacon, to try out the new arrangement, or by coming to [the Chancellor] for a faculty for temporary or permanent re-ordering. That was the proper way forward. I do not accept [the Churchwarden’s] view there was no breach of Canon law, albeit I accept it was not a serious one, and is being rectified by these present proceedings. I ought to add that at the time I raised this with [the churchwarden], I had no explanation before me as to the circumstances in which, or reasons why, the pulpit had been moved” [19].

Applying Re St. Alkmund, Duffield [2013] Fam 158 the Chancellor concluded: “Individually or collectively, these proposals will cause minimal harm (in the case of the pulpit) and no harm in respect of the other items, to the significance of the church as a building of special architectural or historic interest”. However, he stressed that the furniture to be transferred to the vicarage remained in the ownership of the churchwardens and could not be disposed of without further faculty. [Re St. Cuthbert Over Kellett [2019] ECC Bla 1] [Back] [Top]. 


Telecommunications

Re St. Peter & St. Paul Burton Pidsea [2019] ECC Yor 4 In 2017 a faculty had been granted to authorise the installation of telecommunications equipment in the church tower, subject to a 20 year licence between NET Coverage Solutions Ltd (“NCS”) and the Parochial Church Council. NCS now wished to limit its activities to providing telecommunications infrastructure and to assign the licence to a company called Shared Access (“SA”), which would in future deal with the telecommunications operators and manage their licences.

There were said to be some of advantages in this arrangement as a result of the passing of the Digital Economy Act 2017 and the coming into operation of the Electronic Communications Code on 28 December 2017. However, the Chancellor noted that until the Lands Chamber has made decisions about interpretation of the Act, it is uncertain what the extent of those advantages will be [17]. He therefore authorised the assignment to SA, subject to a condition that an undertaking in writing by SA would be given to the Court, that it would not register so as to be in a position to apply for Code Rights under the Electronic Communications Code. [Re St. Peter & St. Paul Burton Pidsea [2019] ECC Yor 4] [Back] [Top]


Exhumation

Family graves

Re St. Andrew Ham [2019] ECC Swk 1 The petitioners’ daughter died in 1980 and her ashes were buried within an urn in the churchyard at Ham, Surrey. [Current churchyard regulations preclude this option] The petitioners subsequently made their permanent home in Tasmania, and had purchased the right to be buried in due time in an  plot in Kingston General Cemetery, for which Chancellor Petchey proceeded as though it was unconsecrated. The petitioners wished, on the occasion of the first of them to die, to have their ashes interred in the reserved grave in the cemetery and to have their daughter’s ashes exhumed from the churchyard and interred in the same grave.

The Chancellor noted that the norm of Christian burial is permanence and permission for exhumation is granted only exceptionally, although the re-interment of remains in a family grave may be exceptional circumstances justifying exhumation or at least comprise part of those exceptional circumstances. He considered the scope of the “family grave exception” in In re Peters’ Petition [2013] PTSR 420 and observed [emphasis added] [7]:

“[43]. In In re Alan Brown decd (2008) 27 Consistory and Commissary Court Cases, case 11 (which was not a family grave case) McClean QC Ch observed, at para 9: ‘[In In re Blagdon Cemetery] the Arches Court attached some importance to the proposal in that case to create a ‘family grave, evidenced by the purchase of a triple-depth grave. In common with some other chancellors, I do not find this part of the Blagdon judgment very clear …’ “

[44]. Moreover the cases show that chancellors have applied it in different ways.

He concluded:

[52]. It is impossible to foresee every case and, accordingly, I would not want to be categorical, but I would not generally regard the consolidation or creation of a family grave of itself as sufficient to justify exhumation. This is because, despite the benefits arising out of the consolidation or creation of family graves, to hold that consolidation or creation of such a grave were sufficient would undermine the norm of permanence.”

He said that in the present case, the petitioners were not ‘just” relying upon the creation of a family grave as “exceptional circumstances” justifying the exhumation, there was the additional complication of their child predeceasing them; it therefore appeared to him that it seems, in appropriate circumstances, the Consistory Court should show “appropriate flexibility”. However, the petition would not have the same weight if they lived in the next parish or in, say, Yorkshire [9].

