Ecclesiastical Court Judgments – April (III)

Review of the ecclesiastical court judgments during April 2021 (3 of 3)

Seventeen consistory court judgments were circulated in April. The first part of this round-up featured seven which relate to Reordering, extensions and other building works. The second part reviews the six judgments which concern Exhumation, and this third Part looks at Churchyards and burialsCDM Decisions and SafeguardingReports from the Independent ReviewerPrivy Council Business,  and CFCE Determinations, as well as links to other posts


Churchyards and burials

Designation of closed churchyard

[See also Privy Council Business]

St. Mary of the Purification Blidworth [2021] ECC S&N 2 In 2000 a churchyard closing order had been made by Order in Council. Notwithstanding the Order, burials of coffins and cremated remains had continued until 2019. There was a further Order in 2019 modifying the original Order. As a consequence of the two Orders, no further burials were allowed except (i) in an unused grave reserved by faculty; (ii) in an existing vault or walled grave; or (iii) in the existing grave of a family member. The Chancellor noted:

“Blidworth churchyard appears, I am sorry to say, to have been managed for many years with scant regard to the law” [4].

“There can be no doubt that the responsibility for this sorry state of affairs lies fairly and squarely with each of the incumbents of Blidworth between 2000 and 2018” [5].

These were treated as test cases to enable the whole situation to be settled, which requires review of the position as6]a whole, including deciding the effect of the 2000 Closure Order [6]. The judgment contains a detailed consideration of the rights of burial and also as to whether both the original churchyard and the large churchyard extension had both been closed by the closing order, or just the extension: Churchyards and the right of burial, [9] to [14]; closed churchyards, [15] to [18]  with particular reference to Re St Oswald Filey [2019) ECC Yor 8; burial of cremated remains in general, [19] to [28]; burial of cremated remains in closed churchyards, [29] to [33]; the effect of provisos to the Closure Order or of partial closure, [34] to [38]. The law was then summarized [39] as “…in all cases where the deceased does not have a gravespace reserved by faculty is, then, as follows:

1. In a churchyard that is open, the burial may take place, without a faculty, of the body or ashes of any person who had a right of burial there.
2. In a churchyard that is open, the burial may take place, without a faculty, of the body or ashes of a person who did not have the right of burial there, but only if the minister, as defined in s 88(7) of the 2018 Measure, consents.
3. In a churchyard that has been closed under the 1853 Act, in the circumstances covered by an exception or proviso to the Closure Order, the law as to both burials and cremations is the same as if the churchyard had not been closed; and the same applies to any part of the churchyard not affected by the Closure Order
4. In a churchyard that has been closed under the 1853 Act, no body may be buried except where 3 above applies.
5. In a churchyard that has been closed under the 1853 Act, unless 3 above applies, the ashes of a person who had the right of burial there may be buried only if a faculty is obtained, either specifically for the burial or generally for burial of ashes in an area set aside for the purpose.
6. In a churchyard that has been closed under the 1853 Act, unless 3 above applies, the ashes of a person who did not have the right of burial there may be buried only (a) if a faculty is obtained either specifically for the burial or generally for burial of ashes in an area set aside for the purpose, and (b) if in addition the minister consents.

“Reservation of a gravespace by faculty gives the right of burial in that space for those named in the faculty; but if the gravespace is in a churchyard or part of a churchyard that has been closed, burial of a body or of cremated remains may take place in the gravespace only if the terms of the Closure Order permit the burial of the body there; if they do, the burial of a body must be in accordance with the terms of the Closure Order as to depth”. [40]

The Chancellor then considered: the Blidworth Closure Order and its modification, [41], [42]; the ambit of the Closure Order, [43] to [46]; how much of the churchyard is closed, and with what exceptions, [47] to [53]. In particular, he noted:

“there is no basis on which [the view taken by the parish] could properly have been taken by anybody there without the study of the correspondence and the reference to the Ministry of Justice. To all appearances the whole of the churchyard was closed for burials after the 2000 Order. That is the position that must have been apparent to anybody, ordained or lay, asked to allow or to undertake any burial in the churchyard as a whole”. [51].

