Ecclesiastical court judgments, February (II)

Review of the ecclesiastical court judgments during February 2022 (II)

Fifteen consistory court judgments were circulated in February 2022, and the seven featured in this first part of the round-up all relate to Reordering, extensions and other building works, and memorials. This second part reviews the remaining eight  judgments which concern ExhumationChurchyards and burials and Bells; also CDM Decisions and SafeguardingPrivy Council Business, CFCE Determinations, as well as links to other posts relating to ecclesiastical law.

The Faculty Jurisdiction (Amendment) Rules 2022, SI 2022/155 were laid before Parliament on 23 February 2022 and come into force on 1 July 2022. The background to the changes was discussed in our post earlier this month.


Exhumation

Error in Burial

Re Shinfield Cemetery [2022] ECC Oxf 1 The petitioner’s maternal grandmother had been buried in grave space 951 in Shenfield Cemetery in 2006. The ashes of her grandfather had been buried in the same grave in 2009. The petitioner now sought permission for the temporary exhumation of her grandfather’s ashes, to facilitate the burial of her mother’s body in the same grave as her parents, with the ashes of the petitioner’s grandfather then being reinterred in the grave.

The Chancellor decided that, as the ashes had by mistake been buried at too shallow a depth as to allow the further burial, this was an appropriate case in which to grant a faculty. As a further reason for granting the faculty, the Chancellor said: “I also consider that the alternative test, formerly laid down and applied in Re Christ Church, Alsager [1999] Fam 142, of the existence of a good and proper reason for exhumation which most right-thinking members of the Anglican church would regard as acceptable, is also satisfied.” [Re Shenfield Cemetery [2022] ECC Oxf 1] [Top of section] [Top of post]

Other

Re St. Andrew Horbling [2022] ECC Lin 2 The petitioner sought a Faculty for the exhumation and re-interment of the remains of his father who was buried on in the churchyard of St Andrew, Horbling [1].

“[2]. The background to this Petition indicates with great clarity the importance of an up to date churchyard plan being easily available in the church to visiting clergy, undertakers and grave diggers. The absence of such a plan has created the circumstances in which confusion and misunderstanding have arisen about whether a grave space has or has not been reserved”.

The Chancellor was troubled that the investigation into this matter, the Rural Dean found that there was no record of any burials in the churchyard since 2017 [3]. The Petitioner’s late father had been buried in grave C17 in the churchyard. There had been an understanding by the petitioner that his mother would be buried in grave C18, next to her husband, and the petitioner had applied to reserve grave C19. The petitioner discovered that someone else had been buried in grave C18.

He therefore applied for his father’s remains to be exhumed and reinterred in the row behind row C, row D, so that the petitioner and his parents would in due time all be buried next to each other. On the recommendation of Mr Barnacle, “a very experienced gravedigger used by the undertakers”, the Chancellor granted a faculty authorising a trench to be dug from the petitioner’s father’s grave to the grave space behind, so that the coffin could then be slid into the new position in row D. [9].

This activity of “coffin sliding” appears to be one of the “tricks of the trade” used to move coffins to adjacent plots to remedy errors in their interment. The practice was strongly condemned by McGregor Ch, in Re Fairmile Cemetery Lower Assendon [2017] ECC Oxf 2 (at [35]), and in Re St John Washborough [2019] ECC Lin 6, in which Bishop  Ch commented (at [9]):

 “… if the coffin could be kept beneath the surface of the ground while work was done around it, then a faculty for exhumation may not have been required. I make no finding upon this issue which has not been argued before me”.

With regard to Mr Barnacle’s suggestion in Re St Andrew Horbling, Bishop Ch provided the useful clarification (at [10]) (emphasis added):

“I am satisfied that such a procedure would not constitute exhumation of the body because at all times the remains would not be lifted from the ground but remain at the depth at which they were buried. A Faculty is required for this process because it interferes with human remains after burial, which would be unlawful without lawful permission, but because it is not an exhumation the legal framework set out in In re Blagdon 2002 Court of Arches does not apply”.

The Chancellor made the Churchwardens parties to the proceedings. He noted that the Petitioner had accepted liability for the faculty fees, but not for the costs of the undertaker in the works that had been authorised. In addition, he was minded to require the PCC of St Andrew Horbling to pay or make a contribution to these costs but will not do so until the PCC and in particular the churchwarden Dr Bunker, have an opportunity to make any submissions, and the undertakers have provided a bill of costs for the works [14].

He further directed the Rural Dean, who had already been involved in this matter, to investigate this issue so that he was reassured “that the churchwarden’s responsibilities under Canon E1 are fully understood by those that serve in this office at St Andrew’s” [16].  [Re St. Andrew Horbling [2022] ECC Lin 2] [Post] [Top of section] [Top of post]


Churchyards and burials

Development of churchyard

Re St. Michael and All Angels Foulridge [2022] ECC Bla 1 In March 2021, a faculty was granted for inter alia the sale of a piece of surplus land adjoining the church was to be sold, together with a piece of land owned by the diocese, to a housing developer who proposed building nine houses [1]. In September 2021, a further faculty application was made for permission to create a temporary compound for the developer on part of the churchyard where there were no marked graves [4]. A parishioner objected to the proposal and became a party opponent. His main objection was that this would be an inappropriate and disrespectful use of part of the consecrated curtilage of the church set aside for burials [6,7].

