Review of the ecclesiastical court judgments during December 2021
In December 2021, four consistory court judgments were circulated, and these relate to Reordering, extensions and other building works and Exhumation. This summary also includes Privy Council Business, and CFCE Determinations, as well as links to other posts relating to ecclesiastical law.
Re St. Mary Barnes  ECC Swk 10 The petitioners – the Team Rector, Team Vicar, Vice-Chair of the Parochial Church Council and a Churchwarden – sought a faculty for permission to install a wall-mounted monument commemorating the Hoare Family of Barn Elms on the north wall of the Langton Chapel in the church . The PCC had given unanimous support  and the DAC had recommended the work for approval by the Court. It certified that in its opinion it did not consider that the work was likely to affect the character of the church as a building of special architectural or historic interest – a moot point in the view of the Chancellor .
The church was very badly damaged by fire in 1978 , and the monument commemorating sixteen members of the Hoare family was destroyed in the fire save as to two fragments which were remounted elsewhere on the wall. It was not possible to replace the monument with a replica in situ since on the wall behind the monument was discovered the remains of a mediaeval wall painting which had survived the fire .
The Chancellor noted that Sir Richard Hoare [referred to as “Richard (III)”] was a wealthy man who lived in the eighteenth century, and “[a]ccordingly the question follows arises as to possible links which he might have had to the slave trade” . The history of the family is summarized at [10, 11] from which the Court concluded:
“. It will be seen that there is no known direct link between Richard (III) and the slave trade. The indirect link is that he was the great grandson of Richard (I) who did have strong connections with the slave trade and the grandson of Henry (I) who had made money by the purchase and sale of South Sea stock.”
However, although there were no objections to the proposal, the Chancellor felt that, in the current climate of “public interest in contested heritage issues”, he had to address the issue of the connection of the Hoare family with the slave trade in the early 18th century.
Having considered any potential arguments which could be raised, he decided to grant a faculty. None of the family members to be commemorated had links to the slave trade, but only a member of the family two generations earlier than the oldest of those to be commemorated. [Re St. Mary Barnes  ECC Swk 10] [Top of section] [Top of post]
Re Holy Trinity Claygate  ECC Gui 2 Holy Trinity Church in Claygate is listed Grade II; the interior is simple and largely undecorated, with almost the entire interior of the nave is painted white. Nevertheless, a dominant feature of the interior is the current seating: conventional light-coloured wooden chairs with shelf at the rear, upholstered in red, both seat and back, which contribute the most significant element of colour to the interior 
The petitioners wished to replace the present ageing chairs with tubular metal chairs upholstered in ‘graphite’ grey. These could be stacked 25 high and moved around on a trolley, unlike the present chairs which can only be staked in groups of five . There were two letters of objection, the main objections being the aesthetic appearance of metal chairs . Another objection was that, unlike the wooden chairs, the metal ones would not have a shelf under the seat for Bibles and hymn books .
The Chancellor commented:
“. I am familiar with this church and aware of the appearance of warmth that the current chairs generate. I also appreciate how familiarity is itself an important principle. However, it is not possible to gainsay the fact that the existing wooden upholstered chairs are ungainly to move and require much greater human effort than chairs that are much easier to manoeuvre and can stack in larger numbers.
As a chair-mover and stacker myself for many years, I am aware of how time-consuming this can be, often at inconvenient times of the evening and not without considerable effort, sometimes with little assistance.”
The Chancellor granted a faculty. He considered that, whilst the proposed grey colour was more sombre than the existing red upholstered chairs, this would be offset by the brightness of the white walls of the church’s interior and the light carpeting. [Re Holy Trinity Claygate  ECC Gui 2] [Top of section] [Top of post]
“. This case should serve as a warning to ministers and parochial church councils about the potential pitfalls of seeking to operate an informal system of grave reservations outside the lawful confines of the faculty system. In the present case, it has resulted in some 18 months of acrimony within the deceased’s wider family and has led to this petition”.
He also noted:
“. Both parties’ positions have shifted during the life of this dispute. With a little more goodwill on each side, the need for this petition could have been avoided. Although there is presently no cross-petition, both parties have effectively been in the position of petitioners seeking appropriate relief from the court in their favour”.
Before reading the 21-page judgement, it would be instructive to bear in mind the Chancellor’s comments: “There are too many aspects of the evidence in this case that simply do not seem to make any sense ”. The concise summary provided by the Ecclesiastical Law Association is reproduced below.
“The petitioner sought a faculty authorising the interment of the ashes of the petitioner’s late father in the existing grave of his son, who had died aged 26 in 1982. The grave also contained the ashes of the petitioner’s mother, who died in 2001. The son’s widow, who had been in a new relationship for many years, had always wished to be interred in the same grave as her late husband, and she objected to her father-in-law’s ashes being added to the grave as she thought that a further interment of cremated remains in the grave would prevent her own burial in the grave with her late husband.
At one time it had been thought that the grave was only single-depth, but it was established that the son was buried at double-depth. The Chancellor granted a faculty for the father’s ashes to be interred in the grave in such a position as not to inhibit the burial of his daughter-in-law with her late husband in due course and that, subject to the presentation of a petition by the daughter-in-law, the Chancellor would grant a faculty reserving to her the right to be buried in her late husband’s grave”. [Re Joseph Henry Mather deceased  ECC Bla 6] [Top of section] [Top of post]
Re St. Peter & St. Paul Wymering  ECC Por 3 The Petitioner sought permission to remove her father’s cremated remains from Wymering’s churchyard extension to a family plot in the municipal Waterlooville Cemetery, where hem mother wished to have her remains interred when the time came [2,3]. In her statement in support of the petition, the Petitioner set out a number of concerns about the present location of her father’s remains which she contends justify their removal , viz: the family had expected the ashes to be buried in the area set aside for cremated remains in the churchyard, but at the funeral they did not feel able to object to the grave having been dug in the extension; the grave was in a position under what was now a large overgrowing tree.
