Review of the ecclesiastical court judgments during February 2021 (II)
Eleven consistory court judgments were circulated in February 2021, and the four featured in the first part of the round-up all relate to Reordering, extensions & other building works. This second part reviews the remaining seven judgments which concern Exhumation and Churchyards and burials. This summary also includes CDM Decisions and Safeguarding and a link to the new CDM Guidance on Penalties, Privy Council Business, and CFCE Determinations, as well as links to other posts relating to ecclesiastical law.
Re Gaydon Parish Cemetery [2021] ECC Cov 2 The Chairman of Gaydon Parish Council sought permission to permit the exhumation of a body interred in 2020 and reinter it in another part of the cemetery. A month after the burial, it was discovered that the grave which had been used had been reserved in 2016 for a lady who wished to be buried in the grave next to the one in which her husband had been interred [2,3]. The Parish Council obtained consent for the disinterment from the family of the deceased and from the Incumbent of the Parish within which the Cemetery is located [5]. The Chancellor noted that one of the “exceptional circumstances” listed in Re Blagdon Cemetery [2002] Fam 299, under which exhumation might be permitted was “a mistake in the administration of the burial so that an important error in location is made”.
“[9]. That last consideration is, of course, at the crux of the matter here. There has been an wholly regrettable failure by those charged with administering the Gaydon Parish Cemetery leading to this almost inevitable application, supported quite generously by the family of the deceased.
[10]. I am quite satisfied that this is a situation where the presumption of the permanence of the burial may be displaced by the circumstances of what has
occurred. There has been a ‘mistake’ in that the interment of [the deceased] was within a grave space that should not have been used.”
Faculty granted. [Re Gaydon Parish Cemetery [2021] ECC Cov 2] [Top of section]
Re Oaston Road Cemetery [2021] ECC Cov 1 The petitioner, Ms Farmer, sought to exhume the cremated remains of her father, so that his ashes might be scattered with the cremated remains of her mother in Majorca, a place that was very special to the petitioner’s parents, a wish that the petitioner’s mother had expressed as ‘her dearest wish’ before her death [4]. Although an officer of the Borough Council responsible for the cemetery has expressed support for the exhumation, no such support was given by the relevant incumbent [5]. Also, the petition did not follow the customary practice, and was not accompanied by a report from the funeral director, who will be engaged to oversee any permitted disinterment, setting out how the exhumation would be accomplished so as to preserve the dignity of the remains, especially as the original casket were likely to have become brittle or worse after being buried for nearly three decades [6].
Following the guidance given by the Court of the Arches in Re Blagdon Cemetery [2002] Fam 299, and the Chancery Court of York in Re Christ Church, Alsager [1999] Fam 142, [7] to [9], the Acting Chancellor could find no exceptional circumstance to justify the grant of a faculty for exhumation. He noted “one of the issues that has not been addressed is why, apart from comments reported to have been made by Nancy Winifred, Ms Farmer feels that it would be preferable for her Parents’ ashes to be scattered, rather than her Mother’s remains be interred in what has now become a Family Grave, where her ashes would join the remains of both her husband and her Son (the Petitioner’s Brother) [12].
The acting Chancellor concluded:
“[13]. There was no mistake or misunderstanding in 1992 that Duncan Edward Jewkes’ remains were being interred in consecrated ground. A deliberate decision was made almost twenty-nine years ago to bury his remains in the cemetery at Oaston Road…Now, however, Ms Farmer feels she should seek to abide by comments made by her Mother concerning scattering of ashes in place of the Christian burial that initially took place. It is, to all intents, a matter where there has been a subsequent change of mind as expressed in the Alsager judgment.
I have sympathy for Debra Farmer, who have acted with the best of intentions, but unfortunately the reasons given do not amount to the exceptional circumstances that would be required to justify exhumation. For that reason the petition must be refused.”
[Re Oaston Road Cemetery [2021] ECC Cov 1] [Top of section] [Top].
Re St. Adamnan’s Lonan [2021] EC Sodor 1 The petitioners sought permission for the installation of new interpretive signage in connection with the ancient crosses stored in the building known as the “Cross House” or “Cross Shed” in the grounds of the 14th century church of St Adamnan1 Lonan, otherwise known as Old Kirk Lonan [1]. The Cross House contains a number of Celtic crosses, one of which is believed to be in its original position. The petition relates to ways in which information about those crosses may be imparted to visitors [3].
