Ecclesiastical court judgments – April (II)

Review of the ecclesiastical court judgments during April 2020

Thirteen consistory court judgments were circulated in April, and the seven featured in this first part of the round-up all relate to Reordering, extensions & other building works and the installation of two heraldic banners. This second part reviews the remaining six judgments which concern OrgansExhumation and Churchyards and burials. This part also includes reviews of CDM Decisions, Privy Council Business, and CFCE Determinations, as well as links to other posts relating to ecclesiastical law. The latter have included longer analysis of a number of this month’s consistory court cases, including: Re St. Mary the Virgin North Aston and Re All Saints Hesketh with Becconsall, a joint post on petitions seeking the installation of new stained glass; Re St. Mary Bampton Proper on the restoration of an historic organ; and Re St. Mary the Virgin Redcliffe which was reviewed last month, and Re St. Mary Chithurst. from earlier in the year.


Exhumation

Family graves

The creation of a family grave is an aspect considered in some of the judgments below.

Errors in burial

Re St. Mary Wootton [2020] ECC Oxf 5 The petitioner’s father had been buried in the churchyard in 1982. In 1983, the petitioner’s mother obtained a faculty reserving the grave next to her husband, as the stony nature of the ground had not permitted the digging of a double depth grave for the two of them. When the petitioner’s mother died in 2015, it was found that another burial had encroached on the reserved grave, so that it was not possible for the petitioner’s mother to be buried in the grave she had reserved. Her body was buried in a nearby grave and the churchwardens set aside an empty plot next to her grave so that her late husband could be re-buried there [2].The Chancellor noted:

“The petitioner appears to have taken the view that it was for the church, and not for him, to sort the matter out, whilst the church took the view that it was for the petitioner to make the appropriate faculty application to the court” [2]

After reviewing Re Blagdon Cemetery [2002] Fam 299, the Chancellor observed that he present case bears some similarity to the case of Re St. John Washborough [2019] ECC Lin 6; in the latter, Chancellor Bishop addressed ta number of factors which supported the submission that special circumstances had arisen which might permit the remains of the petitioners’ late parents to be exhume, viz. lapse of time; mistake; precedent; family grave.

In the latter there were two features that distinguish it from the instant present: the petitioners had acted speedily in bringing the petition forward within three months after the father’s funeral whereas here there has been a lapse of time of some five years; secondly, the exhumation of the mortal remains of the petitioner’s late father and their re-interment next to the grave of his late mother will not strictly result in the creation of a family grave but rather in the creation of two family graves next to each other [8].

The instant case was “not strictly the correction of an error of administration of the sort contemplated by the Court in Re Blagdon Cemetery because the human remains which are sought to be exhumed have been interred in their intended grave plot, and it is the human remains of the petitioner’s mother that have been laid to rest in an unintended grave plot. However, the subtlety of that distinction was not one that should lead the court to take a different approach to the mistake that has undoubtedly occurred, which was not the fault of the petitioner.

More problematic, however was delay of five years in presenting the petition. The court did not accept that the petitioner could have been left in any doubt as to what he should have been doing in the light of the Registry’s letter to the petitioner of 9 October 2015. Nevertheless, it is clear that the petitioner genuinely feels that the responsibility for remedying the present situation lies with the church; and the court notes that in Re Blagdon Cemetery (at paragraph 36 (iii)) the Court of Arches did say that in cases of genuine mistake: “… it may be those responsible for the cemetery or churchyard who apply for a faculty to exhume the remains from the wrong burial plot or grave.”

The court was also sympathetic to the Rector’s personal view that exhumation is not strictly necessary because the petitioner’s parents are buried in the same churchyard and, from a theological point of view, they are now in the same place. However, in satisfied that by acceding to this application, would not be creating an undesirable precedent or doing anything to approve a practice of regarding mortal remains as ‘portable’ or encouraging future applications founded upon that ground. Furthermore, the Chancellor noted that the common vision of this Diocese of Oxford is to become a more Christ-like Church, proclaiming itself to be contemplative, compassionate and courageous for the sake of God’s world. The court must apply the law; and in doing so it should act with compassion [11]. Faculty granted. [Re St. Mary Wootton [2020] ECC Oxf 5] [Back] [Top]

Other

Re St. Andrew Cubley [2020] ECC Der 2 This judgment concerns a family dispute of which there is little to add to the following concise summary which was circulated Ray Hemingray of the Ecclesiastical Law Association:

“The body of a woman was buried in the grave of her brother. The brother’s widow and son were not consulted by the woman’s sons or the funeral director or the parish priest. Upon discovering what had happened, the son applied for a faculty for exhumation, as he felt that he and his mother should have been consulted and he would have objected to the interment in his father’s grave, had he known about it. The Chancellor took the view that the woman’s sons had kept quiet about the existence of the son and widow, in order to have their mother buried in an existing grave in Cubley, where she did not have a legal right to be buried. However, the Chancellor refused to grant a faculty for exhumation. Although it was regrettable that the petitioner and his mother had not been consulted, the petitioner had “not established any basis sufficient in law based on any property right analogous to a reservation, or otherwise, to support his petition for exhumation”.

