The recent judgment Re St Edmund Kessingland  ECC Nor 4 exposed the “considerable and mutual antipathy between the Petitioners and those supporting them and the Parties Opponent and those who agree with them” . In his conclusion, Chancellor Etherington observed: “[c]ourts rarely manage completely to solve problems in people’s lives despite our increasing tendency in this age to turn to them to do just that. Courts decide what the law is and, in contested cases, make decisions in favour of one side or the other…”.
It remains to be seen how the parties respond. Nevertheless, there is plenty for ecclesiastical lawyers in this long (35 page) judgment, which re-examines Re St Mary the Virgin Burghfield  Oxford Const. Ct, Bursell Ch and other authorities, and develops an approach to this sensitive issue. This earlier case was considered along with other judgments in our post Churchyard Regulations – the practicalities of enforcement.
The Ecclesiastical Law Association summarized the case as follows:
“The petitioners, the rector and churchwardens, removed from the churchyard personal mementoes which had been placed on graves, and which the churchyards regulations did not allow. They then gave notice of removal, where possible advising the families concerned as to where they could collect the relevant items. The petitioners subsequently applied for a faculty for the disposal of the items not collected.
There were two objectors, who became parties opponent, around 40 other written objections, and there was an online petition opposing the faculty. The Chancellor decided that the petitioners were entitled to remove the items, as required by the churchyards regulations, and that a faculty was needed for their disposal. The Chancellor therefore confirmed an earlier decision to grant a faculty, subject to there being no objections.”
Facts of the case
The facts of the case are summarized below; details of the Petitioners’ application, witness statements &c are given in paragraphs  to  and material submitted by the Party Opponent and Objectors in paragraphs  to .
“The Petitioners sought permission by way of faculty to dispose of items that they have removed or caused to be removed from on or around graves and placed in another location within the churchyard pending collection by their owners, or by disposing of them. They say they gave notice long before so doing and have made contact, or attempted so to do, with the families of those who have had items removed or, where that was not possible, left notices on the memorials concerned following the removals. They say that they did so in reliance on the Churchyard Regulations for this diocese that were issued by Arlow, Ch. in 2016 [reproduced on pages 31 to 35 of the judgment]. .
The on-line petition has some 411 online signatories, some of which were either Objectors or Parties Opponent . The Chancellor noted “the documentation submitted under change.org was under the heading ‘Greetings, Stop the church from removing items from loved ones’ graves.’” However, this was not in the form prescribed in the Faculty Jurisdiction Rules, and except where the names were those of people already objecting or opposing, the Chancellor could not ascertain whether they were “interested persons”. Consequently, other than noting the fact that there was such a petition, he was unable to take it into account unless the signatory also submitted a letter of objection as some did .
Chancellor Etherington described the ecclesiastical law relevant to a churchyard,  to , the provisions under Canon F13.2 , the Faculty Jurisdiction [67, 68] and the relevant case law,  to . In his analysis of Burghfield, the underlying case law and the Diocesan Churchyard Regulations, he stated that in most respects, he agreed with what Chancellor Bursell said in Burghfield, “if “removal” is read as “removal from the church/churchyard or disposal” then [he agreed] with him entirely .
However, he noted that his had implications with regard to churchyard management, in relation to loose items such as toys, letters, candles and ornaments, and whether the PCC requires a faculty for their removal, whereas those responsible for their placement do not . He considered in detail Ritchings and Cordingley LR 3AE 113 (“Ritchings”)  and Vincent & Thomlinson v. Eyton [1897 P1 12] (“Eyton”)  as well as Durst v. Masters No 2 1 PD 373  and particularly at 383 (“Durst”) together with Newsom and Newsom Faculty Jurisdiction of the Church of England [2nd and Revised Edition, June 1, 1993] (“Newsom”) particularly at pages 192-3. he also read the other authorities considered in Burghfield in respect of other matters associated with the issues in this petition. From these authorities Chancellor Etherington made the following observations:
- [whilst] the principle that the churchyard of the church is subject to the faculty jurisdiction as much as the church building(s) itself is clearly established by authority…the status of items that might be placed in it needs to be considered carefully…It is obviously the case that no memorial, even where it had required a faculty which had either not been applied for or which had been refused, should ever be removed without a faculty from this court. .