The petition seeks a faculty authorising the installation in the Cross House of 4 signs and 7 labels associated with various crosses in the house. The largest of the signs is a title board bearing the words “Old Lonan Crosses”. It is to be accompanied by an A3 general information board inside the house, an A4 size sign with a photograph of the wheel-head cross in the churchyard and eight smaller signs. The total cost of the works is £300, and is to be undertaken by Manx National Heritage [4]. The letter of objection did not related to the works being undertaken, but to the way in which they are funded [5].
With regard to the Court of Arches judgment Re St. Alkmund, Duffield [2013] Fam 158, the Deputy Chancellor noted:
“[8]. The reference to particularly categories of listing which apply in England have no relevance in a Manx context. Nevertheless, there are some of the Island’s churches which, were they in England, would fall into those categories.
[9]. Old Kirk Lonan is definitely a church which, were it in England, would be listed and probably be in Grade 2*. However, I am not required to carry out the detailed analysis required by the decision in Duffield because I am satisfied that the proposed works do not involve any harm at all to the significance of the listed building.
[10]. Accordingly, a faculty will pass the seal for the undertaking of the works, which I am satisfied will improve public understanding of these important Crosses and their significance in the history of the Isle of Man.”
[Re St. Adamnan’s Lonan [2021] EC Sodor 1] [Top of section] [Top of post]
Designation of closed churchyard
Re St. Margaret Rottingdean [2021] ECC Chi 1 In 2020, the Chancellor gave a judgment (Re St Margaret’s Rottingdean [2020] ECC Chi 4) concerning the temporary removal of two memorials from the churchyard. There had been complaints that the inscription on each memorial contained the same allegedly offensive or derogatory word. In the present case, the vicar and churchwardens applied for a faculty to authorize the re-cutting of the stones, so as to omit the offensive word from the inscriptions, and the return of the stones to the churchyard. The families of those commemorated by the stones supported the application. The Chancellor granted a faculty. [In the matter of St Margaret, Rottingdean (No. 2)] [Post] [Top of section] [Top of post]
Re Holy Cross Woodchurch [2020] ECC Chr 2 The petitioners sought permission to install in the churchyard a memorial which was outwith the churchyards regulations. It is described in the judgment as “of lawn design, with kerbstones, to be in black granite and with the addition, within the kerbs, of a Sadshalil Grey ‘pathway to heaven’ – a curved, raised area running the length of the grave from its foot to the headstone itself” [3]. The memorial does not comply with the current diocesan Churchyard Regulations (published in 2007), although the proposed inscription is uncontroversial. The height of the headstone is compliant, though its width is some 6 inches greater than that permitted by regulation [4]. Although the Petition was not as such formally opposed by parties opponent, there were written objections from the Rector, two churchwardens, four members of the Parochial Church Council and a former Churchwarden who is now member of the clergy with the Bishop’s Permission To Officiate [5].
With regard to the competing contentions: “[t]he petitioners, perfectly reasonably and honourably, wish to place the proposed memorial as ‘the last nice thing that we can do as a family for Maureen’. They point to the existing grandparental grave which I have mentioned, the proximity of the Dallinger grave to their intended location and the presence of a good many other memorials with kerbs – dating back decades – within the churchyard” [39]. The parish objections, “while recognising the reality of past breaches, focus on the need for much needed discipline for the future. They urge the upholding of the regulations. They fear further requests will inevitably follow for non-compliant memorials. They have spoken of (familiar) maintenance and grass cutting challenges and problems related to memorial stability on unstable ground” [41].
The Chancellor observed:
“[42]/ The Revd Peter Mills, in his objection and plea for ‘good order and safety’, brings considerable historical perspective (over 55 years’ involvement in all) to the affairs of the churchyard.
[43]. He writes: ‘The mishmash of unauthorised kerbstones, chippings and the like, which are clearly apparent in the photographs attached to the petitioners’ application, do nothing to help. None was approved or submitted for approval by me. To my knowledge, none has been approved by anyone else since 2001 when my involvement started. I cannot speak about what happened before that date’”.
