Ecclesiastical Court Judgments – July (Part 2)

Review of the ecclesiastical court judgments during July 2019

This second part of our round-up of July’s consistory court judgments includes:

The recent CDM Tribunal judgment in relation to The Revd Canon Cameron Butland is summarized below and reviewed in a separate post. A link to this review is included in those for other posts on ecclesiastical law posted this month, below.

Part 1 which was posted on 29 July included reviews of judgments on Reordering extensions & other building works, and Audio Visual Equipment


Part 2

Exhumation

Problems of access

Re All Saints Sutton Courtenay [2019] ECC Oxf 2 The petitioner, a long-standing resident of the village, sought permission for the disinterment of the remains of his great-great-grandparents from a double grave, and their re-interment in another grave in the same churchyard – the only vacant plot now remaining. A faculty had been granted on 7 September 2018 for an extension to the church; as a consequence, the grave would be against the wall of the extension with paths on the remaining three sides and it was likely that people would take a short cut over the grave to the entrance to the extension [1].

The petitioner did not object to any of the proposed works and has been supportive of the building project. However, he  had expressing concerns from the outset about the impact on his ancestors’ family grave; the grave will lie on the route of a ‘short-cut’ between the external entrance to the new extension and the path to the north, and the petitioner no doubt fears that this will become a ‘desire line’. In view of the popularity of the church and its churchyard with visitors, which contains a chest tomb to the former Prime-Minister Herbert Henry Asquith and another to the writer Eric Blair (George Orwell), the Chancellor commented “the petitioner’s concerns cannot be discounted” [3].

The petition was originally referred to Chancellor’s predecessor, The Reverend and Worshipful Alexander McGregor, who had commented that it was not obvious that the petition satisfied the test in Re Blagdon Cemetery [2002] Fam 299, particularly in the light of his own judgment in Re Holy Trinity Headington Quarry [2018] ECC Oxf 1; however, he left the decision to his successor, The Worshipful David Hodge QC, to decide what directions to give or how otherwise to dispose of the petition [6], who requested further information on the case [7].

Chancellor Hodge noted that whilst the decision in Re Holy Trinity, Headington Quarry was clearly of relevance to the present petition, it is not directly determinative of it [11]. Likewise, the guidelines in Re: The Petition of Kathrine Tollis [2016] Ecc Oxf 2 were helpful but of limited assistance on the facts of this particular petition [11]. The analysis and approach of Deputy Chancellor Morag Ellis QC in Re St Nicholas, Charlwood [2019] Ecc Swk 2 were consistent with the earlier judgment of Eyre QC Ch in Re All Saints, West Bromwich [2019] ECC Lic 1, but  the location of the grave in the West Bromwich case is clearly distinguishable from the present case since in that case the location was unsuitable at the time of the original interment; there was a misunderstanding about the route of the sewer at that time and the consequent significant risk of the remains being disturbed accidentally in the course of any necessary works to that existing sewer [17].

On the unusual facts of the present case, the Chancellor held that the petitioner had satisfied the court that there are special circumstances which constituted good and proper reason for making an exception to the norm that Christian burial in consecrated ground is final [18]. Those reasons are: (1) the location of the existing grave is no longer a suitable resting-place for the petitioner’s ancestors; (2) that this situation has come about through no change of mind or physical or mental infirmity on the part of the petitioner or other family members but rather through the decision of the church to embark upon building works in close proximity to the grave for the benefit of both the church and the wider village community; (3) the petitioner’s reasons and case are genuine, his petition is said to reflect the wishes of the known descendants of the two deceased, and the petition was lodged promptly following the grant of the relevant faculty for the building works; (4) not merely is the petition supported by the PCC and the incumbent but there are valid pastoral reasons, and also good practical reasons (in terms of facilitating access to the main entrance to the extension), in support of the grant of a faculty; (5) it is proposed to re-locate the grave within the same churchyard in which it is currently located and not to move the remains outside the churchyard’s curtilage or to re-bury them elsewhere, still less in unconsecrated ground; (6) the exhumation and re-interment should not have an unsettling effect on people living in the immediate neighbourhood of the churchyard; and (7) the decision to grant a faculty as asked will not create any kind of precedent, and it is certainly not my intention to do so.

The Chancellor directed that a faculty shall issue as asked, subject to the usual conditions for the protection of human remains [19]. [Re All Saints Sutton Courtenay [2019] ECC Oxf 2] [Back] [Top]

Other

Re St. James Bulkington [2019] ECC Cov 3* The petitioner sought a faculty to authorise the exhumation of the remains of her daughter and husband from Bulkington churchyard in Warwickshire, with a view to them being reinterred in the churchyard at Bacton in Norfolk. The petitioner’s daughter had lived only one day and was buried at Bulkington fifty years ago. Her husband’s cremated remains had been interred there nineteen years ago.

