Ecclesiastical court judgments – November 2020 (II)

Review of the ecclesiastical court judgments during November 2020 (II)

Eleven consistory court judgments were circulated in November, and the six featured in the first part of the round-up all relate to Reordering, extensions & other building works. This second part reviews the remaining five which concern Bells, Exhumation and Churchyards and burials. This summary also includes Privy Council Business, and CFCE Determinations, as well as links to other posts relating to ecclesiastical law.

Exhumation

Family graves 

Re St. Mark Winshill [2020] ECC Der 4 The petitioner sought a faculty to authorise the exhumation of the cremated remains of his father from the churchyard at St. Mark Winshill and their reinterment in the cremated remains section of a nearby cemetery. The reason given was that the deceased’s wife had died recently and she had wanted her cremated remains to be interred in the cemetery [1]. The petitioner wished to unite the cremated remains of his father with the cremated remains of his mother in the same grave. In the light of the guidance in Re Blagdon Cemetery [2002] Fam 299, the Deputy Chancellor determined that there were no exceptional reasons to justify the grant of a faculty for the exhumation of the deceased’s remains. [Re St. Mark Winshill [2020] ECC Der 4] [Top of section] [Top of post]

Re St. George Woolhope [2020] ECC Her 2 There were three petitions before the court: the first (in time) was a petition by a Mr Joe Smith ( dated 30 July 2018. which initially sought exhumation of the cremated remains of Amelia Smith (the Deceased) from a grave in the churchyard of St George’s, Woolhope, and their reinterment in Ledbury Cemetery in a plot now owned by Mr Smith. This petition was later amended on 17 July 2020 to seek a faculty that such of the cremated remains of the Deceased as were presently in the grave at St George’s and those that were in the plot in Ledbury Cemetery should remain in their respective places of interment, i.e. the status quo should be preserved [2].

The second and third petitions sought exhumation of such of the cremated remains of the Deceased as were in Ledbury Cemetery and their reinterment in St George’s, Woolhope, in the existing grave containing and together with the Deceased’s other remains. The difference between the second and third petitions was simply that one was presented in respect of Ledbury Cemetery (exhumation) and the other in respect of St George’s Woolhope (reinterment) [3]. Each side objected to the other’s petition. [4]

A further complicating factor was that unbeknown to Mrs Nobes and Mrs Bramley, only a portion of the Deceased’s ashes were thus interred. The remainder continued to be retained by Mr Smith without their knowledge who wanted his remains to be buried with those of the Deceased, but he did not wish to be buried in St George’s. In 2018 or 2019 he set about acquiring (and duly acquired) a plot in a consecrated portion of Ledbury Cemetery for his intended burial plot and those of the remaining remains of the Deceased. These remains were, in about March 2019 placed in a casket and, without ceremony (but with the assistance of undertakers and attended by Mr Smith and his son), interred in the newly acquired (or the then about to be acquired) plot [15].

The petitioner applied for permission to exhume the ashes in the churchyard and reinter them in the grave in the cemetery. The petitioner’s estranged daughters had been under the impression that all the ashes had been interred in the churchyard, in accordance with the deceased’s wishes. One of the daughters, on discovering what had happened, petitioned to have the deceased’s ashes exhumed from the cemetery and reinterred in the churchyard. The petitioner thereupon sought an amendment of his petition to preserve the status quo.

In determining what was to be done, the Chancellor noted that the governing principles are those set out in Re Christ Church, Alsager [1999] Fam 142 and Re Blagdon Cemetery [2002] Fam 299. The final position of the parties was that neither side was seeking exhumation of the remains in St George’s Churchyard. The only question is should the remains in Ledbury Cemetery be allowed to remain where they are? Mr Smith and his supporting family members say the status quo should be preserved, Mrs Nobes (and formerly Mrs Bramley) wish to exhume the remains from Ledbury and have them reinterred in St George’s [20]. The Chancellor, HH Roger Kaye QC, concluded:

“[22]. …having regard to the principle of permanence (above) in my judgment the status quo, however unsatisfactorily achieved, should, in the circumstances, be preserved and the remains of the Deceased should now rest where they lie. In the circumstances, although unusual to say the least, the sufficient degree of exceptionality is not made out in this case.

