Ecclesiastical court judgments – November (II)

Review of the ecclesiastical court judgments during  November 2021 (II)

Sixteen consistory court judgments were circulated in November, and the five featured in the first part of the round-up relate to Reordering, extensions & other building works and Fonts. Also included were CDM Decisions and Safeguarding, Privy Council Business, CFCE Determinations, as well as links to other posts relating to ecclesiastical law.

This second part reviews the remaining eleven judgments which concern Exhumation and Churchyards and burials.


Exhumation

Errors in burial

Re St. Laurence Meriden [2021] ECC Cov 5 The petitioner wished to exhume the cremated remains of her parents and re-inter them elsewhere in the same churchyard. The remains of both parents had been interred in a double casket in 2020; the Petitioner’s husband, a member of the parish churchyard maintenance team, had been permitted to dig the plot himself [2].

Unfortunately, due to an error in the Parochial Church Council’s official documentation [3], the casket was interred in an unmarked plot containing the remains of another person. The mistake came to light when the petitioner subsequently applied for permission for a memorial stone, but was only informed on the very day that the memorial due to be erected [3], an issue on which the Chancellor expressed surprise [11]. The Parochial Church Council and Churchwardens openly admitted that the error rests with record-keeping within the Parish, and the PCC had agreed to fund the costs of the application [4].

In view of the fact that an administrative error had been made, the Chancellor was satisfied that this was an exceptional circumstance which should override the presumption of permanence of burial and he therefore granted a faculty. He further added:

“the avoidance of any doubt, I direct that the Parochial Church Council of Meriden, St Laurence, bear the costs of this faculty and for the exhumation and re-interment.”

[Re St. Laurence Meriden [2021] ECC Cov 5] [Top of section] [Top of post]

Other

Re St. Mary Northolt [2021] ECC Lon 3

The Petitioner sought permission to exhume the mortal and cremated remains of his daughter from consecrated ground at St Mary’s Churchyard, Northolt for the purpose of scattering her ashes in the Gardens of Remembrance at Breakspear Crematorium [1]. Although the Churchwardens and PCC had consented to an exhumation, Breakspear Crematorium to the scattering of the ashes and her mother and close family had also given their consent, the Chancellor stated that he was required to consider the circumstances of any proposed exhumation from consecrated ground in a churchyard with the greatest of care in accordance with ecclesiastical law [4].

Citing Re Blagdon Cemetery [2002] Fam 299, he noted:

“[11]. In this case, in fact, the proposal is to remove the cremated remains from their location in consecrated ground and to scatter the ashes in a different location. By definition, the scattered ashes will not lie permanently in consecrated ground. I have seen no indication that this represents the wishes of the deceased who expressly sought to be buried.”

With regard to the assertion that the local council neglected to tend the grave,

“Tending of the memorial itself is a matter generally for the family of a deceased person. If the complaint is that the churchyard itself is not being maintained properly then that is a matter to be raised with the local council. Memorials do weather with age and that is again another feature that we all have to face when visiting the graves of loved ones.”

In refusing the petition, the Chancellor stated:

“[13]. It is not unusual for people to re-think the burial arrangements of those who were very close to them when they themselves become older, particularly if they are frail and unwell. I entirely understand and sympathise with those feelings. There is, however, nothing in this petition that I could justify as even approaching an exceptional or special circumstance to justify disturbing this lady’s resting place in consecrated ground where her remains have lain for nearly 15 years.”

 [Re St. Mary Northolt [2021] ECC Lon 3] [Top of section] [Top of post]

Re Mitcham Road Cemetery Croydon [2021] ECC Swk 9 The petitioner’s father died on 17 September 2020 and his remains were buried in a consecrated double depth grave in the cemetery, with the intention that in due time the petitioner’s mother’s remains should be buried in the same grave [1, 2]. The petitioner’s mother died in September 2021 and shortly before, a very large memorial, which did not comply with the cemetery regulations, was erected on an adjacent plot. The family felt that the adjacent memorial was so large that it seriously overshadowed the grave of the petitioner’s father. It was therefore decided to bury the petitioner’s mother’s remains in another double depth plot in the same cemetery and to seek permission to move the petitioner’s father’s remains to his wife’s grave [4].