Chancellor Hodge was not prepared to characterise the circumstances as exceptional within the meaning of the Re Blagdon Cemetery [2002] Fam 299; however, even if it were so classified,

“… it would only be the first step in obtaining an order for exhumation. In other words, it could be a necessary step towards such an order being granted, but not a sufficient one. It would not be an inevitable conclusion without more. In my view, by analogy with the Filey case discussed above [Re St Oswald Filey [2019) ECC Yor 8], the Chancellor still has to decide whether, in all the circumstances such an order ought to be made” [72].

[Re St. Andrew Cubley [2020] ECC Der 2] [Back] [Top]

Re St. Michael Tilehurst [2020] ECC Oxf A petition was granted to a couple who live in Carbury, County Kildare, Ireland to exhume the mortal remains of their baby son which were laid to rest in the churchyard of St Michael’s Church, Tilehurst, Reading on 8 April 1993. The baby had died a “cot death” three months after his birth [1]. The family had lived in Ireland for 20 years and the petitioners have recently purchased a double burial plot (for up to six people) in the consecrated cemetery of the local family church at Derrinturn in Carbury. The plot has been purchased with the intention that the baby’s mortal remains will be reinterred there and that both petitioners will be buried there in due course, close to immediate family members [3]. The father was suffering from terminal cancer and wished to be buried with his child in the family plot.

With regard to the length of time since the interment, Chancellor David Hodge cited Re St. Helen Boultham [2019] ECC Lin 9 in which a petition concerning a family grave was refused on the grounds that the Chancellor was not satisfied that, with the passage of time, it would still be possible to recover any remains of a 16 months old child who had been buried 53 years previously in an unmarked grave. In the instant case, there was not the added complication of an unmarked grave, and the petitioners confirmed that they had consulted a funeral director in Ireland concerning the re-interment [6].

The Chancellor cited Tattersall QC in Re George Henry Humphreys deceased [2019] ECC Man 1 who in paragraphs 11 and 12 summarized the principles laid down in Re Blagdon Cemetery [2002] Fam 299. He noted that of particular relevance to the instant case were the factors of sudden and unexpected death, and burial in a family grave. Also of relevance was Re St. James Bulkington [2019] ECC Cov 3. In his decision, Chancellor Hodge observed that the decided cases show how the court’s discretion has fallen to be exercised in particular factual situations because the legal principles of certainty, fairness and justice dictate that similar cases should be disposed of in similar ways [14]. However “no two cases are precisely similar”. He noted seven aspects of the instant case which indicated that it should be treated as exceptional [14]. Critically, the court was satisfied that by acceding to this application it would not be doing anything to approve a practice of regarding mortal remains as ‘portable’ or to encourage future applications founded upon that ground [15]. Additionally, the court bore in mind the common vision of this Oxford diocese to become a more Christ-like Church [16]. [Re St. Michael Tilehurst [2020] ECC Oxf 2] [Back] [Top]


Churchyards and burials

Development of churchyard

Re All Saints Biddenden (1) [2020] ECC Can 1

The petitioners sought a faculty authorizing the reuse of two areas of the churchyard for burials, (identified in [1]), which had not been used for burials since 1850. One of these two areas is to be held in reserve in case there are problems with the other [2]. In addition, the Petitioners indicated that they had encountered difficulties with maintaining proper order in the existing churchyard with items such as artificial flowers, solar lights, artificial grass and curbing being introduced; they state that such matters “do not appear to be covered by the current churchyard regulations” and propose to require families whose loved ones are to be buried in the new areas to enter into an agreement to uphold the regulations, as is, evidently, the parish’s current practice [3].

The Petitioners’ Statement of Needs explained that there are 4 burial spaces left, and recent experience (30 spaces used over the preceding 13 years) indicates that these would be used within 2 years. Four options were considered by the PCC, of which the favoured one is:

“Re-use other parts of the churchyard. The existing burial ground is a relatively large, 4 acres site; there are several large sections without tombstones. Local grave diggers argue that it is safe to assume that the immediate area around the church has been re-used several times. They argue that there was little point in rodding to find out about previous burials, as in areas older than about 60 years very little information would be gained. From previous experience in other churchyards grave diggers argue they seldom encounter human remains. Single depth burials would reduce the likelihood of digging up bones”.