With regard to the provisos in the Orders In Council, there are now three provisos, but between 11 October 2000 and 12 June 2019 there was only one which permitted a single body to be buried in a space that had been reserved by faculty before the closure [54]. The addition of further provisos does not have retrospective effect, but after 12 June 2019 proviso (c) allows the addition of the body of a family member in any grave, as long as the burial will be deep enough to meet the requirements set out. Clearly the regime after that date is much more relaxed. [55]. Burials within the terms of the provisos, whether of bodies or of cremated remains (which have no coffin and are not governed by the spatial provisions of the provisos) do not require a faculty. [56]

Referring to the four faculty applications before him for the interment of ashes in existing graves of relatives in the churchyard extension, the Chancellor was satisfied that they were  covered by the closing order (as amended). All four petitions for the interment of ashes in existing graves of relatives were refused “because it is not for the Court to purport to authorise an act which can lawfully take place without the court’s authority” [67]. So after the 17-page judgment sorting out the mess created by previous incumbents, the four petitions for interment were refused, and these interments may now proceed, as prayed in the petitions. However, it is for the present incumbent as part of the general management of the churchyard to decide whether there is sufficient room in the plots in question, which in the case of three the petitions “there clearly is”, and for the other, “there may well be room for a burial of cremated remains” [66].

. [St. Mary of the Purification Blidworth [2021] ECC S&N 2] [Top of section] [Top of post].

Churchyard Regulations

Re St. Michael & All Angels Bugbrooke [2021] ECC Pet 1 The husband and wife petitioners sought permission to include on a memorial to the wife’s father the words ‘Dad’ and ‘Pap’, and indicated that in due course they would seek to add the words “Mum” and “Nan”. The incumbent and the PCC were asked for their views but declined to take a position, stating that they would prefer the decision not to be made at parish level [1] and [2]. On an unaccompanied visit, the Chancellor noted:

“[5]. …There has been good compliance with the churchyard regulations in recent times, except for occasional lapses, mostly but not exclusively, 30 to 40 years ago… The area in which [the deceased] is buried shows a high degree of compliance with the regulations. In particular in the immediate area of his grave all the memorial stones comply with the regulations. There are a very few examples of where the words “Pap or Pappy” have been used again some years ago, situated at some distance from the proposed memorial

The Chancellor refused permission as he considered that informal terms of address were not generally suitable for use as a public record on a memorial [18]. Whilst there were three examples of similar words being used in other parts of the churchyard (none near the grave in question), the Chancellor took the view that so few breaches of the churchyards regulations did not justify allowing further breaches. [Re St. Michael & All Angels Bugbrooke [2021] ECC Pet 1] [Top of section] [Top]

[Note: a revised judgment has been issued and the above link was changed on 5 August 2021.]

Re St. Andrew Haughton-le-Skerne [2021] ECC Dur 3 A horizontal memorial ledger was introduced without permission into an area of the churchyard set aside for cremated remains. Fixed to the ledger was an enamelled photograph of the deceased, a former soldier, whose ashes were interred in the grave [1]. By a faculty dated 15th October 2019, the Chancellor gave permission to install a memorial in accordance with a design which fell outside the conditions of the 2010 faculty, but which was consistent with his first judgment in this matter, Re St. Andrew Haughton-le-Skerne [2018] ECC Dur 2. In October 2019 a memorial without a horizontal ledger was duly installed in compliance with the 2019 faculty; however, a year later, in October 2020, a horizontal memorial ledger was unlawfully added [2].

Several unsuccessful attempts were made to contact the mother of the deceased, [2] to [4], but in a letter of 1 March 2021 she wrote to the diocesan registry applying to set aside the order for the removal of the horizontal ledger [5]. For pastoral reasons the PCC had tolerated moveable items being placed by memorials in this area of the churchyard, and had shown, in particular, a compassionate flexibility towards Mrs Martin and the memorial to her son with regard to moveable items that she has placed there, including the enamelled photo of her son which previously had been placed loosely at the site. Now the photo is bonded to the unlawful horizontal ledger, and is permanent. Other families have asked the incumbent for permission to fix photographic images to memorials and have correctly been told they cannot do so without applying for a faculty [7].

Citing Re The Churchyard of Quarrington Hill [2018] ECC Dur 2, the Chancellor observed that when breaches of the rules are allowed to occur, there is a risk that others may follow suit with an incremental detrimental effect on the whole character of the churchyard. He therefore rejected the application to set aside his order of 13 January 2021. [Re St. Andrew Haughton-le-Skerne [2021] ECC Dur 3] [Top of section] [Top of post]

Reservation of grave space

Re St. Clement Terrington St. Clement [2020] ECC Ely 3  In October 2020, the Chancellor received applications to reserve four graves places and a reservation for the burial of ashes. He granted the application for the reservation for the burial of ashes but postponed consideration of the other applications to allow the petitioners the opportunity to apply for a full hearing before the court or to make further written representations. He provided a Note dated 1 November 2020 which set out the principles which he was required to adopt in accordance with the statutory framework and assisted by the decisions of the Consistory Courts in other Dioceses who have had to consider similar issues [1].