He did not consider that the fact that the re-interment proposed appears to be unconsecrated ground was material; this was the situation in In re Blagdon Cemetery. “The point was that it is unlikely that having been once re-interred the ashes will thereafter be further disturbed. It will be possible for a priest to bless the plot before the ashes are re-interred” [11].

Granting the petition, he commented that as a matter of principle it is undesirable that a faculty should not have attached to it a condition within which it is to be executed; in the present case, he directed that the relevant period should be 25 years, for which there would always be possible for an application to be made to extend that period were it to be necessary [12]. [Re St. Andrew Ham [2019] ECC Swk 1] [Back] [Top].

Errors in burial

Re Middlewich Cemetery [2019] ECC Chr 1 The petition related to a family grave. The grave had originally been reserved in 1924 and the deed giving rights of burial in the grave had eventually become vested in one of the petitioners (“A”). The grave already contained a number of interments of family members’, including the remains of A’s twin brother.

In 2016, the cremated remains of A’s uncle and aunt were interred in the grave, without A’s consent. There now appeared to be no guarantee that it would be possible for A’s remains to be buried in due time in the grave of his twin brother. The burial authority admitted an oversight in allowing the burial of the remains of the aunt and uncle without A’s consent. A’s cousin said that it had always been his parents’ wish to be buried with members of their family, including their own son.

The Chancellor had to determine whether the aunt and uncle’s remains should be moved, to allow A’s remains to be buried in the grave, or whether to allow the remains of the aunt and uncle to stay in the grave. The Chancellor, after considering the decisions in Blagdon, Alsager, Twyford and Fairmile, determined not to grant a faculty for exhumation. [Re Middlewich Cemetery [2019] ECC Chr 1] [Back] [Top].


Comment

The binding nature, or otherwise, of the appellate cases: Re Christ Church, Alsager and Re Blagdon Cemetery has been an on-going issue. The past and future situation was helpfully summarized by HH Judge David Turner QC in Re Middlewich Cemetery [2019] ECC Chr 1 which was circulated recently:

“[52]. The key principles [on exhumation] are to be found in two more recent appellate cases: Re Christ Church, Alsager [1998] 3 WLR 1394, a decision of the Chancery Court of York and Re Blagdon Cemetery [2002] Fam 299, a decision of the Court of Arches. Even if the former is indeed the binding authority in the Northern province (see the analysis of Bursell QC Ch in Sam Tai Chan [2016] Ecc Dur 2 ) the latter is both important and helpful.
[53]. This is not one of those, probably rare, cases where I have concluded the application of one or other test is likely to lead me to a different overall conclusion.
[54]. Subsection (1) of clause 7 of the Church of England (Miscellaneous Provisions) Measure 2018 will, in any event, from 1st March 2019, amend the Ecclesiastical Jurisdiction and Care of Churches Measure 2018 by inserting a new section 14A which will have the effect of treating decisions of the appellate courts as if they decisions taken by each other. Subsection (3) applies the new section 14A to decisions of the appeal courts that were made before that section comes into force (as well as to those which are made after that).”


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Other

Re St. John’s Cemetery Elswick [2018] ECC New 4 The petitioner wished to have the remains of her late father-in-law temporarily exhumed for DNA analysis. She claimed that in 2018 her husband had been wrongly convicted of two rapes in 1983 and 1988. The petitioner’s sister-in-law did not believe that her brother had committed the offences of which he had been convicted, but that her father might well have been the perpetrator. The Chancellor considered that the petitioner had made out a case for the temporary disinterment of the remains and sampling of bone fragments for DNA analysis, to establish whether there was a possibility of a miscarriage of justice. He accordingly granted a faculty. [Re St. John’s Cemetery Elswick [2018] ECC New 4] [Link to post] [Back] [Top].


Churchyards and burials

Churchyard Regulations

Re St. Laurence Scalby [2019] ECC Yor 3 The incumbent and churchwarden sought to:

  • set aside an area of the “Glebe Field” for the burial of cremated remains;.
  • vary the Churchyard Memorial Rules 2013 with regard to the cremated remains in this area to permit the erection of upright memorials, and horizontal memorials not flush with the ground, both retrospectively via a confirmatory faculty, and prospectively.