The Petitioners added that they did not want to petition for closure of the churchyard as this would deny parishioners the opportunity for burial within the parish. With regard to Option 2, which was the one chosen, the Petition proposes that some graves might be dug at double depth but that this would be monitored depending on the frequency with which human remains are encountered [6]. The DAC recommends the proposals for approval, subject to conditions and no representations were made following the statutory public notice and attracted no representations as a result; the Biddenden Parish Council was also supportive [7, 8].

This was the first consideration of the reuse of graves in the Canterbury diocese; the legal position was therefore considered in detail in paragraphs [11] to [15]. This included reference to the recent cases: Re St. Mary & St. Hugh Harlow [2018] ECC Chd 1; Re St Michael Heighington [2016] ECC Dur 3 (where the cases were helpfully reviewed by Iles Dep. Ch); St Oswald, Methley with Mickletown [2016] ECC Lee 2; Re Caister Parish Cemetery [2016] ECC Nor 3; St Nicholas Swayfield [2003] 7 ECC LJ 235.

The Commissary General rebutted the suggestion in the Petition indicates that the introduction of various objects into churchyards was not covered by the Churchyard Regulations 2015. She said: “I do not propose to give guidance as to the terms of the parish’s agreement with relatives, save to say that it should not be inconsistent with the Churchyard Regulations 2015 and should refer to the Churchyard Guide which accompanies the Regulations and which gives further information in accessible language” [17].

The Commissary General granted a faculty subject to standard conditions concerning the reverent treatment of any human remains uncovered as burials occur and for the proper care and recording, as appropriate, of any archaeological artefacts. For the benefit of other parishes in the diocese, she indicated that reburial would normally be allowed where there had been no burials in an area to be used for at least 75 years. She also imposed the suggested conditions to prevent removal of any memorials in the relevant areas and prohibiting any form of delineation of the areas as a whole [18]. [Re All Saints Biddenden [2020] ECC Can 1] [Back] [Top]

Churchyard Regulations

Re All Saints Biddenden (2) [2020] ECC Can 2 The petitioner wished to apply fine shingle or fine gravel to the area within the kerbs of two graves for the purpose of weed suppression [1]. Part B of the Petition Form and an Addendum explain that the PCC does not support the Petition. There are 10 other kerbed memorials in the churchyard. At its meeting on 5th November 2019, the PCC unanimously decided to oppose the Petition as the Churchyard Regulations provided that “kerbs, railings or chippings, whether raised or at ground level, are not permitted”; he PCC had been endeavouring to enforce the regulations. It would have preferred the kerbs to be removed [4].

The headstone on one of the graves is maintained by the War Graves Commission, to whom special notice was given, r9.4 FJR. I also directed that the Diocesan Advisory Committee should advise me about the Petition. The DAC’s advice was to the effect that “shingle should not be permitted, being unconvinced pea shingle would suppress weed growth.” It added: “[the kerbs] are longstanding and may well have been put in when they were allowed. There are also other kerbs around the grave behind the war grave. It is difficult to justify a requirement to remove them” [6].

The Commissary General noted that the current Regulations carried forward the position under her predecessor’s Regulations; the accompanying Churchyard Guide explains that kerbs, railings and chippings are not permitted because of the practical difficulties which they can present for those whose job it is to maintain churchyards and the fact that such features can pose safety hazards [7].

Citing the Worshipful Mark Hill QC, who in Re St. John the Baptist Adel and St. Michael Markington [2016] ECC Lee 8 said at para. 7

“The terms and content of the Churchyard Regulations will, of course, be a relevant factor – often highly relevant and doubtless on occasion determinative. But they will be one of the constellations of infinitely variable factors which the court must consider on a case-by-case basis…”.

Agreeing with this approach the Commissary General said there was nothing in the Canterbury Regulations which was inconsistent with it. noting that at paragraph 13:

“If a proposed memorial is not authorised by the Regulations, a Faculty must be sought for its introduction. The Commissary General … will have regard to the principles set out in this Guide and underlying the Regulations in deciding whether to allow departures in specific cases. The views of the Parochial Church Council and the Diocesan Advisory Committee will also be taken into account” [13].

The Commissary General considered the factors in favour and against allowing the proposal and decided, on balance, to grant a faculty: there was no petition for the removal of the kerbs; the introduction of fine shingle would not make mowing or strimming more difficult; the appearance of fine shingle was more natural than chippings; and the fine shingle would slow down the growth of weeds [16]. She said:

“On balance, I have decided to allow the Petition. My general aesthetic and practical sympathies in relation to this form of memorial are with the PCC and DAC, but it is not the purpose of the faculty jurisdiction to enable chancellors to impose their tastes on others…”.