- I would extend that absolute requirement to anything permanently fixed on to the memorial stone or part of any such item. Any kind of stone, kerb or fencing around the memorial stone should also only be removed if and when a faculty has been granted .
- …I am not persuaded that either the rule established in Ritchings and other similar authorities, nor the commentary in Newsom, lays down any rule that other items placed on or around the grave require a faculty before they can be removed, although they do require a faculty before they are disposed of. .
- … the distinction is this: these kind of items, entirely understandable and well-meant, are usually placed on or by gravestones as a solace for the person or people placing them… .
- These items have not been provided for the churchyard or given into the care of the church. They are not dedicated to God. They are mementoes, which doubtless have great meaning to the person leaving them on a grave and perhaps once had such meaning for the deceased or are of items of a type associated with him or her. They are personal… .
The Chancellor concluded:
“In my judgment, the justification for the requirement of a faculty to move or remove items dedicated to God and brought into the church itself as well as permanent items (such as memorials) does not apply to prohibited items brought into the churchyard without permission and placed on or by memorials by family, friends or visitors. However, the disposal of such items does require a faculty except those that plainly fall into the character of minor items, which simple rubbish generally would…” .
Nevertheless, he noted that care needed to be taken in designating items as ‘minor’, a term used in the Oxford Regulations, as the word could be interpreted in a number of ways. Things that are clearly litter can in the Chancellor’s judgment be both removed and disposed of without faculty provided that, looked at reasonably, they can have no particular significance to anyone or were obviously not deliberately placed in the churchyard to be kept within it or were plainly being disposed of by a person who had abandoned possession of them.
- Thus, any proposed removal of a monument or anything attached to it in whole or in part or forming part of the memorial requires a faculty to remove it from where it is placed. This category includes items that are expressly prohibited, namely kerbs, railings, fencing or chippings. .
- Any loose item placed on or next to a memorial, tomb, or grave which is not permitted under the Churchyard Regulations 2016 or which is expressly prohibited under those regulations can be removed as a matter of law by the incumbent and churchwardens without a faculty from where it has been placed prior to giving notice under the regulations.
However, a faculty is required to dispose of it or remove it from the churchyard altogether. That will require separate Public Notice. The Churchyard Regulations for this diocese impose a positive duty on the incumbent and churchwardens, in respect of items classed as mementoes as set out in Part III (Management) Paragraph 14.6. .
- These loose items which are either not permitted or expressly prohibited differ from memorials and their attachments in one or more of the following ways…they are not dedicated to God in the way that an item placed in a church may be…they are not permanent by their very nature whatever the intentions of the person placing them on or by the memorial…the issue of error is unlikely to arise since the Churchyard Regulations make explicit what is not allowed and in the event that a faculty had been granted that fact could be established easily and before disposal…the protection of items from sudden liturgical changes is not relevant in this context…the item(s) cannot be disposed of without a faculty, so that even if a mistake had been made, it could be rectified simply… .
- The Churchyard Regulations make clear that items in this category that were unlawfully introduced must be removed. That, by itself, does not logically conflict with the possibility of a need to obtain a faculty in order to carry out the duty, although that fact is not mentioned in the regulations. However, the second part of this regulation requiring that a member of the family should be notified of such removal (not the proposal to remove) clearly envisages notification after the items have been removed to a place from which they may be collected. This is inconsistent with a requirement that a faculty has to be obtained before the removal takes place and, as said, no such requirement is mentioned in the regulations… .
- Items that are clearly litter or, for example, flowers or wreaths which have died or wilted may be removed and disposed of by the incumbent and churchwardens. No faculty or notice is required. .