The petitioners argued that they should be allowed to follow the now well-established practice in this churchyard (for 28 years); that they are fortunate in employing two sextons, one for a whole day a week and one for one and half days per week; and that they appreciate that their proposal involves more work and so will have a cost, but it is one that they consider is worth paying [26]. The Chancellor’s approach was very different from where there had been compliance with the Regulations by the majority and someone wished an exception, such as in Re St. Helen Welton [2017] ECC Yor 2.

“But this is different. There is a long history that has established a practice in this churchyard. That practice has been overtaken by rules that have sought to provide a uniformity of good practice to enhance churchyards where the practice of individualisation of commemoration needs clear guidance” [29].

The Chancellor was satisfied that the petitioners have made out a case in the particular history and circumstances of this churchyard, for the practice that has been in place for about 30 years without any difficulty arising, to be allowed to continue, including in the Glebe Field extension [31]. [Re St. Laurence Scalby [2019] ECC Yor 3] [Back] [Top]

Re St. Matthew Worthington [2019] ECC Lei 2 The Deputy Chancellor refused to grant a faculty for a memorial which was outside the diocesan churchyards regulations in a number of aspects, including: the design in the shape of a double heart; the stone wider than the maximum permitted under the regulations; polished blue granite; a green and white floral motif.

Although very few of the existing memorials in Worthington Churchyard comply fully with the Diocesan Regulations, for the most part they are of a broadly similar size and shape; the proposed memorial would represent a far more substantial departure from the Diocesan Regulations than anything that has been placed in the churchyard to date. The proposed memorial is sufficiently far in design from the Diocesan Regulations that it would look very much out of place in Worthington Churchyard, and both by its size, shape and use of multiple colours would be likely to overshadow its neighbours.

Whilst not willing to permit the introduction of the memorial currently proposed, the Chancellor considered that in two respects the Diocesan Regulations have been sufficiently widely ignored at Worthington that it would be unfair and unconscionable to require the petitioner to install a memorial to her late husband that complied with the Diocesan Regulations in every degree. Having regard to the existing (unapproved) churchyard rules and the pictures of the Churchyard, should the petitioner wish to submit an revised design, the Chancellor would be minded to permit her to install a memorial which departed from the Diocesan Regulations in the following respects (and no further): the use of polished stone (other than white marble); and the inclusion of an appropriate motif or insignia (which could be a flower) of modest size having regard to the size of the headstone as a whole would be permitted. Other conditions also applied.

Given this state of affairs in the churchyard, there is a clear need for Worthington PCC to draw up, in consultation with local parishioners, a set of parochial churchyard rules as envisaged by the Diocesan Regulations, which can then be placed before the Chancellor for approval. [Re St. Matthew Worthington [2019] ECC Lei 2] [Back] [Top]


Links to other posts

Recent summaries of specific issues that have been considered in the consistory courts include:

Exhumation

General/Miscellaneous


CDM

No new CDM Determinations have been reported since October 2018.


CFCE Determinations

Our January round-up of CFCE determinations reported that the last Commission meeting was on 13 December 2018 and the next would be on 31 January 2019. The ChurchCare page of CFCE Applications has not been updated since then, although experience suggests such a delay in updating the page is not unusual. 

Bulletin No. 41, February 2019 on the Archdeacons’ News website contains information on ChurchCare’s new web presence, which is now within the Church of England’s central website. All the ChurchCare content has been rewritten, updated and moved on to a new section of the central website. The current ChurchCare website is still active but by the end of February it will be closed down following the end of the current hosting contract. Users of the revised CofE site will be familiar with the format, with its proliferation of photographs, large font and use of “find out more” links. We will post a list of “quick links” to relevant pages should this be deemed necessary.

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Notes on the conventions used in these posts are summarized here

Cite this article as: David Pocklington, "Ecclesiastical court judgments – February" in Law & Religion UK, 28 February 2019, https://lawandreligionuk.com/2019/02/28/ecclesiastical-court-judgments-february/

 

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