Chancellor Turner noted that “[he had] not been assisted by any precise statistical appraisal of numbers of kerbed graves as part of an overall total. The photographs [he] studied do not appear to support the prevalence the petitioners suggest. [He was not] persuaded refusal here would be in any way ‘unconscionable’” [44].
He concluded:
“[64]. I consider the parish here is acting entirely reasonably in seeking to draw a line.
[65]. I do not for a moment consider this is the product of any unfairness, let alone hostile animus or bias, directed to the petitioners personally from the Rector or any members of the PCC, indeed I reject that suggestion completely.
[66]. It follows that my decision is to dismiss the petition for the kerbed memorial requested.”
[Re Holy Cross Woodchurch [2020] ECC Chr 2] [Top of section] [Top of post]
Re St. Sebastian Wokingham [2021] ECC Oxf 1 The Hon. Secretary of the Huddersfield & District Army Veterans Association petitioned for permission for the removal of the memorial cross of the Association’s founder, from the churchyard of St Sebastian, Wokingham, to the Association’s military plot at Edgerton Cemetery, Huddersfield [1]. Major Welsh was buried in St Sebastian’s churchyard on 7 October 1907, although the plot in which he is buried was later paved over for the laying of a path. The Monument, which records his details, was therefore leant against the wall of the church nearby [2]. The PCC had no objections to the removal of the Monument, and Kirklees Council has given permission to the Association to re-erect the Monument on one of the graves which it owns at Edgerton Cemetery. [3]. However, “[t]hat is slightly different from the Petitioner’s stated intention of erecting the Monument on ‘empty ground adjacent to the burial plot facing the grave stones’”[4].
At the time of making the petition, the Association was unable to find any living relatives of Major Welsh [6]; likewise, the Petitioner’s advertisement in a Wokingham local newspaper yielded no response. The Deputy Chancellor subsequently suggested that he might wish to seek the services of a genealogist; and the genealogist so instructed was able to trace two granddaughters of the half-brother of Major Welsh’s widow. The Deputy Chancellor was satisfied on the balance of probabilities a) that the first heir-at-law of Major Welsh was his widow, Eliza Holroyd; and b) that her joint heirs-at-law are Maud Sykes and the heir or heirs of Brenda Sykes (Brenda Sykes by that time having died). He ordered that the Petitioner was to make all reasonable efforts to contact the heirs within 21 days, and to lodge any response [8].
Under cover of a letter dated 12th January 2021, the Petitioner lodged two letters: one from Rebecca Dew, daughter of Maud Sykes, and one dated 3from Jacqueline Paul, daughter of Brenda Sykes, both letters giving their permission for the removal of the Monument to Huddersfield; the Petitioner expressed the belief that these were the ‘last two heirs to Robert and Elizabeth Welsh [9].
St Sebastian’s, Wokingham is not a listed building, and therefore the heavy presumption against change which would then apply is not engaged. However, in order to grant the requested faculty the Deputy Chancellor still must be satisfied on the civil standard of proof that the balance of evidence favours granting the requested faculty rather than its refusal, the burden of proof resting on the Petitioner [11]. He concluded:
“[21]. Taking all of these factors into account, despite having given particular weight to the views of Major Welsh’s heirs-at-law, as well as those of the PCC and the DAC, I am not convinced either that the removal of the Monument is necessary to celebrate the memory of Major Welsh at the Huddersfield plot, or that the benefits in doing so would outweigh the harm in removing it from St Sebastian’s churchyard.
[28]. The Petitioner has not therefore discharged the burden of proof, and the petition is dismissed.”
[Re St. Sebastian Wokingham [2021] ECC Oxf 1] [Top of section] [Top of post]
Re St. Mary the Virgin Podington [2021] ECC StA 1 The petitioners applied for a confirmatory faculty in respect of a memorial they caused to be erected over a grave without permission [1]. “This matter has endured a difficult pastoral route… The memorial [was] erected without permission and [was] not compliant with the Diocesan Churchyard Regulations in terms of material, inscription and, as far as can be determined, mode of installation. A particular sticking point relates to the inscription the memorial bears, which is contentious but also reflects matters of personal significance to the Petitioners…[2]”. The procedural history is summarized in paragraphs [3] to [7], and the background to the case in paragraphs [8] to [20].