Seven years ago, the petitioner, who had suffered serious health issues, had moved to Bacton to be near her family, and she wished in due course to be buried with the remains of her daughter and husband a Bacton, where her remaining family would be able to maintain the grave. She was concerned about being unable to visit the churchyard in Warwickshire regularly and maintain the grave there. The Chancellor, applying the principles laid down in Re Blagdon Cemetery [2002] Fam 299, could not find sufficient exceptional grounds in this case to justify the grant of a faculty. [Re St. James Bulkington [2019] ECC Cov 3] [Back] [Top]

Re Clayton Cemetery Bradford [2019] ECC Lee 2 The petitioner, Mrs Lesley Town, sought a faculty for the exhumation of the remains of her brother, Colin David Berry, who died aged 49 on 4 April 2013; Mr Berry’s widow, Mrs Janette Berry, arranged for the remains to be buried at Clayton Cemetery, Bradford after a funeral at St Anthony’s Church. The petition sought their reinternment at the Queensbury Cemetery where the Berry family have exclusive burial rights in two adjacent plots; the remains of his father, Malcolm Berry, are already interred there. Colin’s mother and siblings have countersigned the petition signifying their agreement to what is proposed [2].

Following the death of Mr Berry, there had been a lack of communication between Mr. Berry’s widow and the Mr. Berry’s own relatives; there was a brief contact on 9 November 2013 and contact ceased in December 2013 and nothing has been heard from Mrs Berry since then [5]. Approaches to the Ministry of Justice were made by Mrs Town (and other family members), and later by the funeral directors Melia & Sons, making “a formal request for change of ownership of the burial plot”. The Worshipful Mark Hill QC observed “It is not clear on what legal basis the Ministry was invited to act… Exclusive burial rights are matters of private law as between the local authority and the ‘owner’ of each individual plot. Apparently there was no written contract between Melia & Sons and Mrs Berry” [7].

On 10 January 2019, the Secretary of State for Justice granted a licence under section 25 of the Burial Act 1857 for the removal of the remains of Mr Berry from Clayton Cemetery to Queensbury Cemetery; none of Queensbury Cemetery is consecrated in accordance with the rites of the Church of England, v infra [11].

Chancellor Hill stated that the examples of exceptionality (in relation to the exhumation of remains) given by the Court of Arches in Re Blagdon Cemetery [2002] Fam 299 do not purport to be exhaustive, and it was therefore unnecessary to “shoe horn” this “highly exceptional” case into one or more of the categories discussed in the judgment [15]. He also said:

“In my assessment, the petitioners have satisfied me on the evidence that the place of interment for Mr Berry was not one discussed and agreed by his wider family, that the trauma of his death…gave rise to a febrile situation which denied all concerned the luxury of informed decision making. A rift within the family was in gestation. The subsequent disappearance of Mr Berry’s widow and children in unexplained circumstances, has created an ‘abandoned’ (and still unmarked) grave, the rights in relation to which still vest in Mrs Berry whose whereabouts are unknown.

Whilst the agreement of family members and the difficulties in visiting a grave would not, of themselves (whether individually or cumulatively) satisfy the test of exceptionality, the desire to create a family grave was a feature which found favour with the court in Blagdon. However, this is not something which I regard as determinative, albeit it adds to the argument of exceptionality which I have already outlined.”

The Chancellor made it clear to the petitioners that the Court would not countenance an exhumation unless the re-interment were to be in ground consecrated in accordance with the rites of the Church of England. Whilst the primary reason for this was doctrinal, an equally powerful justification in this instance was the need to ensure that the new place of burial was within the jurisdiction of the Consistory Court. Whilst he neither desired nor expected an application on the part of Mrs Berry to set aside this judgment or the resultant faculty, under rule 20.3 of the Faculty Jurisdiction Rules 2015, ” justice requires that the status quo ante be capable of being restored in the event that she does so” [16].

The Chancellor found that there were exceptional circumstances in which to authorise exhumation, but the faculty was to be subject to a condition that the area for reinterment in Queensbury Cemetery should first be consecrated (to which the Bishop and Bradford City Council had agreed), before the remains were reinterred there, in order that the Court could maintain jurisdiction in the unlikely event of Mr. Berry’s widow subsequently seeking to set aside the Chancellor’s decision [18]. [Re Clayton Cemetery Bradford [2019] ECC Lee 2] [Back] [Top]

[Back] [Top]


Churchyards and burials

Development of churchyard

Re St. Mary & St. Ethelburga Lyminge [2019] ECC Can 1 The Petitioners sought authorisation for the following works: “Enhancement to the paths in the Churchyard including implementing new step-free access to the church for those with impaired mobility by laying new paths to the north door; re excavation of presumed Anglo-Saxon church in churchyard to allow long-term conservation and to facilitate creation of a management plan” [1]; these comprise the eleven itemized works listed in [3].

