Ecclesiastical court judgments – October (II)

Review of ecclesiastical court judgments during October 2021 (2 of 3)

Twenty four consistory court judgments were circulated in October, and the ten featured in the first part of the round-up all relate to Reordering, extensions and other building works. This second part reviews judgments which concern Exhumation and Churchyards and burials and the third part will consider Organs, CDM Decisions and Safeguarding, Reports from the Independent Reviewer, and CFCE Determinations, Other reports, Visitations &c, as well as links to other posts relating to ecclesiastical law.


Exhumation

Problems of access

Re Tixhall Road Cemetery Stafford [2021] ECC Lic 3 The petitioner’s father had died in 2017; he was buried in the cemetery in Stafford, in one half of a double grave, so that the petitioner’s mother could be buried next to her husband in due course. The petitioner and her mother intended to remain in Stafford, but circumstances changed and they moved to Anglesey. The petitioner wished to move her father’s remains for reburial in Anglesey, where the petitioner’s mother could in due course be buried next to her husband. The Deputy Chancellor refused to grant a faculty. Following the guidance of the Court of Arches in Re Blagdon Cemetery [2002] Fam 299, the fact that the petitioner’s mother (aged 95) was infirm and could no longer manage the journey to Stafford was not capable of being an exceptional circumstance such as to justify exhumation. [Re Tixhall Road Cemetery Stafford [2021] ECC Lic 3] [Top of section] [Top of post]

Family graves 

Re St. Giles Ashtead [2021] ECC Gui 1 The petitioners’ father died in 1998 and his cremated remains were interred at the southern end of the churchyard, near the grave of his grandparents [1]; the petitioners’ mother, Mrs Cooper, died in 2020 and was buried at the northern end of the churchyard [2]. However, her family subsequently found that she had left a handwritten codicil to her will “to confirm that [she] wish to be buried in St. Giles’ churchyard when [she died] and not cremated. If possible, it would be good if [her late husband’s] ashes could be taken up and put with [her]” [3].

The petitioners were anxious to abide by their mother’s wishes and sought a permission to exhume their father’s ashes and reinter them with their mother’s grave in the north part of St Giles’ churchyard [4]; this was supported by the incumbent. The PCC was also sympathetic, giving its approval but requested that there should be “minimal disruption to the surrounding plots…”; from this, the Deputy Chancellor deduced that there was “plainly a risk of this exhumation disturbing other plots” [4].

The Deputy Chancellor cited paragraph 36 (iii) Re Blagdon Cemetery [2002] Fam 299, in which the Arches Court said “a change of mind as to the place of burial on the part of relatives or others responsible in the first place for the interment should not be treated as an acceptable ground for authorising exhumation.” It was not clear whether over the years since 1998 Mrs Cooper changed her mind about being cremated (and thus interred with her husband and near other family members) or whether it was always her wish to be buried (and therefore laid to rest in a burial plot in another part of the churchyard) [9].

He noted that whilst it is plainly desirable for family members to be buried together where possible, there can be a difference between an exhumation in order to transfer remains to an established family grave and a petition for transfer to the grave of a single family member, as in this case, Re St. Laurence Alvechurch [2016] ECC Wor 3; exhumation was refused in Re Dawley Holy Trinity [2013] Lichfield Const Ct, Eyre Ch. for remains to be moved from a family grave to another part of the same churchyard to be buried in a double plot also intended for a spouse [11]. The Deputy Chancellor observed that in the instant case, Mr Cooper was laid to rest near his grandparents and there is now a wish for him to be laid to rest near to his late wife; he would be resting close to family members in either case [12]. He concluded:

“[13]. I do not think that there are the exceptional circumstances required in this case. In 1998 Mr Cooper could have been cremated and interred in a burial plot which could have been also reserved for his widow. I think the choice not to do that in 1998 must be given some respect and any later change of mind does not give me grounds for exhumation. Mr Cooper is already buried close to family members and so the family grave consideration does not give rise to exceptional circumstances.

