Ecclesiastical court judgments – February (II)

Review of the ecclesiastical court judgments during February 2020

An earlier post reviewed the first seven of the sixteen consistory court judgments that were circulated in February; these related to Reordering, extensions & other building works and Bells. Also included were reviews of links to other posts relating to ecclesiastical law. Privy Council Business, and CFCE Determinations.

This second part covers the remaining nine judgments relating to: Exhumation; and Churchyards and burials.


Exhumation

Errors in burial

Re St. John Washborough [2019] ECC Lin 6 The petitioners’ parents had intended to be buried in the same grave. The Petitioners’ mother died in 2008 and was buried in the chosen grave. When the petitioners’ father died in 2019, it was discovered a few days before the funeral that the grave of their mother had not been dug sufficiently deep to accommodate a second burial, and so, as a ‘temporary measure’, the father was buried in another part of the churchyard [1,2].

The petitioners sought a faculty to authorise the exhumation of their mother’s body, so that the grave could be dug deeper to accommodate the burial of their father’s body. The Chancellor accepted that a mistake had been made in that the instructions to dig a double depth grave in 2008 had not been followed [8 at (iii)]; he granted a faculty for the double exhumation and reinterment, conditional upon it being possible to dig the mother’s grave deeper, failing which the mother’s remains could be exhumed and reinterred in her husband’s grave [10].

In granting the faculty, the Chancellor commented [9]:

“… if the coffin could be kept beneath the surface of the ground while work was done around it, then a faculty for exhumation may not have been required. I make no finding upon this issue which has not been argued before me. However, it is clear that this is not proposed and there is no reason why her coffin cannot be lifted from the grave for this excavation work to be carried out”.

It will be remembered ensuring that the coffin is maintained below the surface of the ground provides a rationale for the illegal practice of “coffin sliding”, as discussed in Re Fairmile Cemetery Lower Assendon [2017] ECC Oxf 2,

[Re St. John Washborough [2019] ECC Lin 6] [Back] [Top]

Re St. Philip & St. James Up Hatherley [2020] ECC Glo 2 The petitioner sought a faculty to authorise the exhumation of the cremated remains of his wife from the churchyard at Up Hatherley, in order that the remains might be either scatters or re-interred in unconsecrated ground in Australia, where the couple had lived since emigrating there in 1980 and had brought up their family [1,3].

Following his wife’s death in Australia, the petitioner, against the wishes of his family, including his wife (an atheist), who had made it known to the rest of her family that she had no wish to be buried in a Christian churchyard in England, arranged to have his wife’s ashes interred in the churchyard at Up Hatherley [5].

After recovering from an illness after the interment in England, the petitioner realised that he had made a mistake in having his wife’s ashes interred in an English churchyard against her wishes and wished to have her ashes moved to Australia.

The Deputy Chancellor expressed concern that the ashes of the petitioner’s wife’s ashes might not be recoverable, having been ‘poured into a hole’ rather than buried in a casket; however, he was reassured through the Registrar’s researches, that the location has not been used by any other burial subsequently, and that it is not anticipated that there will be any difficulty in recovering the ashes from a grave which has been diligently tended by her sister [17].

The question for the Deputy Chancellor was whether the petitioners wife’s complete lack of Christian belief, in the form of atheism, coupled with the information that she did not wish to be buried in England, was equivalent to the precedents which sanctioned exhumation in cases involving different beliefs [25]. She was satisfied that a case is made for the similarity, and determined that the mistake constituted an exceptional ground for permitting exhumation. [Re St. Philip & St. James Up Hatherley [2020] ECC Glo 2] [Back] [Top]

Re Benton Cemetery [2019] ECC New 1 It had been the wish of George Nicholson to be buried in the grave of his father, who had died in 1945 and was buried in the War Graves section of Benton Cemetery. When George Nicholson died in 2018, his ashes were placed in the grave marked by his father’s memorial. In 2019, when George Nicholson’s sister died, and it was proposed to inter her ashes in her father’s grave, it was discovered that in 2006 the Commonwealth War Graves Commission had removed the memorial of George Nicholson’s father and also the adjacent memorial for restoration work and the two memorials had been replaced the wrong way round, so that George Nicholson’s ashes had been placed in the grave next to his father’s.

The burial authority applied for a faculty to rectify the situation by the exhumation of George Nicholson’s ashes from the neighbouring grave, so that they could be interred in his father’s grave. The Deputy Chancellor noted the well-established position on the permanence of Christian burial, definitively set out in the judgment of the Court of Arches in Re Blagdon Cemetery [2002] Fam 299, informed by the considerations of the Bishop of Stafford’s Theology of Burial [9(a)]. He commented:

“[11]. In the circumstances of this case it is not necessary to look beyond the Court’s ruling that a simple error in administration, such as burial in the wrong grave, the exact circumstances here, can form a ground upon which a faculty for exhumation can be granted. The Court advised that in such circumstances it may be for those responsible for the cemetery to apply for exhumation, as has occurred here. It went to say:

“Faculties can in these circumstances readily be granted, because they amount to correction of an error in administration rather than being an exception to the presumption of permanence, which is predicated upon disposal of remain in the intended not an unintended plot or grave.”