It was proposed that the total cost, estimated at £161,904, would be met largely from the Heritage Lottery Fund, the balance from by PCC funds and a small grant from Kent County Council. The archaeological works are to be undertaken by volunteers, professional archaeologists from the University of York and Canterbury Archaeological Trust aided by a team of enthusiasts working under supervision. The latter introduced an element of urgency since such voluntary labour is only available between July and August 2019 [4].

The PCC unanimously resolved to petition for the necessary faculty on 28th June 2018, and the DAC advised that the proposed works should be approved [8]. Letters of objection from two neighbours expressed concern about the impact of the works on the adjacent lane, and in particular, to three of the proposed items [9]. In response to these objections, the Petitioners indicated in a letter to the Registry Clerk that they wished Items 8, 9 and 10 to be deleted from the Petition [11].

The Chancellor was satisfied that the improvement of the paths would enhance the churchyard, and also examining, recording and securing for the future archaeological remains of national and possible international significance justified the granting of a faculty. [Re St. Mary & St. Ethelburga Lyminge [2019] ECC Can 1] [Back] [Top]

Churchyard Regulations

Re All Saints Rettendon [2019] ECC Chd 1 The petitioners wished to erect in the churchyard a memorial to their late mother. The memorial proposed was to be a bird bath, carved from grey, unpolished Finland granite, containing the name, and dates of birth and death of the deceased, and inscribed with the words: “The goat’s milk is sour.” (These words had been used by the family for over 30 years in times of stress, to relieve tension, and no-one had objected to them.) However, the Diocesan Advisory Committee did not recommend the proposed design, on the basis that it might form a precedent. Nevertheless, the Parochial Church Council approved the proposal, as the bird bath would be placed next to trees, where mourners had from time to time placed bird feeders. The deceased had been a great supporter of wildlife in general and birds in particular. The Deputy Chancellor decided in the particular circumstances that it was appropriate to grant a faculty. [Re All Saints Rettendon [2019] ECC Chd 1] [Back] [Top]


Clergy Discipline Measure

Re Butland [2019], judgment On 14 May 2019, the Bishop’s Disciplinary Tribunal for the Diocese of Carlisle heard a complaint against the Reverend Canon Cameron Butland by the Archdeacon of Westmoreland and Furness, alleging that the Respondent had been neglectful or inefficient in the performance of his duties. Since the misconduct was admitted, the only issue before the Tribunal was that of penalty. The Tribunal determined that the appropriate penalty was one of rebuke.

The President of Tribunals referred the following matter to the Tribunal [2.1].

“The conduct of the Respondent…was neglectful in the performance of his office as Rector of St Oswald’s Church, Grasmere, contrary to section 8(1)(c) of the Clergy Discipline Measure 2003, I that having been notified by a solicitor that St Oswald’s Church, Grasmere, was a residuary beneficiary of the estate of the late Mrs Alene Hackett, and having been requested by the solicitor to disclose the registered charity number for the church:

(i) on 6th September 2011 when replying to the solicitor he failed to disclose the registered charity number of St Oswald’s PCC, but instead provided the name and registered charity number of the Grasmere Church of England School Trust of which he was a trustee;

(ii) on subsequently receiving a letter from the solicitor dated 9th May 2012 referring to the bequest to St Oswald’s Church and enclosing a cheque for £338,823.80 made payable to “The Grasmere Church of England School”, he neglectfully accepted the cheque so that the bequest monies were paid to the Grasmere Church of England School Trust (“the School Trust”) instead of the PCC;

(iii) through such neglect or inefficiency, St Oswald’s PCC was permanently deprived of a sum totalling bout £70,000, which was spent by the Grasmere Church of England School Trust for the benefit of the school before the Respondent’s error was discovered and rectified.


Links to other posts

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

General/Miscellaneous

CDM


CFCE Determinations

The dates of the Cathedrals Fabric Commission for England may be found by scrolling down to the bottom of the page Cathedrals Fabric Commission. This also includes the applications that the commission examined, View form 8s, the decisions made by the commission, View form 10s.


Notes on the conventions used for the navigation between cases reviewed in this post are summarized here.

Cite this article as: David Pocklington, "Ecclesiastical Court Judgments – July (Part 2)" in Law & Religion UK, 31 July 2019, https://lawandreligionuk.com/2019/07/31/ecclesiastical-court-judgments-july-part-2/

2 thoughts on “Ecclesiastical Court Judgments – July (Part 2)

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