Mrs Cooper’s codicil plainly recognised the difficulty involved in moving his remains and appears to understand and respect the permanence of Christian burial. I am also concerned by the PCC’s comment about the need for ‘minimal disturbance’ of adjoining remains. The risk that the remains of other people could be disturbed to any extent by this process is one that I must  also take into account and that weighs against the granting of this faculty”.

[Re St. Giles Ashtead [2021] ECC Gui 1] [Top of section] [Top of post]

Re St. George New Mills [2021] ECC Der 2 The petitioner sought a faculty to authorize the exhumation of the cremated remains of his father, who died in 1986, from New Mills churchyard and re-interment at Thornsett Cemetery in a plot which the petitioner had reserved. The petitioner’s mother had recently died, but her cremated remains had not yet been interred. The petitioner stated that his mother had expressed a wish for her cremated remains to be buried at Thornsett; he therefore sought to respect his mother’s wishes and also unite his parents’ remains at Thornsett. The Chancellor refused to grant a faculty. The cremated remains of both parents could be reunited at New Mills. The Chancellor did not consider that the wish to create a new family grave elsewhere justified the disturbance of an existing family grave. [Re St. George New Mills [2021] ECC Der 2] [Top of section] [Top of post]


Churchyards and burials

Designation of closed churchyard

See Privy Council Business in Part III.

[Back] [Top]

Churchyard Regulations

Re St. Michael Rossington [2021] ECC She 5 A retrospective application was made in the matter of a memorial to the parents of the petitioner who were buried in St Michael’s churchyard; her parents and grandparents are also buried there. Keith Ashton Memorials, who had provided a memorial stone commemorating the petitioner’s mother, had been requested to replace the headstone with the addition of a short inscription to include her father [1].  The stone was replaced shortly after the interment; however, authorisation for the replacement stone with the new inscription was not sought. The applicant was unaware that such authorisation was necessary.

The Area Dean had sent two letters to Keith Ashton Memorials concerning this and another memorial placed in St Michael’s churchyard, both without authorization; neither memorial would have been permitted in its existing form by the Area Dean had he been consulted [3]. The Deputy Chancellor reviewed the relevant legislation, stating [emboldening in original]:

“[5]. The purpose of the [Chancellor’s] Rules is to ensure that churchyards promote respect for the deceased and comfort for their loved ones. Those wishing to install a memorial in a Church of England churchyard should be informed, sensitively and tactfully, that they do not have an unfettered choice to place anything they wish. Memorials must be within the Rules or permitted by the Chancellor. Memorial masons must be aware of the law as it applies to churchyards and of the relevant local Rules and must advise the bereaved accordingly.

[6]. Guidance is provided as to the suitability or otherwise of inscriptions by ecclesiastical law. Compatibility with the consecrated character of the site is expected, though it is not necessary that the inscription (if otherwise inoffensive) should conform to the religious views of the Church of England, Re St Mary the Virgin, Ilmington [1962] 1 All ER 560. Biblical or suitable literary quotations are permissible. ‘Homespun verse’ and ‘pet names’ have been met with disapproval, Re Holy Trinity Freckleton [1994] 1WLR 1588…”

The new memorial included the additional words, ‘Honey I missed you‘, being a line from a song which the petitioner’s father used to sing at his wife’s grave. The Area Dean had considered the wording of the memorial to be inappropriate, and although “it would seem an obvious assumption that the word ‘honey’ used as a term of endearment was the problem”; she doubted that, had that one word been omitted, there would have been any difficulty [6].  Nevertheless, she took a pragmatic view in this case; a retrospective faculty was issued and the inscription was permitted to stand in its current form. [Re St. Michael Rossington [2021] ECC She 5] [Top of section] [Top of post]

Re St. Andrew Castle Combe [2021] ECC Bri 1 The Petitioners sought to introduce a memorial with side and foot kerbs to match a headstone that falls outwith the Churchyard regulations; the petition had the support of the incumbent and the PCC. The Chancellor noted:

“[3]. The kerbs petitioned for are not generally allowed as they make tending the graveyard difficult when the grave falls into disrepair, as they make mowing the grass impossible and if they collapse they can create trip hazards.”

