Review of the ecclesiastical court judgments during December 2019
Part I of this post reviewed the first twelve of the twenty-three consistory court judgments that were circulated in December; these related to Reordering, extensions & other building works. This second part covers the remaining eleven judgments relating to Exhumation; Churchyards and burials; and Bells. It also includes links to other posts relating to ecclesiastical law, and information from the Oxford DAC which gives some background to the operation of its DAC. Other later posts will consider some of these cases in more detail: Re All Saints Preston and Re The Holy Saviour Bitterne and considerations on the introduction of “pod” facilities into Grade I and Grade II churches, respectively; and on the disregard of the faculty jurisdiction in Re St. Oswald Filey .
Re All Hallows Ordsall  ECC S&N 1 The Chancellor was asked to grant a confirmatory faculty in respect of cremated remains which had already been exhumed (with a view to their subsequently being scattered) following the illegal issue of a Ministry of Justice licence, since the remains were interred in consecrated ground. The Chancellor summarized the situation as [emphasis added]:
“. None of the professionals in this story come out well. The Ministry of Justice has failed to keep its website and forms up to date, and in particular has failed to implement an important change in the law nearly five years ago: as a result the forms are unhelpful and do not ask the right questions. The official who issued the Licence did so when he had in front of him the information that he had no jurisdiction to do so. The incumbent apparently did not read the form she was asked to endorse and sign, did not raise any question about why a Licence, not a Faculty was being applied for, and did not make any further enquiries when she was told of the impending exhumation, for which there had been no Faculty that she had supported or of which she was aware. The funeral directors apparently did not suspect that a churchyard was consecrated, or did not ask whether it was, or did not know that an exhumation from consecrated land requires a Faculty. Of these I think the last are least to blame, because of the absolute terms of the Licence, which, however inappropriate in this case, does purport to give the authority that ought to have needed a Faculty, and does so under colour of a signature on behalf of the Secretary of State. But because of the terms of s 25 it is the funeral director who may have committed a criminal offence.”
The Chancellor concluded:
“. … largely because of the series of mistakes made by others apart from the Petitioner, the ordinary rules have a rather limited application to this case. Rather, it is a case calling for a larger view of the Chancellor’s discretion to grant a Faculty. Refusing a Faculty would certainly be justified in principle but would serve no useful purpose, and would cause and maintain offence. Granting a Faculty would render lawful what has so far been unlawful; and would regularise the present situation, which there is in any event no practical possibility of changing.
. In these circumstances I shall exercise my discretion in favour of the Petitioner and grant a confirmatory Faculty, with no conditions, for the exhumation of the remains”
“. It is clear from the evidence that Mrs Sharp (the Petitioner) and Mr Cleverley each intended to reserve the plot at the foot of their respective family members … However, the reservations were recorded the other way round in the parish council records. In response to the queries raised by Ms Sharp and Mr Cleverly in March 2017, the council evidently relied on its records.”
Mr Colin Cleverley subsequently relinquished the plot when he discovered the error, but it was only through alerting the local press that the petitioner’s family became aware of the error by Denmead Parish Council.
At the funeral of Patricia Bessie Sharp, the family realised that the grave had been dug in the wrong place, but felt unable to do other than proceed with the funeral. They subsequently sought a faculty for exhumation and re-interment in the intended grave. The Chancellor concluded:
“. The parish council, while not opposing the petition, does not necessarily agree that an error was made in recording the reservations. However, I am satisfied from all the evidence that that a genuine mistake was made in the process of recording the reservations made by Mrs Sharp and Mr Cleverley. While there is a presumption that the parish records are regular, that presumption is rebutted by the evidence of the petitioner and her witnesses”
The Chancellor was satisfied that a genuine mistake had been made, which could be regarded as an exception to the presumption of permanence of burial. He therefore granted a faculty for exhumation and re-interment, in order to correct the error. However, as the Parish Council was not a party to the proceeding, he was precluded from ordering costs against them, and noted that the petitioner had indicated that she may pursue other remedies.