Whilst expressing some sympathy for the objector’s point of view [23], the Chancellor considered that, subject to there being a sufficient need for the compound, and adequate safeguards being put in place to protect existing graves, it was appropriate to grant permission for a limited period of 18 months, subject to conditions requiring no part of the compound to be within 5 metres of any marked graves, and subject also to surface reinstatement works being carried out by the developer at the end of the development [25]. [Re St. Michael & All Angels Foulridge [2022] ECC Bla 1] [Top of section] [Top of post]

Churchyard Regulations

Re St. Michael Langtoft [2022] ECC Lin 1 The petition proposed the addition of three names said to have been omitted from the First World War Memorial in Langtoft [1],[2]. In his judgment, the Chancellor set out the criteria he would apply in this or any future similar application [8]:

(i)  If the name is recorded on another war memorial there will be a presumption that the decision was made by the family at the time for the name to be inscribed on that memorial, and that decision should be respected. If that other war memorial is within the diocese or close to it, the more difficult it will be to rebut the presumption.
(ii) If the name is not recorded on any war memorial, it is only when [the Chancellor is] satisfied on the balance of probabilities that there has been a mistake made at the time in omitting that name from the memorial under consideration that the application can be considered.

However in using the civil standard of proof, the Chancellor applied the approach of Lord Hoffman Re H (Minors) [1996] AC 563:

“When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability”.

He considered that making an allegation that a First World War memorial has failed for over 100 years to record a name that should be there, is a serious allegation given the sensitivity of these memorials both now and particularly at the time they were erected. This does not mean that [he] adopt a higher standard of proof than the civil standard, but hat in [his] consideration of any submission that a war memorial has had a name omitted from it in error for over 100 years, the evidence in support of that submission must be strong, before I will accede to it.

In the instant case, two of the names were recorded elsewhere. The third name was the same as one already on the war memorial, but alleged to be a different person. The Chancellor was not satisfied that the third name related to a different person from the one whose name was already on the memorial. He therefore decided not to grant a faculty authorising any of the names to be added to the memorial. [Re St. Michael Langtoft [2022] ECC Lin 1] [Top of section] [Top of post]

Re St. Margaret Northam [2022] ECC Exe 2 The petitioner applied for approval of a memorial stone for the grave of his father, a former builder and stonemason, with inscriptions on both sides of the stone: on the front, the names and dates of birth and death of the deceased and the word ‘Beloved’; and on the back a quotation from a poem by Rudyard Kipling (‘Till the master of all good workmen shall set us to work anew’) and an engraving of a trowel [1,2]. The PCC objected to inscriptions on both sides of the stone, saying that it would set a precedent.

The Team Rector and Rural Dean, was originally been happy with the proposal [4], which was supported and recommended by the DAC [5]. However, the PCC objected to the headstone on account of the inscription on both sides, and would be “out of keeping with St Margaret’s Church and churchyard which are Grade 1 listed” [6]. He subsequently objected after discussions with members of the PCC, and later suggested that the trowel was inappropriate, as it was a symbol of Freemasonry, which might offend some people” [7].

With regard to the approach that the Court should adopt, the Chancellor stated the matter had recently been clarified by the Court of Arches (which is the court of appeal in such matters) in the case of Re St. Giles Exhall [2021] EACC 1 [16]. He noted that in the instant case:

“[19]. The issues are in reality very narrow. There is no objection to the size or material of the stone, or to the inscriptions or lettering, save that it is suggested that the font used for the quotation should be smaller. The [Team Rector] objects to the depiction of a trowel on the grounds that it is a symbol of Freemasonry, but the PCC does not. The PCC objects to the inscription being on the rear of the stone, but the [Team Rector] does not”

The Chancellor determined that the design had artistic merit; that it would not establish a precedent, as there were already several stones in the churchyard with inscriptions on both sides; that the poem extract would look out of place on the front; and that the trowel was a symbol of the lifelong work of the deceased as a builder and stonemason, who had no connection with Freemasonry. He concluded:

“[16]. Drawing all of these matters together, I am persuaded that permission should be given for the memorial to [the Petitioner’s father] as proposed in the Petition. I consider that it readily meets the need ‘To honour the dead, to comfort the living and to inform posterity’”.

[Re St. Margaret Northam [2022] ECC Exe 2] [Top of section] [Top of post]


Designation of closed churchyard

See Privy Council Business.


Bells

Re All Saints Rotherham [2022] ECC She 8 The Minster Church of All Saints’ Rotherham has a ring of twelve bells tuned to C-sharp, with the heaviest, the tenor (No 12) weighing 34 cwt. At present, a major scale can only be rung on the eight heavier back bells, as the current No 2 is in F-sharp thereby precluding the use of the eight lighter front bells. Heavier bells place restrictions on those able to ring.