The Chancellor stated that there were two related main issues in this matter: the basis for retrospectively permitting a memorial that has been introduced without authority and which, in its design, falls outside the scope of the Regulations; and the question of whether the inscription on the memorial is permissible [21]. After take into account the importance, effect and purpose of churchyards and memorials in them. Eyre Ch stated in Re St James, Newchapel [22], she described the purpose of the Regulations, and then addressed: the trespass, [26] to [28]; Faculties falling outside the scope of the Regulations, [29] to [34]; the inscription, [35] to [38].
“Taking stock of the various issues that are raised in this case, in [the Chancellor’s] view the fact of the trespass in installing the memorial and the permissibility of the inscription are the most serious matters. Deviation from the Regulations by the use of non-permitted stone and the colouring of inscription lettering are, by comparison, relatively less serious in this particular context [39]”.
In support of the petition were a number of newspaper commentaries on the recent ecclesiastical decisions dealing with the appropriateness of non-English language inscriptions on memorials [54]. However, the circumstances of the case are quite different from Exhall, and the wording of the inscription was but one aspect of the refusal for this confirmatory faculty. The Chancellor stated that she had carefully considered the question of proportionality and whether to adopt a less impactful route, for example leaving the stone in situ and simply excising some parts of the inscription, but concluded that this would not be an appropriate way forward in this case for a number of reasons [66].
The Chancellor refused to grant a confirmatory faculty and granted a faculty for its removal by the team Vicar and churchwardens on the grounds that: (1) the installation without authority was a trespass; (2) the type of stone and colour of lettering were not authorised by the churchyards regulations; (3) part of the inscription (which suggested that a particular cancer treatment was responsible for the death of the person commemorated) was inappropriate; (4) there were concerns for safety, as the memorial was not installed by a member of the National Association of Memorial Masons; and (5) “Allowing the memorial to remain fails to address the unfairness to others who correctly obtain appropriate authority and follow the Regulations”.
[Re St. Mary the Virgin Podington [2021] ECC StA 1] [Top of section] [Top of post].
Recent summaries of specific issues that have been considered in the consistory courts include:
Churchyards
- Burial Act 1853 (Notice): Order giving notice of the discontinuance of burials in St Mary The Virgin Churchyard, Sellindge, Kent.
- Burial Act 1853 (Final) Order prohibiting further burials in:—
[1]. All Saints Churchyard, Burstwick, Hull, East Riding of Yorkshire; [2]. St Andrew’s Churchyard, Northover, Ilchester, Somerset; [3]. St Mary Magdalene Churchyard, Cowden, Kent; [4]. St John the Baptist Churchyard, East Farndon, Northamptonshire; [5]. Tower Churchyard & Wrinehill Road Churchyard, Wybunbury, Nantwich, Cheshire.
CDM Decisions and Safeguarding
- Clergy Discipline Measure notices
Notices of findings and penalties given to clergy in the Diocese of Bath and Wells.
The Right Reverend Michael Hill received a penalty of a rebuke on 26 January 2021 for racial stereotyping, whether intentional or not, and an injunction requiring training in unconscious racial bias.
- Guidance on penalties In January 2021, the Church of England’s Clergy Discipline Commission issued an updated Guidance on Penalties. The introduction notes that the Commission “is not laying down prescribed penalties which must be imposed, but seeks to provide guidelines. Those who have a duty to determine an appropriate penalty should take into account this guidance before exercising their discretion.“
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 Thursday 28 January 2021 when the following applications were approved, subject to conditions:
- Cathedral Church of Christ, Canterbury. Loan of C12th Screen Fragments to the British Museum .
- Cathedral Church of Ripon. Relocation of the font from the south nave aisle to the Narthex, fitted into a new twostep stone plinth with bronze handrail and decorative polished marble finish, draining into new soakaway. Conservation and structural repairs undertaken to protect the font, remove harmful past repairs and enhance its legibility. New York stone pavers to the south nave aisle to replace the font plinth, in keeping with the surrounding York stone paving. Decorative marble design pending separate application.
The next meeting will be on Thursday 25 March 2021.
Notes on the conventions used for the navigation between cases reviewed in this post are summarized here.