The Court was provided with “large number of memorials with kerbs already in place, and noted “[t]he area is well tended and is a welcoming and an easily accessible space”.  Whilst these other kerbed memorials do not create a precedent, the appearance of the space makes it clear that all the memorials in place are well cared for and do not create any hazards [4].

In these circumstances the Chancellor was prepared to grant a faculty for the side kerbs and foot kerbs, on the condition that these are maintained safely [5]. [Re St. Andrew Castle Combe [2021] ECC Bri 1] [Top of section] [Top of post]

Re St. Andrew Haughton-le-Skerne [2021] EACY 1 After considering the judgments of the Chancellor of the Diocese of Durham in Re St. Andrew Haughton-le-Skerne [2018] ECC Dur 2 and Re St. Andrew Haughton-le-Skerne [2021] ECC Dur 3, the Auditor of the Chancery Court of York refused permission to appeal against the Chancellor’s decision that a ledger stone bearing an enamelled photograph should be removed from an area of the churchyard set aside for cremated remains. The Court held:

“[3]. The proposed Appeal does not have ‘real prospects of success’ (within the meaning of the Faculty Jurisdiction Rules 2015 (as amended)) in that the renewed application discloses no grounds of law upon which to base any argument that the Chancellor erred in law. The Chancery Court cannot overturn the lawful exercise of a chancellor’s discretion.

[…]

[5]. The Chancery Court does not have jurisdiction to “review” the lawful exercise of a chancellor’s discretion (as requested at point 4 of the “concise statement of reasons relied on in support of the application”). It is unclear whether the photographs submitted with the Application were before the Consistory Court; no application has been made to admit them but the Auditor has looked at them in any event. They do not disclose any basis for arguing that the Chancellor erred in law in exercising his discretion.

The Auditor notes that the Chancellor visited the churchyard in order to aid his consideration of the Appellants’ suggestions to the effect that her son’s memorial was being unfairly singled out for enforcement action. (Judgment paragraph [6]). The Chancellor had regard to relevant principles of law and provided adequate reasons for his conclusion that his order for removal ought not to be set aside.”

[Re St. Andrew Haughton-le-Skerne [2021] EACY 1] [Top of section] [Top of post]

Re St. James Alveston [2021] ECC Cov 4 The remains of the petitioner’s two parents and their daughter were interred in a single grave, the daughter having been the last to die. The grave was marked with a grey granite memorial to the parents. The petitioner sought permission to take down the memorial, crop it and lay it flat on the grave, and then put at the head of the grave a new memorial of Westmorland green slate in memory of the daughter [1] to [3].

The PCC and the DAC felt unable to support the proposal [4], [5]; there were no objections to the public notice [6]. The Petitioner had provided very little information in the written petition concerning why it was sought to dismantle, alter and lay flat the existing memorial and to raise a new memorial in a non-local stone [7]. The Diocesan Churchyard Regulations had been issued on All Souls Day 2020 by the previous Chancellor, and subsequently amended, in part, in June 2021 [8]. The Chancellor noted

 “[11]. …Clearly the collective view of the members of both the PCC and DAC was that the proposed natural green slate of the proposed memorial to Diane Avril Minor would not be harmonious in this particular Churchyard…The headstone in natural green slate would very clearly stick out as completely different [from] the other memorials in that area”.

With regard to the intention to dismount, modify and lay flat the existing headstone,

“[13. …the headstone undoubtedly now belong to their heirs at law (section 66(5)(b) Ecclesiastical Jurisdiction and Care of Churches Measure 2018). It would be wrong of me to simply presume that the Petitioner is exclusively the ‘owner’ of that memorial and entitled to seek change to the stone. The measure does, of course, permit the Consistory Court deciding to authorise changes to or demolition of a headstone even without the consent of the owner, but there would need to be very good reason to stray from the usual assumption that a memorial will remain in place unless or until it becomes unsafe, unreadable or the grave space is reused. The Petitioner has not satisfied me that he is the sole owner of the current headstone … [and] there is good reason to dismount, crop and lay flat the existing memorial”.