Update:12 June 2021 at 15:39. See comment from Jonathan Mercer, below.
Re All Saints Freshwater  ECC Por 4 This judgment concerns an application made by five separate petitions for permission to exhume remains from five graves in the churchyard and re-inter them in another location within the churchyard. The churchyard extends to over 4 acres and is maintained as a wildlife friendly environment; there is a badgers’ sett close to one of the boundaries of the churchyard, where a number of graves are situated. The sett has been maintained under licence and with the support of appropriate professional advice and until recently it has not affected the integrity of the graves [1,2].
During October 2019 heavy and persistent rain caused the partial collapse of the sett. The graves were undermined and it was not possible to effect repairs to restore them to their original condition. The parish proposed in each case to exhume the remains and re-inter them in new plots in an area of the churchyard which is not affected by the badger sett or otherwise liable to collapse. The work is to be undertaken by a reputable local undertaker, who is familiar with the churchyard and understands the sensitive nature of the project, and overseen by a suitably qualified ecology protection group.
The badgers’ sett is protected under the Protection of Badgers Act 1992 and any action which may interfere with or disturb the sett may only be undertaken under licence. The ecology group overseeing the work confirmed that any interference with or damage to the sett is unlikely and that, since they will oversee the exhumations, no licence is required. Faculty granted. [Re All Saints Freshwater  ECC Por 4] [Back] [Top]
Re St. Nicholas East Dereham  ECC Nor 2 The cremated remains of a child who died within hours of a premature birth in the 1980s had been interred in the churchyard. The petitioners (the father of the child and his three daughters) wished to have the remains exhumed with a view to them being reinterred in the father’s garden. The father’s wife had expressed a wish before her death to be buried in the garden with the remains of her deceased child. The Chancellor could find no justification for allowing the exhumation and reinterment of the child’s remains as proposed, but he granted a faculty authorising exhumation, provided that permission could be obtained for the remains of the child and both parents to be interred in the churchyard of the church where the mother’s funeral had been conducted or in some other consecrated ground. [Re St. Nicholas East Dereham  ECC Nor 2] [Back] [Top]
Re St. Oswald Filey  ECC Yor 8 During the parish priest’s absence, whilst attending a course, a burial took place in the closed churchyard. Prior to his absence, the priest had told the funeral director and the family that a burial could not take place, unless in accordance with one of the exceptions in the Order in Council closing the churchyard for burials, namely: (1) where a grave had been reserved by faculty; (2) where a person could be buried in the same grave as a relative. (Also, cremated remains can be buried in a closed churchyard.) The funeral director arranged for the deceased to be buried next to the deceased’s brother in a tight space between two graves. The Chancellor determined that the interment was unlawful, and could not be made lawful retrospectively by the Ministry of Justice or the court, but he decided that no action should be taken to disturb the burial or to refer the matter for police investigation. [Re St Oswald Filey [2019) ECC Yor 8] [Back] [Top]
Re Sutton Cemetery  ECC Swk 6 The petitioner wished to exhume the cremated remains of his late wife from Sutton Cemetery and reinter them at the North East Surrey Crematorium in Morden. He had agreed to his wife’s ashes being interred at Sutton in the grave of his wife’s mother and grandmother. The Petitioner expected that he too could have his ashes buried with those of his wife in due course. However, owing to a rift between the petitioner and his wife’s sisters, the sisters would not agree to the petitioner’s ashes being buried with those of his wife. The Chancellor decided that this was an exceptional case where he could grant a faculty for exhumation and reinterment, so that the petitioner’s ashes could be buried in the same grave as the ashes of his wife in due time. [Re Sutton Cemetery  ECC Swk 6] [Back] [Top]
Re Gravesend Cemetery  ECC Roc 6 A husband and wife sought permission to exhume the cremated remains of the wife’s father (“the deceased”), who died in 1982, from the consecrated part of Gravesend Cemetery with a view to the remains being scattered in the Thames View Crematorium along with the cremated remains of the deceased’s late wife, who had recently died. The Chancellor could find no special circumstance which would justify him in granting a faculty. [Re Gravesend Cemetery  ECC Roc 6] [Back] [Top]