The Chancellor noted that the circumstances in the present case appeared to be exceptional, although he added that control over municipal cemeteries falls to be exercised by the Consistory Court only in the clearest of cases; and whether the memorial is removed or modified will not be a matter for him but Croydon LBC [9]. He stated however:

“the way to avoid any further distress is to grant a faculty and this I propose to do. It seems to me that the importance of maintaining the norm of permanence – which of course is not inflexible – should yield on this occasion to weighty pragmatic considerations.”

[Re Mitcham Road Cemetery Croydon [2021] ECC Swk 9] [Top of section] [Top of post]


Churchyards and burials

Development of churchyard

Re St. Nicholas Charlwood [2021] ECC Swk 8 The petitioner, a churchwarden, sought to undertake repairs to three box tombs in the churchyard; these dated from the late 18th and [early] 19th centuries [1]. The Chancellor noted that:

“Box tombs deteriorate over the years. As regards two of them, the top slab is broken and needs repair if it is not to deteriorate further, presenting a potential safety hazard. As regards the other, the two (longer) sides have collapsed, leaving the top slab supported only by the two (shorter) sides. Unless it is repaired, this tomb, too, will deteriorate further and present a safety hazard” [5].

The DAC recommended the works for approval by the Consistory Court [2]. There was one objector (who did not become a party opponent), who raised a number of issues, but the Chancellor did not regard the objections as grounds for refusing a faculty. Her objections were reviews in [13] to [19], albeit of their irrelevance to the petition.

The issue of whether the tombs fell within the “ecclesiastical exemption” was considered in [8] to [12]. The Chancellor noted:

“[9] …Although there is scope for argument…it might appear that the tombs are within the curtilage of the church. Further, if the ecclesiastical exemption did not apply, then the tombs would be treated as listed buildings

The DAC  did not advise that Historic England be consulted [10], but out of an abundance of caution, the Chancellor determined to do so, commenting; “if this happens no-one can say that due process was not followed and the key heritage stakeholder given the opportunity to comment on the substance of the proposals”.

A faculty was granted, subject to Historic England not making any representations within 28 days. If any representation were to be made, the matter was to be referred back to the Chancellor for further directions. [Re St. Nicholas Charlwood [2021] ECC Swk 8] [Top of section] [Top of post]

Designation of closed churchyard

See Privy Council Business

[Back] [Top]

Churchyard Regulations

Re St. Mary and St. Peter Claydon and Barham [2021] ECC SEI 1

The petitioners applied for the re-introduction of a graveyard memorial to their father; they prayed for its re-introduction because it had been installed without notice or permission “in early 2020” (as stated in the petition) and was, quite lawfully, removed during the Covid 19 lockdown [1]. The Chancellor noted “if the petitioners or the stone masons had been wise enough to follow very standard procedures, then this whole unpleasant business might have been avoided” [2]. Chancellor Gau commented that he did not accept that simply because there has been a breach of the rules in the past he should grant permission for this memorial now. However, “It is clear…that there has been a wholesale flouting of the Churchyard rules in this Churchyard which is deeply regrettable and means that the weight I give the objections set out by the PCC is lessened” [8]. He concluded:

“[10]. In summary, it is plain that the proposed memorial does not conform to the traditional lawn or monolith style, but I also observe that many of the memorials that do conform to that rule in the Churchyard breach several other rules. I am content that the Maltese Cross is entirely appropriate in a Churchyard. I note that the memorial replaces an item forbidden by the rules (a flower container) that was not objected to or removed by the PCC and which plainly did not impede the maintenance of the Churchyard.”