[23]. In the result it is not necessary to order any faculty on Mr Smith’s petition nor on Mrs Nobes’s two petitions.

 [Re St. George Woolhope [2020] ECC Her 2] [Top of section] [Top of Post]


Churchyards and burials

Churchyard Regulations

Re St. Mary Woodkirk [2020] ECC Lee 3 As we noted in a recent weekly round-up, the Worshipful Mark Hill’s carefully-worded judgment and general guidance to the Diocese of Leeds was handed down in the light of Re St Giles, Exhall [2020] ECC Cov 1, which “[sought] to declare propositions of general application, [which] are ones which [he] would prefer not to adopt for the reasons briefly given above”. The Court of Arches had recently granted permission to appeal in Re an Application for a Faculty for a Memorial in the Churchyard of St Giles, Exhall, Diocese of Coventry [2020] EACC 1, in which the petitioners applied to erect a headstone with an inscription in Irish and Eyre Ch directed that it should also include an English translation.  Chancellor Hill indicated that since the judgment of the Court of Arches will also be binding in the Northern Province in consequence of the new statutory deeming provision in s.14A Ecclesiastical Jurisdiction and Care of Churches Measure 2018, he will revisit this guidance when it has been delivered [8].

The Vicar of St Mary Woodkirk sought the Court’s directions pursuant to paragraph 17 of the Diocesan Churchyard Directions. The Chancellor issued a short judgment “because the presenting issue is whether part of the inscription on a proposed headstone should be in Chinese characters. In the light of some recent controversy regarding non-English inscriptions, it is desirable to provide some general guidance for the diocese as a whole” [1]. After reviewing the procedure for erecting headstones, [2] to [5], and the associated legislation, [6] to [11], he commented:

“[12]. The facts of this case are straightforward. The enquiry relates to the inclusion of the deceased’s name in Chinese characters as well as in English, and perhaps an additional phrase in Chinese. I can see no objection to either provided, in the case of the latter, that the phrase is consistent with (or at least not contrary to) Christian doctrine.

He concluded as follows, [13]:

  1. There is no general prohibition on the inclusion in inscriptions on headstones of words or phrases in a language other than English;
  2. There is no general requirement for an English translation to be additionally inscribed on headstones (whether in a smaller font or otherwise) whenever non-English words or phrases are permitted;
  3. To the contrary, in a linguistically diverse nation, liberty should be afforded to the bereaved to memorialise their loved ones in a language which reflects a range of features including their heritage, culture, nationality, race and ethnicity;
  4. However, clergy should be astute to refuse the inclusion of words or phrases which have the potential to offend Christian doctrine or teaching.”

Re St. Mary Woodkirk [2020] ECC Lee 3] [Top of section] [Top of post]

Re St. Peter & St. Paul Farningham [2019] ECC Roc 3 . The petitioner wished to erect a memorial in the churchyard  to her son, who had been murdered [2]. The memorial proposed comprised an upright stone five feet tall and bearing an open book motif. The stone was to be set on a foundation and plinth measuring seven feet by three feet by four inches [3]. The Chancellor did not propose to deal with the wording to be inscribed on the memorial, nor was asked to do so. That remains to be dealt with in the future [4]. Depending on the outcome of the trial, I thought it unlikely that the wording sought to be used on the memorial would be contentious, but stressed that the petitioner must apply at a later date for approval of the precise words.