Re St. Bartholomew Naunton Beauchamp  ECC Wor 5 The petitioner wished to have the ashes of her mother exhumed and scattered over the hills north of Newtown in Powys. The ashes had been buried in the churchyard at Naunton Beauchamp, at the insistence of the petitioner’s former sister-in-law. All the deceased’s other children recalled their mother expressing a wish to have her ashes scattered in Wales, and they supported the petitioner’s wish. Whilst accepting that this was a borderline case for allowing an exhumation as an exception to the general rule against disturbing human remains, the Chancellor decided to grant a faculty to the petitioner: ‘ … whilst it is “generally” right that mourners should learn to let go, it appears that she will be unable to do so until her mother’s ashes have been scattered as proposed; only then, it seems to me, will she be able to recover her psychological and spiritual health. [Re St. Bartholomew Naunton Beauchamp  ECC Wor 5] [Back] [Top
Re St. Mary Syderstone  ECC Nor 1 The incumbent refused to approve the use of the words “Dad” and “Grandad” in the inscription for a memorial, the reason given being that the parochial church councils of the benefice had agreed, in a written policy, that (inter alia) only the words “Father” and “Grandfather” should be used on memorials. The Chancellor could find no real justification for this policy and granted a faculty to authorise the use of the words “Dad” and “Grandad”, which she did not find objectionable. (Although not a reason for the decision, it is noted in the judgment that 15 inscriptions on memorials in the churchyard used the words “Dad” or “Grandad” and there were 12 examples which showed use of female equivalents, such as “Mum” or “Nan”.) [Re St. Mary Syderstone  ECC Nor 1] [Back] [Top]
Re Holy Rood Bagworth  ECC Lei 6 The Commonwealth Graves Commission applied for permission to erect in the churchyard a War Grave memorial to a soldier who died in 1918 of a disease acquired in France, whilst on active service. The exact position of his grave in the churchyard was unknown. But the Chancellor agreed to grant a faculty for the erection of the memorial. [Re Holy Rood Bagworth  ECC Lei 6] [Back] [Top]
See Re St. Bartholomew Aldbrough  ECC Yor 7 supra.
Re All Saints Preston  ECC Bla 4 The petition was brought on behalf of the Blackburn Diocesan Board of Finance which wished to transfer to Lancashire Museum Services a bell from the church, which had been closed four years previously. The future of the building is being dealt with as such by the DBF under the relevant provisions. When the application was first subject to the Public Notice procedure under the Faculty Jurisdiction Rules 2015, no objection or other representation was forthcoming, and the Chancellor therefore granted the application .
A local MP wrote to the Diocesan Registry to say that the bell should be retained in the church because a local group, the Church Kirk Regeneration Trust (“CKRT”), was in the process of completing an assessment of the site, after which they intended to develop proposals for the use of the church building. No formal orders were made on receiving this out of time objection, but the implementation of the faculty was essentially put on hold for further consideration . The history of the bell which dated from 1537 is given in paragraphs  to .
With regard to the status of the bell as a “church treasure”, the Chancellor observed:
“. … I do not think every item of historic interest has to be categorised as such, and the circumstances in which disposal is contemplated is a very relevant factor. Here the building has ceased to be used for worship, it has no body exercising the responsibilities formerly exercised by the Parochial Church Council (‘PCC’), and it has no ‘congregation’, who could ‘appreciate’ its presence. Who can it be a treasure for? If its familiar surroundings have been removed, what is the best thing to do with it?
. Closed churches are vested in the DBF, who have to assume some responsibilities that were previously exercised by the PCC. These will include insurance and protection of the building against intruders and would-be thieves. In other words, the DBF is funding the costs of ‘keeping’ the church until the building is disposed of. The DBF, and many of the churchgoers in Blackburn diocese, who are providing funds out of which these costs are met, will have very mixed feelings about the fact that scarce funds … .