The Deputy Chancellor was satisfied that there was a mistake in this case arising from the unfortunate transposition of the headstones by the CWGC and the failure by it, North Tyneside Council’s Bereavement Services and the families of George Nicholson senior and Henry Carnegie to note the error until November 2019, some 17 months after George Nicholson’s remain were interred. There had been no delay in seeking to right this mistake, the petition being issued on 28 November 2019. Faculty granted for exhumation and re-interment. [Re Benton Cemetery [2019] ECC New 1] [Back] [Top]

Other

Re St. Helen Boultham [2019] ECC Lin 9* The petitioner’s late daughter had died in a road traffic accident in 1966, aged just 16 months; she was buried in an unmarked grave. The petitioner and his late wife had always wanted to be buried with their daughter. However, the churchyard at Boultham had been closed for burials since their daughter’s death, andt the petitioner’s wife had been buried in Newport Cemetery in Lincoln. The petitioner sought permission for the exhumation of his daughter’s remains and their reburial in a reserved plot close to her mother’s grave.

The Chancellor outlined the factors considered in Re Blagdon Cemetery [2002] Fam 299 which may support a submission that special circumstances have arisen which permit the remains to be exhumed [9]. However, he noted

“[10]. All the factors set out above are predicated on the assumption that the remains can be recovered by undertakers in an exhumation and reinterred. In this case I am not satisfied that with the passage of time that it is now possible to recover any remains of such a young child buried in 1966. I rely upon the professional assessment of the funeral director set out above in this judgement. If the remains will now no longer be capable of exhumation, then no exhumation can be ordered. I am satisfied that this is the situation here.

[11]. Additionally, in any exhumation it would also be necessary to be able to locate with reasonable accuracy where the human remains are located that are to be exhumed. If I had been persuaded that the remains were capable of being recovered in an exhumation then the issue of further work to be done in locating with reasonable accuracy those remains could be investigated further, and I would allow the family time to investigate a ‘family grave’ option at the cemetery. However, in the absence of any remains to recover after 53 years, that work is not required, and I am unable to authorise an exhumation”.

[Re St. Helen Boultham [2019] ECC Lin 9] [Back] [Top]


Churchyards and burials

Churchyard Regulations

Re St. Mary Canwell [2020] ECC Lic 2* The petitioner’s mother died in 2013 and is buried in Canwell churchyard. Her father had died in 1989, and his cremated remains had been interred, or possibly scattered, in the grounds of Burnley Crematorium, in the town at which the family was living at that time. Although there was a memorial plaque at the Burnley Crematorium [1,2], space on the memorial wall at Burnley Crematorium is limited and Burnley Borough Council, who run the crematorium, have a policy of moving memorials after 25 years.

Whilst there is a degree of flexibility in enforcing this time limit – payment can be made for an additional period of time – the Chancellor accepted that that in due course, the memorial will be removed even if payment is made for an extension of time [5]. It is in these circumstances that the petitioner was seeking a faculty authorizing the installation of the memorial plaque from Burnley Crematorium at the foot of the headstone, which is already in place at the point of her mother’s grave [6].

Two issues arose in respect of this petition: i] whether it is appropriate to permit a memorial to the petitioner’s father in this churchyard notwithstanding the fact that his remains were interred elsewhere; ii]. whether this particular memorial bearing the symbol of a set square and compass should be permitted [9].

Although a memorial or inscription will not normally be permitted unless the body or cremated remains of the person commemorated are interred in the churchyard in question, the Chancellor was satisfied that satisfied that the absence of a memorial elsewhere can justify the installation of such a memorial, and “that can be done by use of appropriate wording on the memorial either in the body of the relevant inscription or potentially in discreet lettering on the edge of the memorial”, Re St Peter, Limpsfield [2004] 1 WLR 2504 and St Peter & St Paul, Nutfield [2018] Ecc Swk 1 [11]. However, the memorial plaque currently at Burnley Crematorium gives no such indication and so if it were to be installed at Canwell there would be a risk of creating the impression that the petitioner’s father’s remains were also in Canwell churchyard [12].

With regard to whether the proposed memorial be permitted [13] to [22], referring decision of Tattersall Ch in Re St. Oswald Dean [2016] ECC Car 5, the Chancellor concluded:

“[22]. It is in the light of their potential to be a source of controversy or to cause offence to a significant body of Christians that it is not appropriate to permit memorials which bear Masonic symbols. If the memorial to Mr. Smith were not already in existence I would have no hesitation in concluding that it was in an inappropriate form. The fact that the memorial already exists cannot make a difference. If it is inappropriate for a memorial bearing such a symbol to be introduced then it is inappropriate even if the introduction comes through the transfer of an existing memorial from elsewhere”.