He determined that “the memorial proposed is attractive and complements the original memorial in place” and granted a faculty. [Re St. Mary & St. Peter Claydon and Barham [2021] ECC SEI 1] [Top of section] [Top]

Re All Saints Darton [2021] ECC Lee 6 The petitioner sought a faculty for the introduction of kerbs around a family grave where his son is buried [1]. The Chancellor, the Worshipful Mark Hill QC, cited the Court of Arches judgment Re St. Giles Exhall [2021] EACC 1 in relation to the merits-based approach to be adopted:

“[11.8] We consider that the right approach is the merits-based one. Clearly, any Regulations in place for the parish or diocese concerned will be part of a matrix of relevant considerations, but we do not think that consideration of a faculty petition should start with a presumption against allowing a memorial outside the parameters of the Regulations, for the reasons articulated in the first instance judgments cited in paragraphs 11.5 and 11.6 above.”

He noted that this coincided with the manner in which petitions of this type had hitherto been determined in the Leeds diocese: e.g. generally, Re St. John the Baptist Adel and St. Michael Markington [2016] ECC Lee 8 [5]. In order to carry out a merits-based analysis, the Chancellor invited submissions from the incumbent, the PCC and the DAC, whose views broadly coincided. It was observed that the churchyard in general, and particularly the area surrounding the grave in question, contained many examples of graves with kerbs.

The judgment notes: “[i]ndeed they appear to be the norm, rather than the exception. The PCC did not raise any concerns with regard to grass mowing or other churchyard maintenance issues as reasons why kerbs should be discouraged. The kerbs would not look out of place and were generally considered to be unobjectionable”. In all the circumstances, the merits point towards the grant of a faculty. The Chancellor emphasized “this is a fact-specific determination and should not be interpreted as creating any form of precedent for the parish of All Saints, Darton or more widely within the diocese”. He also endorsed the observation of the DAC Secretary, that the incumbent and PCC might wish to consider introducing bespoke churchyard regulations, for which they will need to petition for a faculty setting out their reasons and attaching a detailed draft [7]. The Chancellor therefore directed that a faculty pass the seal [8]. [Re All Saints Darton [2021] ECC Lee 6] [Top of section] [Top of post]

Re Christ Church Brampton Bierlow [2021] ECC She 6  The Petition, which was issued ultimately in May 2021, sought retrospective permission for the installation of a memorial introduced to the churchyard without permission in November or December 2019 at the site of the grave of Irene Poole (1912-1952) [1]. The Chancellor’s neutral summary of the background is given in [2]. This notes a conflict in the versions of events according to the then churchwarden, Mr Steven Scutt, and the firm of stonemasons [2.4]. The PCC of the Church, after a unanimous vote, lodged an objection to the retrospective Petition both because the memorial was said not to be in keeping with the churchyard and because it was installed without permission. The PCC did not seek to become parties to the application but requested that their objection was considered [2.7].

In July 2021, after the submission of the Petition and documents to the Chancellor, Mr Scutt was asked to arrange the burial within the grave of the cremated remains of Vera Poole,  the widow of George Poole and daughter in law of Irene Poole. That request was made by Mrs Kathryn Harrod, daughter of George and Vera Poole and granddaughter of Irene Poole. [2.9]. Mrs Kathryn Harrod informed the church warden that she was not aware of plans for the new memorial for which permission is sought and indicated her objection to it in December of 2019 [2.10].

The Petitioner confirmed that she was content for this matter to be dealt with by me on the papers and the Chancellor considered that it serves the overriding objective of the 2015 Faculty Jurisdiction Rules that she should deal with the substantive application on paper. “Unfortunately, there remains a dispute between the Petitioner and Mrs Harrod which lies outside the scope of this Petition which [the Chancellor did] not propose to resolve [2.4].

The Chancellor rehearsed the relevant law [5] to [8], noting Sections 69 and 70 of the Ecclesiastical Jurisdiction and Care of Churches Measure, Rule 19.4 of the Faculty Jurisdiction Rules 2015 (as amended); she also cited with approval dicta of Chancellor Turner QC in Re Holy Cross Woodchurch [2020] ECC Chr 2 and Chancellor Hodge QC in Re All Saints Calverton [2021] ECC Oxf 7 as to the principles to be applied when a petitioner seeks to establish that there are other memorials in a churchyard similar to that for which permission is sought and the balance to be struck between a parish seeking to enforce the rules and a petitioner who is set upon a particular form of memorial [8].