Citing Chancellor Mynors in Re St Mary Kingswinford [2001] 1 WLR 927, who summarized the circumstances in which such a faculty could (but need not necessarily) be given, Chancellor Samuel stated that in the instant case none of the four suggested grounds had been proved to apply to the proposals in this petition [16].

Based upon the consideration of ownership, choice of material, and the issue of modifying t the existing memorial, the Chancellor refused to grant a faculty. [Re St. James Alveston [2021] ECC Cov 4] [Top of section] [Top of post]

. [Re St. James Alveston [2021] ECC Cov 4] [Top of section] [Top of post]

Re St. Paul Foxdale [2021] EC Sodor 3 The Vicar General and Chancellor granted a faculty for a memorial with a curved top and eccentric scalloped sides. Although the design was outside the churchyards regulations, he considered that the design was both tasteful and appropriate. He stated:

“[5]. A faculty will issue to authorise the erection of the proposed memorial with either version of the inscription proposed by the Diocesan Advisory Committee and subject to there being no more than three kisses. The dates of birth and death are to be placed below the inscription and the kisses, all of which are to be centrally justified on the stone”.

[Re St. Paul Foxdale [2021] EC Sodor 3] [Top of section] [Top of post]

Reservation of grave space

Re St. Cuthbert Fishlake [2021] ECC She 4 The petitioner, aged 84, wished to reserve a grave in the churchyard. She did not live in the parish, but had been baptised, confirmed and married at the church, and a number of her relatives are buried in the churchyard, including her parents, grandparents and great grandparents [1]. The parish is presently in vacancy, and through the churchwarden, the PCC expressed its opposition to the request. There are 26 burial spaces remaining, and it is estimated that these will be used within the next 10 years [4]. The PCC’s burial policy does not a procedure for the informal reservation of burial plats, although  having a parent buried in the churchyard and having a strong connection with the church would be considered good reasons for allowing a burial of someone without a right to be buried there, such as the petitioner.

Citing the applicable law Re West Pennard Churchyard [1992] 1 WLR 32 and Re St Margaret’s Drayton [2015] Norwich Const. Ct [unreported], the Chancellor stated:

“[8]. Although I would, in general, wish to permit an application of this nature to succeed to reduce understandable worry on the part of the Petitioner and her family I do not consider that I can exercise the wide discretion I have in this case in favour of allowing this petition”

She declined to grant a faculty on three grounds: the remaining burial spaces in this churchyard are few and likely to be exhausted in a relatively short space of time; the Petitioner is not in that class of person with a right to burial in the churchyard and any reservation for her would reduce the diminishing resource for those who have such a right; and the PCC have in place a transparent and fair policy for the rationing of the diminishing resource and it would be wrong to override such a policy with a faculty authorised reservation based upon sympathy for the anxiety of an applicant in these circumstances.

Nevertheless,

“I can be confident, as can the Petitioner, that the facts that support her strong connection with this church and churchyard would be properly considered by the decision makers under the existing policy in the event of her death”.

[Re St. Cuthbert Fishlake [2021] ECC She 4] [Top of section] [Top of post]

Re Holy Trinity Belbroughton and Fairfield  [2021] ECC Wor 3 The petitioners sought to reserve a double grave in the churchyard extension for 25 years – the standard duration requested on the current version of the application form [1,2]. They live in the parish and therefore have a right to burial in the churchyard of Holy Trinity Church; they indicated their willingness to donate £200 to the PCC upon grant of the faculty, to contribute towards the costs of maintaining the churchyard. The petition was supported by the incumbent and churchwardens, and the PCC [3]. The Chancellor granted the petition, but for the period of ten years [7]; the churchyard is likely to have space for burials only for the next ten years, and the Chancellor took the view that it is not right to grant a faculty for longer than the churchyard is likely to remain open, in the circumstances of this case [10]. Other written reasons in support of her decision are at [8] to [13]. She concluded:

“[15]. It remains open to the petitioners to apply at any time for an extension of the 10-year period, for example, should their personal circumstances change or in the event that more space becomes available in the churchyard such as by the consecration of an extension to the churchyard or a policy on re-use of older graves being adopted”.