He decided that in the circumstances of this particular case the upright memorial would be acceptable, but not the large plinth. He did not consider, on the peculiar and indeed unique facts of this case, that there was any serious risk of an undesirable precedent being created [20]. The Chancellor therefore granted a faculty for the upright stone only, including a condition that the petitioner should remove a covered bench which she had placed without permission near the grave [22]. [Re St. Peter & St. Paul Farningham [2019] ECC Roc 3] [Top of section] [Top of post]


Bells

Re St. Michael Michaelchurch Escley [2020] ECC Her 1 The case concerned the allocation of costs relating to the installation of a sixth bell, on which the Deputy Chancellor noted:

“[37]. It is impossible to accept the claim made at various stages by both the Vicar and the Churchwarden that acting in the absence of a Faculty was in some sense condonable as a mistake. The point at which the illegality occurred was not the planning of the augmentation, or the ordering of the bell, but its installation. By the time of that event, there was no room for mistake. The position had been made clear by me, by the DAC secretary, by the Registry and by the bellfounder.”

A faculty for the restoration of the church’s five bells cast in 1732 by Abraham Rudhall II  – including repairing the cracked tenor – and rehanging the small Sanctus bell had been granted in 2014. Subsequently, a person referred to in the judgment as “the Churchwarden” had arranged for an additional treble bell to be installed without the authority of a faculty, having advised the bellfounder that the sixth bell had been authorised. After the installation became known to the Registry, an application was made for a faculty to amend the 2014 faculty to provide for the extra bell.

Apart from the work having been done without faculty, the Deputy Chancellor found that a minute of the PCC produced by the Churchwarden and agreeing to the installation was ‘unreliable”. The Chancellor ordered the costs to be paid as to two-thirds by the Churchwarden and one-third by the Vicar and directed that neither should take any contribution from the PCC or from any church funds – although if individuals wished to contribute to their expenses, they were of course at liberty to do so. [Re St. Michael Michaelchurch Escley [2020] ECC Her 1] [Top of section] [Top of Post]


Links to other posts

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

General/Miscellaneous


Privy Council Business

At the meeting of the Privy Council on 11 November 2020, proclamations ere made appointing Thursday 2 June 2022 in place of Monday 30 May 2022 and Friday 3 June 2022 as bank holidays in England, Wales and Northern Ireland, and also Scotland

The Secretary of State for Justice, after giving ten days’ notice of his intention to do so, under the Burial Act 1853 as amended, made representations to Her Majesty in Council that, subject to the exceptions stated, burials should be discontinued in:-

1) St Mary Rawtenstall Churchyard, Rossendale, Lancashire (as shown hatched on the plan in the annex);
2) St Mary Magdalene Churchyard, Cowden, Kent (as shown hatched on the plan in the annex);
3) St Mary’s Parish Churchyard, Northolt, London (as shown hatched on the plan in the annex);
4) St Mary’s Churchyard, Horsefair Street, Charlton Kings, Cheltenham, Gloucestershire (as shown hatched on the plan in the annex);
5) St Philip’s Churchyard, Kelsall, Cheshire (as shown hatched on the plan in the annex).

Her Majesty in Council was pleased to give Notice of these representations and to order that they be taken into consideration by a Committee of the Privy Council on 23 December 2020. And Her Majesty was further pleased to direct that this Order should be published in the London Gazette, and that copies of it should be fixed on the doors of the Churches or Chapels of the above mentioned places, or displayed conspicuously inside them, for one month before 23 December 2020.


CFCE Determinations

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. The latest published determinations are for the meeting on Thursday 17 September 2020; these were summarized in the previous update, here. The most recent meeting was on Thursday 29 October 2020, and the next is scheduled for Wednesday 9 December 2020.

Specialists sought

The Cathedral and Church Buildings Division of the Church of England is seeking to hear from specialists in the history, care and conservation of religious buildings with the time and skills to serve on one of its voluntary expert committees. Expressions of interest are invited from specialists in the following areas: histories; the on-going use and development of historic buildings; care of collections; building performance and environmental sustainability. Applications to arrive by Monday 10 January 2021.

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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 – November 2020 (II)" in Law & Religion UK, 4 December 2020, https://lawandreligionuk.com/2020/12/04/ecclesiastical-court-judgments-november-2020-ii/

 

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