Having reviewed the evidence of the Petitioner [9], the PCC and the Church Warden [10], Kathryn Harrod [11], and Eden Memorial, the Chancellor concluded:

“[13]. The dimensions of this memorial, so far as I can see, are not greater than those permitted by the Diocese of Sheffield rules…Overall, I consider that this memorial has improved the appearance of this grave plot…Had a proper procedure been followed in this case it may well have happened that an informal approach to me would have been made before the memorial’s installation for a preliminary view as to my likely approach were it to be the subject of a faculty petition. I think it likely that I would have offered a neutral preliminary indication in favour of the proposed memorial

This memorial has now been installed for almost two years, an ordered removal after such a period would cause greater distress. In all the circumstances I direct that a retrospective Faculty issue to permit this memorial to remain in the churchyard. I have taken into account the views of the PCC and Mrs Harrod and have some considerable sympathy with their perspective much of which is shared by me.

However I do not consider that the defaults which have caused the issues here, however provoking, should detract from the essential evaluation of the memorial and whether it should be permitted. My essential evaluation is to permit it although I do so with deference and respect for the decision making of the church warden, the PCC and the clergy.”

The Chancellor considered that the stonemasons had been remiss in several aspects of this matter and decided that they should be required to pay a substantial proportion of the costs of the application [15]. [Re Christ Church Brampton Bierlow [2021] ECC She 6] [Top of section] [Top of post]

Re St. John the Baptist Berkswell [2021] ECC Cov 6 The Petitioner sought to removal of an upright memorial stone upon the grave of her brother and replace it with a similar headstone that would also commemorate their mother [1]. The existing headstone is outwith the churchyard regulations as it is of polished stone and was not locally-sourced; although the proposed replacement memorial is in a an approved type of stone, the memorial would fall outwith the regulations on account of the number of carved images requested [5]. In addition, the words ‘Mum, Nan and Great Nan’ were proposed as part of the inscription. However, the Chancellor was mindful that the wording proposed to commemorate the petitioner’s brother is exactly that as appears already upon a non-conforming memorial in the churchyard; also, two of the proposed hand-carved images are also very similar to those already upon the existing memorial. It is only the addition of a fairly small sized image of a rose that would be additional [9].

He noted: there was a good reason for an additional small image of a rose immediately beside her mother’s name; and for repeating (effectively) the images that have adorned the memorial to her brother for over forty years now. Although once it would have been considered inappropriate to use the expressions ‘Mum’, ‘Nan’ or ‘Great Nan’ upon a gravestone there is nowadays unlikely to be any reasonable objection to those particular terms of affection [9]. Furthermore, he was also mindful that a clear majority of the PCC has indicated support for the new memorial and the members of the Diocesan Advisory Committee decided to raise no objection to the proposed memorial, even though it clearly falls outside the Churchyard Regulations. The Chancellor granted a faculty. [Re St. John the Baptist Berkswell [2021] ECC Cov 6] [Top of section] [Top of post]

Reservation of grave space

Re St. John the Baptist Cold Overton [2021] ECC Lei 4 This judgment related to two separate faculty petitions by husband and wife for the reservation of adjoining grave spaces. The couple, in their early to mid-seventies, were resident in the parish, the wife had served on the Parochial Church Council for 25 years and as a churchwarden for 10 years, and the couple worshipped in the church and financially supported it.

The Chancellor notes that they both have a right to burial in the churchyard, but without the reservation of plots this is subject to the space available at the time of their deaths; the Incumbent and Churchwardens support the petitions; and by its resolution dated 27 April 2021, the petitioners were supported unanimously by the PCC [2].