The proposal is to add an extra No 2 bell in G-natural to provide the missing semitone in the octave scale in the front eight bells, with the No 8 being rung as the “tenor”. This additional bell will enable the front lighter bells to be rung alone and to sound as a true octave when there are no suitable ringers available for the heavier bells.

The Chancellor granted a faculty for the additional bell, noting that although the church is Grade 1 listed, the proposed works would not affect the ancient structure or the architectural or the historical significance of the building [3]. The new bell can be accommodated in the existing frame with only slight adjustments to create a ring of thirteen [1]. [Re All Saints Rotherham [2021] ECC She 8] [Top of section] [Top of post]


Privy Council Business

16 February 2022

  • Burial Act 1853 (Notice): Order giving notice of the discontinuance of burials in: 1. Part closure of St Cyr’s Church Churchyard, Stonehouse, Gloucestershire; 2. Churchyard of St. Luke’s, Matfield, Kent; 3. St Mary Magdalene Churchyard, Bildeston, Suffolk; 4. St Peter and St Paul Rustington Parish Churchyard, Rustington, West Sussex.
  • Burial Act 1853 (Final) Order prohibiting further burials in: 1. Octagon Church Churchyard, Wisbech, Cambridgeshire; 2. Part closure of All Saints Churchyard, Lydalls Road, Didcot, Oxfordshire; 3. St John the Baptist Churchyard, Marldon, Devon; 4. Corley Parish Churchyard, Church Lane, Corley, Coventry, Warwickshire; 5. Churchyard of St. James’ Church, Thornes, Wakefield, West Yorkshire (formerly St James’ with Christ Church, Wakefield); 6. St John’s Church Churchyard, Skipton on Swale, Thirsk, North Yorkshire.
  • Burial Act 1855 Order giving notice of varying the Order dated 10th November 2021 concerning further burials in St Peter Churchyard, Blackley, Manchester.

CDM Decisions and Safeguarding

  • The Very Revd. Martyn Percy On 4 February 2022, statements were issued by the Diocese of Oxford and Christ Church.
  • The Revd Michael Todd Decision and Penalty, Bishop’s Disciplinary Tribunal, Diocese of Southwark, January 2022. [See post CDM Tribunal considers “liking” tweets, infra]
  • Church of England: Graham Gregory: Lessons Learnt Review. The independent “lessons learnt review” into the Church’s handling of allegations against the late Revd Graham Gregory across five dioceses; Gregory was sentenced to three years imprisonment in 2014, on two counts of non-recent indecent assault and was further convicted in 2018 of three non-recent indecent assaults.
  • The Reverend Julian Blakeley Decision and Penalty, Bishop’s Disciplinary Tribunal, Diocese of York, January 2022. “[7]. His conduct was unbecoming or inappropriate to the office and work of a clerk in Holy Orders within Section 8(1)(d) of the Clergy Discipline Measure 2003 in that in or around January 2011, during a telephone conversation with Person 1, he was insensitive by:
    (a) Adopting an aggressive tone; And by (b) Using the following words and/or phrases or words and/or phrases which were substantially similar …” .

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. The determinations made on Wednesday 15 December 2021 are summarized below, Those review on Thursday 27 January 2022 are not yet available.

  • Cathedral Church of Christ, Canterbury: Replacement of exterior Floodlights. Approved subject to conditions. 
  • Cathedral Church of St Peter in Exeter: To deliver the second phase of Exeter Cathedral’s 2020’s Vision – Investing in Our Welcome project. The proposals include: Installation of new service routes (infrastructure cabling/electrical and data services, heating); Reordering works in the Chapel of St James, Quire, Quire Aisles, the former Vestries and Cathedral Shop.

Decision To defer determination of the proposals for the vestry area behind the high altar; To defer determination of the installation of services to the upper room of St James’s chapel pending further details of and justification; To approve the other elements of the application, subject to conditions.

  • Cathedral Church of St Peter in Exeter. To deliver the first phase of Exeter Cathedral’s 2020’s Vision – Investing in Our Welcome project. The proposals include: The Cloister Gallery; Reordering and extending the Pearson Cloister Building; Re-roofing and reordering the former vestries to the south of the Quire. Approved subject to conditions. 
  • Cathedral Church of St Peter and the Holy and Indivisible Trinity, Gloucester. To relocate existing Lady Chapel furniture and replace it with a set of new furniture designed by the Cathedral Architect. Gloucester Cathedral is applying for permission to create a new altar, base for the Lancaut Font, candle stand and lectern for the Lady Chapel Sanctuary. Furniture approved s.t.c.; Application for a new font base refused.
  • Cathedral Church of St Martin, Leicester: Record, lift, store and relay of floor to St George’s Chapel. Approved s.t.c..

The next meeting of the CFCE is on Thursday 24 March 2022.


Links to other posts

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

General/Miscellaneous

[Top]


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, February (II)" in Law & Religion UK, 1 March 2022, https://lawandreligionuk.com/2022/03/01/ecclesiastical-court-judgments-february-ii/

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