He noted it has been confirmed that the PCC had considered re-use of graves to alleviate the problem which they face; he was informed by the incumbent that the PCC had rejected re-use and “their grounds for doing so are sound”. Consequently that that option was not available in the instant case [2]. The incumbent also stated that the churchyard is scheduled for closure from 1st April 2021 – a decision which the Chancellor considered to be premature. He commented:

“[6]. That approach, in my judgment, runs the risk of ignoring the statutory requirement to provide the space for parishioners and instead is filling the available spaces via the faculty jurisdiction. There are many examples where such spaces are never used, for example, where someone moves to a different area of the country and decides to be buried there, or they want to be buried with their husband or children, or because of a decision to be cremated or simply because they fail to leave instructions identifying that they have reserved a space.

[7]. There is a moral issue in respect of reservation which has been bought to my attention, that the faculty system advantages those who can afford to pay the fee for a faculty over those who may not be able to do so but nevertheless have a right to burial.

[8]. In my judgment it would be appropriate to postpone the application for closure until the churchyard is full. Section 88 of the [Ecclesiastical Jurisdiction and Care of Churches Measure 2018] cannot require burials to take place where there is no room even if the PCC is still awaiting an Order in Council to close the churchyard. By this route it will ensure, especially in circumstances where it is so difficult to predict how many spaces will be needed in any year, that all available spaces are used, and that they are used by those who have the right to be buried in the churchyard without applying for a faculty.

After reviewing the approach of other Chancellors to applications for the reservation of graves [18] to [25], he determined to grant reservations in two of the present applications; the applicants were in their 60s and 70s; they were longstanding residents; and they had strong connections with the church [26] and [27]. However  he refused the other two where the applicants were in their 30s and 40s, did not live in the parish and had little connection with the church [28] to [31], and [32], [33] . The Chancellor did not consider that having a relative buried in the churchyard was of itself a sufficient reason to grant a faculty to reserve a grave.

He concluded by inviting the PCC to consider postponing any application to close the churchyard until such time that all available spaces have been used up by those who pursuant to s.88 have a right to burial there [35]. [Re St. Clement Terrington St. Clement [2020] ECC Ely 3] [Top of section][Top of post]


Privy Council Business

At the Privy Council Meeting on 28 April 2021, 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 listed, burials should be discontinued in:-

1) St Giles Churchyard, Winchester, Hampshire;
2) St Michael and All Angels Churchyard Extension, Croft, Leicester;
3) Churchyard of Terrington St Clement, King’s Lynn, Norfolk;
4) St Mary’s Churchyard, Eastwood, Nottingham, Nottinghamshire.

for which plans were attached to the Order. These representations will be taken into consideration by a Committee of the Privy Council on 9th June 2021. Details are to be published in the London Gazette, and copies fixed on the doors of the Churches or Chapels of the above mentioned places, or displayed conspicuously inside them, for one month before 9th June 2021.

In pursuance of the Order in Council made on 10th February 2021,  representations had been published and taken into consideration by a Committee of the Privy Council. Subject to the listed exception, burials should be discontinued forthwith in St Mary The Virgin Churchyard, Sellindge, Kent, as shown on the plan attached to the Order.

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CDM Decisions and Safeguarding

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Reports from the Independent Reviewer

Individual Reports from the Independent Reviewer are to be found at House of Bishops’ Declaration on the Ministry of Bishops and Priests (Independent Reviewer), scroll down. There were no new reports in April.

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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. This also includes the applications that the commission examined, most recently on 25 March 2021 when applications were approved, subject to conditions:

  • Cathedral Church of the Holy and Undivided Trinity of Bristol: High level access improvements.
  • Cathedral Church of St Michael, Coventry: Loan of items to Leamington Spa Art Gallery and Museum for an exhibition as follows: Gerald Benney, Chalice with bark design; Geoffrey Clarke, Candlesticks (x2).
  • Cathedral Church of St Peter in Exeter: The loan of up to three folios of MS 3500 (Exon Domesday) to the Reiss-Engelhorn Museum in Mannheim, Germany.
  • Cathedral Church of St Peter and the Holy and Undivided Trinity, Gloucester: Various activities to conserve the North Transept West Window (South).

The next meeting of the CFCE is on Thursday 27 May 2021.

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Links to other posts

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

General/Miscellaneous

CDM

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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 (III)" in Law & Religion UK, 4 May 2021, https://lawandreligionuk.com/2021/05/04/ecclesiastical-court-judgments-april-iii/

 

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