[Re Holy Trinity Belbroughton & Fairfield [2021] ECC Wor 3] [Top of section] [Top of post]

Re Holy Trinity Belbroughton and Fairfield  [2021] ECC Wor 4 The petitioners applied to reserve a double grave in the churchyard extension [1].  The churchyard was likely to have space for burials for only the next 10 years. Although the petitioners did not live in the parish and did not therefore have a legal right to be buried in the churchyard, the application was supported by the Incumbent and Churchwardens and the Parochial Church Council. They indicated their willingness to make a donation of £200 to the PCC upon grant of the faculty, to contribute towards the costs of maintaining the churchyard [3].

The Chancellor granted a faculty, but limiting the reservation of the grave to 10 years, taking the view that, “in the circumstances of this case it is not right to grant a faculty for longer than the churchyard is likely to remain open.” The Chancellor left it open to the petitioners to apply for an extension in 10 years’ time. [Re Holy Trinity Belbroughton & Fairfield [2021] ECC Wor 4] [Top of section] [Top of post]

Environmental Permit

Re St. Peter Powick [2021] ECC Wor 1 The petitioners had sought permission to: excavate, inspect and repair the existing trench arch system; and if found to be beyond repair, install an extended trench arch drainage system within the churchyard, connected to existing facilities, with the addition of a macerator [1]. An interim faculty for the first part of the works, the investigations, was granted on 22 February 2021, subject to conditions which included provision for the immediate publication of the petition prior to works commencing and for the work to cease pending further directions if any objections were received. An archaeological watching brief was also made a condition of the interim faculty. The DAC particularly recommended dealing with the case in two stages, with investigation and possible repair as the first stage, as they had not had previous experience of a trench arch drain failing [2].

On completion of the investigative stage of the work, the petitioners sought to proceed to a full faculty, specifically to permit an extended trench arch drain to be created. There had been no objections to the work and the archaeological watching brief has taken place during the interim investigative works [2]. This initial investigation confirmed that the drainage was by way of trench arch drain, and that the drain had failed because: it was not large enough; and also not at a steep enough angle to allow the waste foul water to drain properly [6].

The proposals are detailed in [7] to [14], and the alternatives considered in [15] to [19]. Applying Re St. Alkmund, Duffield [2013] Fam 158, the harm that will be caused to the church was identified as the potential damage to the archaeological significance of the church, caused by the drain being cut through the churchyard and the drainage into the churchyard of foul waste water through the trench [21]. The Chancellor consulted with Heritage England, the Church Buildings Council and the Local Authority in respect of these proposals. Both HE and the CBE responded and were content to offer no objections and to defer to the views of the DAC [22]. The Local Planning Authority, Malvern Hills, did not responded following a full 42 days consultation period and it was assumed that they too had no objection to the proposed works. [24].

The principle of installing a toilet and kitchen into St Peters had already been made, and it was not one that Chancellor Humphreys wished to reverse.

“[26]. …Such a decision having been made, it is obvious that such facilities, given that they exist, should work properly and be available to the users of the church. The need for a functioning and hygienic toilet is easily made out, and it therefore follows the need for a proper means of dealing with the waste that it will produce is required and is likewise made out.

[27]. This need outweighs the harm to the archaeological significance of the church, which itself will be ameliorated by the archaeological watching brief that is proposed.

The Chancellor granted a faculty, subject inter alia to a condition requiring a continuing archaeological watching brief. [Re St. Peter Powick [2021] ECC Wor 1] [Top of section] [Top of post].


Cite this article as: David Pocklington, "Ecclesiastical court judgments – October (II)" in Law & Religion UK, 8 November 2021, https://lawandreligionuk.com/2021/11/08/ecclesiastical-court-judgments-october-ii/

 

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