- Items of potential value which appear in the churchyard, which may have been dropped or otherwise deposited may be removed by the incumbent and the churchwardens and put in a place of safety. A faculty is not required in my judgment either for their removal or disposal. However, the incumbent and owners may have responsibilities towards the owners at civil law and should take all reasonable steps to discover their identity and reunite them with the property. It may be necessary to seek the assistance of the police. .
- Therefore, in my judgment the Churchyard Regulations 2016 are consistent with the law as I have decided it is. .
The Parties Opponent argued that the Petitioners should have sought a faculty before removing any of the items and that such notice that was given was rendered useless because of the lockdown imposed by H. M. Government in response to the COVID-19 Corona Virus Pandemic which began on March 23, 2020. They also contend that previous incumbents permitted, either expressly or by inference, these and other such items to be placed on or around the graves and that the Rector is inconsistent and arbitrary in her approach: enforcing the rules in respect of this churchyard but not in others for which she is also responsible. With regard to the arguments raised by the Parties Opponent and Objectors, he stated:
- An incumbent may purport to permit the introduction of objects into the churchyard either in ignorance of the true legal position or in defiance of it. An incumbent may choose to turn a blind-eye to such items either because he or she has enough other things to worry about or because of pastoral sensitivities and a desire not to upset people where a tradition has grown up amongst some parishioners to bring mementoes to memorials. .
- Whilst I understand entirely why an incumbent might wish to turn a blind-eye to what is going on, in the end it is not a kindness. Sooner or later, it is likely that the regulations will be applied properly and the disappointment and upset to those affected is likely to be all the greater, as is the case here…It should be the case that everyone burying someone in a churchyard, including those whose burial or interment is of right because they live in the ecclesiastical parish or those who have reserved their graves, has their attention drawn clearly to the fact that they are subject to the Churchyard Regulations. Similarly, in a secular cemetery, those burying or interring remains are doubtless made aware of the regulations that apply there. .
- This petition concerns the churchyard of Kessingland, St Edmund. If and when the court receives faculty petitions in respect of any neighbouring parishes, they will be considered on their merits. It is not a defence to a breach of regulations or laws to say that the authorities concerned have not proceeded against other people also breaching the regulations. .
- I also understand that some people feel that the facts that the actual removal of items took place during the first lockdown was insensitive. However, the lockdown also provided an opportunity to carry out the clear-up during a time when the churchyard was not being used. This is not primarily a matter for the court and is a pastoral decision… .
Other issues of fact were also addressed  to , following which the Chancellor made absolute the faculty that he granted on June 18, 2020, subject then to opposition. In view of the fact that it has been contested and he had a number of objections to take into account, he ordered that the period of 12 months granted to dispose of the items shall not begin to run until January 1, 2021 to give people one final chance to collect items…. As far as the parties are concerned:
“Sensible people will not see a favourable decision as a green light to brandish their triumph over the vanquished loser. Nor should those who lost feel that a court failed to understand what they felt about something and why…Both sides have a choice in this sort of situation .
The first path is the feud. Feuds have their satisfying moments for both sides, prolonging feelings of justification and grievance. Each side has its mini-triumphs and small defeats, often over the pettiest details. No-one wins ultimately. Everyone loses  …The second path is resolution. It involves both sides facing things they could have done better, both sides being able to talk things through without losing their tempers or scoring cheap points, everyone being prepared to make some compromise and all understanding that far more is lost in a feud of this kind than is ever gained .
David Etherington has just been appointed as Chancellor of the Diocese of London in succession to Judge Nigel Seed, who retired at the end of 2020. David takes up the new role on 1 February 2021 when he will relinquish his post as Chancellor of St Eds & Ips while retaining his chancellorship of Norwich. Ironically, the above judgment relates to a churchyard in Suffolk – in that far north-eastern part of the county that is in the diocese of Norwich.
As an appendix to his judgment David issued’ Guidance on the Churchyard Regulations’, stating in para 128, “I shall give guidance below as to the procedures that must be followed in the hope that it will provide assistance both to the parties in this case, and the diocese as a whole.” It will be interesting to see whether he provides similar guidance for St Eds & Ips before leaving for London.