Faculty refused. [Re St. Mary Canwell [2020] ECC Lic 2] [Back] [Top]

Re St. Denys Aswarby [2019] ECC Lin 10 The Petitioner’s grandparents were buried in a grave which has a double width headstone and a double kerb surround. Over time, the remains of the petitioner’s late husband, her sister and her parents had been interred in the double grave. The petitioner now wished to carry out some renovation of the grave and place three grey granite tablets within the kerbs, with inscriptions recording the names of those interred since the petitioner’s grandparents were interred [2,3]. The Chancellor granted a faculty subject to a condition that there should be consistency in the format of the dates of death [6]. [Re St. Denys Aswarby [2019] ECC Lin 10] [Back] [Top]

Re St. Laurence Alvechurch [2020] ECC Wor 1 The petitioner wished to place a memorial on her mother’s grave. The parish priest declined to authorise the proposed memorial as it did not fall within the scope of the Diocesan Guidelines and therefore was outwith his delegated authority [7]. The Chancellor explained:

“[11]. … the types of memorial referred to in the Guidelines are only those that may be approved by the incumbent as a matter of routine – other types of memorial may be appropriate in particular cases. That is why a non-standard memorial may be authorised, but only in response to a faculty application, so that it can be more carefully considered.”

The design resembled a scroll, between two hand-carved angels, above a plinth resting on a base. The central “scroll” and the plinth and base were in Rustenburg dark grey granite, and the two angels in a paler stone [2]. The Chancellor considered that carvings of angels in full relief would not be appropriate to the setting, but he would not object to carvings of angels in low relief on the memorial stone.

Chancellor Mynors agreed with the DAC that the churchyard contains memorials that are broadly uniform in terms of size, colour (mid to dark grey) and form (rectangular slab); but the detailed designs vary considerably. He therefore did not consider that it would be inappropriate to introduce a memorial featuring low-relief sculpture… and also in the memorials nearby. However, he did not consider that full-relief angels, as proposed, would be appropriate [31]. He commented

“[32]. I do not think that it would be helpful simply to refuse a faculty for the proposed memorial on [the basis of the design alone], as I have no doubt that it will be possible for [the Petitioner] to find a suitable design, featuring low-relief sculpture – probably in conjunction with the DAC. And the wording of the proposed memorial will need to be approved by the Rector.

On this basis he therefore granted a faculty for a memorial, subject to the final design being approved by the Diocesan Advisory Committee or, in default of such approval, by the court [33]. [Re St. Laurence Alvechurch [2020] ECC Wor 1] [Back] [Top]

Reservation of grave space

Re St. James Brownhills [2020] ECC Lic 3 The petitioner wished to reserve a triple-depth grave for himself, his brother and his sister. The Parochial Church Council (“the PCC”) was opposed to the reservation of the grave, as it had maintained a policy of not supporting the reservation of grave spaces for at least forty years. The Chancellor found that there were exceptional reasons to allow the grant of a faculty: (1) the grave would be for three family members; (2) the graveyard already contained the graves of a number of members of the petitioner’s family; (3) there were concerns (undisclosed in the judgment) which were personal to the petitioner. The Chancellor also noted that, notwithstanding the policy of the PCC, members of the PCC were sympathetic to the petitioner’s request. [Re St. James Brownhills [2020] ECC Lic 3] [Back] [Top]

Trees

Re St. Mary Chithurst [2020] ECC Chi 1 This 14-page judgment commences “[t]his is at heart a straightforward petition: some may consider it trivial. It concerns a proposal to fell an ash tree…” [1]. However, the proceedings became “controversial and protracted”, with an associated impact on costs, “in part due to the objections of neighbours. … [b]ut in large measure … due to the first petitioner not following the Court’s directions with regard to public notice and making repeated ad hominem criticisms of unnamed diocesan employees and the staff at the registry, all of which have been found to be ill-founded, and most rooted in a fundamental misapprehension of the legal process which the petitioners chose to invoke”.

The proceedings have been summarized concisely by the Ecclesiastical Law Association, viz.

“The Parish Council, which was responsible for the maintenance of the closed churchyard at Chithurst, wished to fell an ash tree, which was suffering from ash die-back, on the grounds that the disease might cause the tree to become dangerous within the next few years and cause damage to the church or passers-by. The proposal was opposed by two neighbours. The Chancellor was satisfied that the petitioners had made a good case forthe felling of the tree and granted a faculty.

A separate post reviews the case on more detail. [Re St. Mary Chithurst [2020] ECC Chi 1] [Post] [Back] [Top]


Cite this article as: David Pocklington, "Ecclesiastical court judgments – February (II)" in Law & Religion UK, 6 March 2020, https://lawandreligionuk.com/2020/03/06/ecclesiastical-court-judgments-feburary-ii/

2 thoughts on “Ecclesiastical court judgments – February (II)

    • Thanks. At least the type is not in any of the links &c where correction is a more lengthy process. dp

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