. The DBF is required by statute to seek to obtain an alternative use for the building so it is not left simply to deteriorate. They have a positive duty to find such a use and cannot be expected to simply put things on hold pending the formulation of proposals by groups such as CKRT. Sometimes it is possible to tum the former church into an exhibition space, or library or something similar, and sometimes it can be disposed of so it can be turned into a single domestic accommodation or multiple dwellings. In my experience, none of these desirable uses is easily or quickly achieved. Any of these changes of use will be expensive to accomplish. Even restoring the building more simply so it can be a community resource, is likely to require a considerable sum of money at the outset, and ongoing maintenance costs.
The Chancellor decided that the matter should not be left open indefinitely. He therefore made an order that the bell should be transferred to the Museum on loan for an interim period expiring on 31 December 2021 . He noted that the CKRT should be party to future proceedings and three months before the expiry of the period, it should submit written proposals for the bell for a further decision by the then Chancellor. In the absence of any proposals, the bell should remain permanently with the Museum. [Re St. James Church Kirk  ECC Bla 4] [Back] [Top]
Recent summaries of specific issues that have been considered in the consistory courts include:
- “Major Churches” and “Festival Churches” – I, 4 December 2019.
- “Major Churches” and “Festival Churches” – II, 9 December2019.
- Faculty Jurisdiction – further amendments, April 2020, 12 December 2019.
- New Church Rules for 2020, December 2019.
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, most recently on 19 December 2019 when applications were approved, subject to conditions:
- Lichfield Cathedral: Masonry repairs to the South Nave Aisle Flying Buttresses.
- Lincoln Cathedral: To insert three Cintec anchors above Panel 15 of the Southern Run of the Romanesque Frieze.
- Ripon Cathedral: To carry out a scheme of cleaning, repair and re-finishing to the choirstalls and misericords to improve the visual appearance and prevent cementation of dirt on the surface, and consequent deterioration.
- Southwell Minster: Chapter House sondage to establish the nature and position of the intervention into the foundations of the Chapter House made by Ewan Christian undertaken to check some movement in its walls.
- York Minster: To install a poured concrete floor and cut away part of the moulding to a pier base in the north pulpitum chamber as part of the Great Organ refurbishment.
- Durham Cathedral: The application for the installation of 60min fire separation to passageway between the Refectory Library and Prior’s Hall was delegated, with conditions, to the Cathedral Fabric Advisory Committee for determination.
- Newcastle Cathedral: The application for an archaeological investigation under nave floor when floor taken up prior to new flooring laid was refused, ” to prevent the unnecessary disturbance of human remains”.
The next meeting of the CFCE is on 30 January 2020/
The latest Oxford diocese e-news includes an item from the Diocesan Secretary, Mark Humphriss, which gives an insight to the work of the Diocesan Advisory Committee (DAC). Funded by the Parish Share, the DAC office provides a holistic service to parishes, from a project’s inception to its execution. Advising on the statutory permissions process, all of the Oxford DAC team are experienced buildings professionals, spanning geology, civil engineering, repair and conservation techniques, project management, history and art.
The Oxford team, which comprises five officers (3.5 full-time equivalent), is the busiest DAC in the country – the diocese covers three counties (292 benefices, 621 parishes), it is the fifth largest in land area (2,220 square miles) and it has by far the largest number of churches (815). The DAC currently deals with 1000+ cases per year, around double what it was a few years ago; “a great sign of many parishes progressing creative projects, as well as others having to deal with repairs”. It was accepted that there are currently “unacceptable delays”, but on 4 December, the Bishop’s Council agreed to the recruitment of an additional full-time officer; however, “it will take a few months to clear the backlog”.
Notes on the conventions used for the navigation between cases reviewed in this post are summarized here. The photographs used in this post do not necessarily relate to the cases discussed.