It was estimated that there was sufficient burial space in the churchyard for at least 15 years; there is no policy in place as to the principles upon which petitions are supported or not supported [3]. A former churchwarden objected to the two particular plots being reserved, claiming that one of the plots contained a Victorian grave and the other was likely to contain the remains of a medieval cross [5 (a) to (e)]. However, the objector was unable to produce any evidence of his claims [16].

The “well-respected and highly experienced” local gravedigger, Alan Barnacle, informed the incumbent that he had never heard any mention of a medieval stone cross in the churchyard [12]. The Chancellor requested that the plots should rodded, and it was found that there was nothing to obstruct burials. In view of this and the petitioners’ strong connections with the church, the Chancellor granted faculties limited to a period of 20 years. [Re St. John the Baptist Cold Overton [2021] ECC Lei 4] [Top of section] [Top of post]

Re St. Augustine Kirkby-in-Cleveland [2021] ECC Yor 5

A couple sought reserve the exclusive right of burial in a plot in the churchyard of St Augustine, Kirkby-in-Cleveland [1]. The vicar stated that the couple “have never lived in the parish, have no relatives here nor any in our churchyard. They are not on the electoral roll, nor have they attended regular worship.” Their link with the village is through the school it is understood that the desire is for a headstone in the churchyard where her family can remember her [4].

The Chancellor noted that in this case there was no connection with the church, and was particularly struck by the fact there was no desire for a Christian burial service. He said “[t]he church historically has provided burial space so that human remains are laid to rest in anticipation of the final resurrection of the dead. The church takes very seriously its responsibility to care for those remains until that time, which is the reasoning behind not allowing exhumations unless there are exceptional circumstances. The context of Christian burial is one of hope for the future rather than simply providing a memorial to those who have die” [9].

There was no basis for making an exception to the general principles that apply to all decisions about these matters in this particular case. The Chancellor refused to grant a faculty: “As the applicants have no real connection to this church, and have no right to be buried in the churchyard, and have no wish for a Christian funeral, I am not satisfied that any case is made out for the reservation of a burial plot in this case” [14]. [Re St. Augustine Kirkby-in-Cleveland [2021] ECC Yor 5] [Top of section] [Top of post]

Trees

Re All Saints Friskney [2021] ECC Lin 5

This case relates to a boundary dispute in which the Petitioner, Chair of the Friskney Parish Council, applied for an injunction under FJR rule 16.2 to prevent Edwin Hodgson, publican, of The Anchor Inn, Church End, Friskney from: (i) lopping or felling any further trees demarcating the boundary between the Anchor Inn and the churchyard of All Saints, Friskney other than normal tree maintenance and (ii) erecting a replacement boundary structure to demarcate the boundary with the churchyard that has not first been approved by this court and (iii) no further steps are taken to infill the dyke on the boundary of the curtilage of the Anchor Inn and the churchyard [1].

The Chancellor noted that the parties were able to reach an agreement about the boundary line notwithstanding the delays that were caused by the Covid lockdown just as these proceedings began. Although it was his understanding that the PCC would have no representations to make about the boundary that has been agreed by the Applicant (who is the Chair of the Parish Council) and the Respondent, he. made the PCC a party to the proceedings as they are an “interested person”, so that they can make any representations, should they so wish [12]. He added:

“[14]. It may well be that the PCC of the Church will want to erect its own boundary on its land to give privacy to the churchyard now that the trees have been removed. This will be a matter for the PCC and if they intend to erect any form of fence then this will require a Faculty. I will give until 17/12/21 for the PCC to serve a Petition for a Faculty if so advised. If they intend to plant something on their side of the boundary then they would be well advised to obtain a Faculty before doing so given the history with this boundary”.

“[20]. The proposed final order to be issued under FJR 16.5 is as set out…being terms as appear to [the Chancellor] to be just.”

Re All Saints Friskney [2021] ECC Lin 5[] [Top of section] [Top of post]


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 (II)" in Law & Religion UK, 6 December 2021, https://lawandreligionuk.com/2021/12/06/ecclesiastical-court-judgments-november-ii/

 

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