There are two parts to the churchyard and burial ground; the main churchyard which surrounds the church, and a burial ground (“the new burial ground”) situated opposite the church in which the Petitioners’ father’s remains were interred. The new burial ground was closed by an Order in Council made under the Burial Act 1853 on 18th May 1994, a few weeks before his interment . The effect of the Order was that further burials were (and are still) prohibited, except as specifically provided under the terms of the Order. In relation to cremated remains, interment in a closed churchyard may only take place in prescribed circumstances .
Noting the provisions of s3(1) Church of England (Miscellaneous Provisions) Measure 1992, which was in force at the relevant time, the Chancellor observed:
“. In the present case, the Order in Council contains no exception allowing for further burials or the interment of cremated remains in the new burial ground and there is no record of any faculty having been sought or granted either for the interment of [the deceased’s] remains or for the interment of cremated remains generally. Accordingly, I am satisfied that the interment of [his] remains in the new burial ground was in breach of section 3 of the 1992 Measure”.
Citing with approval In re St John Dipton  PTSR D29 per Bursell QC Ch., the Chancellor stated (at ) that fact that the interment was irregular does not itself provide a ground for exhumation or obviate the need for a faculty for that purpose. The breach could have been, and still could be, remedied by the retrospective grant of a faculty, but he noted that that would not accord with the family’s wishes.
“. The present petition for exhumation must be determined on its merits, but in my judgment, the closure of the burial ground and irregularity of the interment are relevant to that determination, since they affect the ability of the family to achieve their wish for the late Mr Saunders’ remains to be included in a family burial plot. While a faculty could be sought for the interment in the
current plot of the remains of Mrs Saunders or other family members in due course, that is unlikely to be an acceptable course for the family, given their concerns about the suitability of the plot itself”.
The relevant principles underlying the exercise of the court’s powers in this case are set out in Re Blagdon Cemetery  Fam 299; this refers to the protection afforded to remains interred in unconsecrated ground at [15, 16].
“. In the present case, the proposed re-interment would be in unconsecrated ground in a local authority cemetery and, while the court must consider whether there are circumstances which, exceptionally, justify exhumation for that purpose, it is not necessary for the court to examine arrangements for the care of and access to the new grave.”
The Chancellor considered consider the circumstances relied on in support of the petition in the present case: the circumstances of the interment [17, 18]; the proposed re-interment and the family’s wishes [19, 20]; the location and condition of the current plot [21 to 23].
He concluded that this was an unusual case, in which the particular combination of features has led him to conclude that there are special circumstances which justify the proposed exhumation and re-interment” : the circumstances surrounding the original interment were unsatisfactory and irregular ; the family’s wish for family members to be interred with or close to each other in one place is reasonable and entirely understandable, from both a practical and (more importantly) an emotional perspective ; and while not sufficient by itself, the Petitioner’s concern about the location and condition of her late father’s grave, is understandable and contributes to her overall distress at the present situation .
With regard to burial in unconsecrated ground, there was no evidence about the availability of a plot in consecrated ground, but the family’s choice of a plot in Waterlooville Cemetery is prompted by family connections and is, in the Chancellor’s judgment, reasonable [28(i)]. And with regard to the lapse of time, since Mr Saunders’ interment, the family’s belief that there was nothing they could do and their realisation, only recently, of the implications of burial in a closed churchyard are in my judgment sufficient to explain why action was not taken sooner. The proposed exhumation would not present any practical difficulties and could be undertaken without undue disturbance to the remains themselves [28)ii)].
Balancing all these factors, the Chancellor was satisfied that they amount to special circumstances which justify the proposed exhumation of the remains of the late Mr Saunders and their re-interment in the chosen plot in Waterlooville Cemetery and accordingly he directed that a faculty would issue for that purpose .
- Burial Act 1853 (Notice): Order giving notice of the discontinuance of burials in: 1. Churchyard of St James’ with Christ Church, Wakefield, West Yorkshire;
2. Churchyard of St. Luke’s, Maidstone, Kent; 3. Corley Parish Churchyard, Church Lane, Corley, Coventry, Warwickshire; 4. St John the Evangelist Churchyard, Sewerby, East Yorkshire; 5. St John’s Church Churchyard, Skipton on Swale, Thirsk, North Yorkshire.
- Burial Act 1853 (Final) Order prohibiting further burials in: 1. St Helen’s Churchyard, Little Cawthorpe, Lincolnshire; 2. Cross Stone Cemetery (St Paul), Todmorden, Leeds, West Yorkshire; 3. St John the Evangelist Churchyard, Merrow, Guildford, Surrey.
The dates of the Cathedrals Fabric Commission for England may be found by scrolling down to the bottom of the page Cathedrals Fabric Commission. The determinations made at last meetings was on Wednesday 15 December 2021 are not yet available. The next meeting of the CFCE is on Thursday 27 January 2022.
Recent summaries of specific issues that have been considered in the consistory courts include:
- Electronic registration of births and deaths, England & Wales – II, (17 December 2021).
Notes on the conventions used for the navigation between cases reviewed in this post are summarized here.