[Re All Saints Biddenden [2020] ECC Can 2] [Back] [Top]

Environmental Permit

Parochial Church Council environmental permit application advertisement

  • Parochial Church Council, St Mary’s Church, Chard,TA20 2EA: (7 April 2020). The Environment Agency has received a new bespoke application for an environmental permit under the Environmental Permitting (England and Wales) Regulations 2016. Application number: EPR/MB3590AK/A001. This is for the discharge of 0.1 cubic metres per day to groundwater at ST 32290 08214 via a surface water infiltration system.
  • Parochial Church Council, St Lawrence Church Knodishall PCC, IP17 1TP, (8 April 2020). The Environment Agency has received a new bespoke application for an environmental permit under the Environmental Permitting (England and Wales) Regulations 2016. Application number: EPR/QB3497AP/A001. This is for the discharge of 1.0 cubic metre per day to groundwater at TM 42587 61966 via a Trench Arch system.
  • PCC of the Ecclesiastical Parish of St Peter, Ash, GU12 6LU: (24 April 2020) The Environment Agency has received a new bespoke application for an environmental permit under the Environmental Permitting (England and Wales) Regulations 2016. Application number: EPR/QB3497AP/A001. This is for the discharge of 0.07 cubic metre per day to groundwater at SU 89734 50787 via a Trench Arch system.
  • Wellingore Village Church Council: environmental permit application, LN5 0BX, (27 April 2020). The Environment Agency has received a new bespoke application for an environmental permit under the Environmental Permitting (England and Wales) Regulations 2016. Application number: EPR/QB3497AP/A001. This is for the discharge of 0.18 cubic metre per day to groundwater at SK 98216 56527 via a Trench Arch system.
  • Parochial Church Council of St Giles Church, TN21 9NH, (28 April 2020). The Environment Agency has received a new bespoke application for an environmental permit under the Environmental Permitting (England and Wales) Regulations 2016. Application number: EPR/RB3094EE/A001. This is for the discharge of 0.16 cubic metre per day to groundwater at TQ 65781 19059 via a Trench Arch system.

Organs

Re St. Mary Bampton Proper [2020] ECC Oxf 6 Part way through a restoration program for the church organ (which was authorised by faculty in 2015), the organ builder had died and the dismantled organ had been moved to another organ builder for storage. The petitioners now wished to continue the restoration work and to return the organ in its previous position against the east wall of the south transept, with the addition of some digital stops, to improve the projection of musical sound into the nave. The British Institute of Organ Studies and the Church Buildings Council objected to the addition of digital stops to the early 19th-century organ. However, the Chancellor was satisfied that the petitioners had made a good case for the proposed restoration and improvement works and he granted a faculty. [Re St. Mary Bampton Proper [2020] ECC Oxf 6] [Post] [Back] [Top]

[Note: Bampton Proper: St Mary is the church’s legal name as given by the Church Commissioners, Church Heritage Record 627236. The photograph normally used to illustrated organs in our judgment round-up is of the instrument at Bampton Proper before it was dismantled

This judgment is considered in more detail in our post A dismantled organ, a deceased organ builder, and a digital dispute]


Links to other posts

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

Reordering, extensions & other building works

Churchyards

Organs


Privy Council Business

At the Privy Council meeting on 4 April:

  • St Martin of Tours Churchyard, Eynsford In pursuance of the Order in Council made on 12th February 2020 the representations concerning the discontinuance of burials in St Martin of Tours Churchyard, Eynsford, Rochester, Kent had been published and were taken into consideration by a Committee of the Privy Council. Accordingly, Her Majesty, in exercise of the powers conferred on Her by section 1 of the Burial Act 1853, was pleased, by and with the advice of Her Privy Council, to order that burials shall be discontinued forthwith.
  • St Mary and Holy Rood, Donington: Her Majesty was pleased to order that notwithstanding the discontinuance of burials in St Mary and Holy Rood Church and Churchyard, Donington, Lincolnshire, the exception to be added in that the body of Captain Matthew Flinders be interred under the North Isle of St Mary and Holy Rood Church.

CDM Decisions


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. The most recent determinations were reported in our earlier round-up. The next meeting of the CFCE is on 21 May 2020.

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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 – April (II)" in Law & Religion UK, 30 April 2020, https://lawandreligionuk.com/2020/04/30/ecclesiastical-court-judgments-april-ii/

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