Ecclesiastical court judgments – August

Review of the ecclesiastical court judgments during August 2022

A total of seven consistory court judgments were circulated in August, and these relate to Reordering, extensions and other building worksExhumationChurchyards and burials Church Treasures/Sale of Paintings/Loans/Memorials and Bells. This summary also includes CDM Decisions and Safeguarding, Reports from the Independent Reviewer, Privy Council Business, Visitations, Advertising Standards Authority rulings, and CFCE Determinations, as well as links to other posts relating to ecclesiastical law.

Update 31 August 2022

A copy of the judgment Re St. Peter Dorchester was received shortly before this round-up was posted; a faculty was granted for the movement of a memorial to Dr John Gordon from inside the church to the County Museum, and the installation of a replacement memorial in the church. The Chancellor noted that this case “raises difficult questions of what has been called ‘contested heritage’” [3]. The summary by the Ecclesiastical Law Association is reproduced below, and a fuller analysis of the judgment will be provided in a future stand-alone post.


Reordering, extensions and other building works

Re St. John the Evangelist Blackpool [2022] ECC Bla 2 

This was an unopposed petition determined on the papers and without a hearing. Objections were received from the Church Buildings Council and the Victorian Society but neither  elected to become a party opponent [1]. Photographs of the church are reproduced at the end of the judgment, pp 21-28. The proposed programme of reordering was to facilitate the use of the church as a “Resource Church” capable of reversing church decline in Blackpool, with an emphasis on encouraging young people to attend the church.

The previous renovations in 2005 added multiple facilities to the church building but also reduced the service capacity from 1200 to only 120. The proposed changes will increased the capacity to approximately 300 on a regular basis and to 450 for one-off events [10].

The Chancellor was satisfied that, far from causing harm to the significance of the church, the proposals would enhance the setting, and any harm would be outweighed by public benefits [31]. The Chancellor granted a faculty for all the proposals, with the exception of the lectern, deferring a decision on that item until the reordering of the war memorial chapel was completed, in case the lectern could conveniently be accommodated there [39, 40].

[Re St. John the Evangelist Blackpool [2022] ECC Bla 2 ] [Top of section] [Top of post]


Church Treasures/Sale of Paintings/Loans/Memorials

Re St. Peter Dorchester [2022] ECC Sal 4 “The Vicar and Churchwardens wished to move a memorial from inside the church to the County Museum next door to the church and erect a replacement memorial in the church. The reasons for the proposal were, firstly, concern that, in the current social climate, the wording of the original memorial might offend some visitors to the church, as it referred to the person commemorated – John Gordon, a plantation overseer (and later owner) in Jamaica – who repulsed a rebellion of ‘a large body of negroes’ in Jamaica in 1760; secondly, that the continued presence of the memorial in the church would be harmful to the mission and message of today’s church. Some consultees favoured removal of the memorial, some favoured retention with interpretative material. The Chancellor determined that in this case the public benefit to be derived from the removal of the memorial, subject to its replacement with a memorial omitting details which might cause offence, would outweigh the harm caused”. [In the Matter of Dorchester, St Peter, Holy Trinity and All Saints, [2022] ECC Sal 4] [Top of post]

Also, see Re St. James Church Kirk.


Exhumation

Other

Re City of London Cemetery [2022] ECC Chd 3 The petitioner, the son of a Ghanaian, sought a faculty to authorize the exhumation of his father’s remains, with a view to the remains being re-interred in a grave in his father’s home town in Ghana [3]. The deceased, who died at the age of 98, had during his lifetime expressed a wish to be buried in his home town. However, he died suddenly from COVID-19 in 2020, and owing to COVID restrictions the family had been advised that expeditious burial in a sealed, zinc-lined coffin was advised, and transfer to Ghana was then impossible [9].

he family was advised that it was necessary for him to be buried expeditiously in a sealed coffin. The African-Caribbean Funeral Services (ACFS) also advised that it would make exhumation and repatriation easier if the family chose a zinc-lined coffin for his remains, which they duly did. In addition, and again on AFCS’ advice, the deceased’s coffin was buried not in the ground but in a (more expensive) catacomb: the Cemetery is unusual in having this facility [11].

Citing Re Blagdon Cemetery [2002] Fam 29 and the decision of Quentin Edwards Q.C. in Re Church Norton Churchyard [1989] Fam. 37, the Chancellor took a number of factors specific to the case into account [19], and decided that, in the unusual circumstances of this case, the petitioner had demonstrated exceptional circumstances to displace the normal presumption that burial in consecrated ground is final, and she therefore granted a faculty subject to conditions [21]. [Re City of London Cemetery [2022] ECC Chd 3] [Top of section] [Top of post]


Churchyards and burials

Churchyard Regulations

Re St. Peter & St. Paul Shorne [2022] ECC Roc 1 The petitioner sought to add an inscription and an etching of the HMS Newcastle to the memorial of her mother (who died in 2016), following the interment of her father in the same grave in 2020; also to introduce a kerbset and chippings around the grave [4, 8]. Aside from the proposed inscription and engraving, to be agreed between the Petitioner and the Incumbent [12], the only contentious part of the faculty concerned the introduction of kerbs and chippings [13]. The Chancellor stated that “the central question must be to the effect why should the Churchyard Regulations be circumvented” [17], and concluded:

“[20]. … to allow this application which would involve my approving an exception to the Regulations would, in my judgement, inevitably lead to an undesirable situation and precedent being created which, in reality, would make it impossible for the Incumbent and/or PCC not merely to have the present unlawfully positioned kerbstones removed, but also in the future to stop anyone else from introducing them.”

He granted a faculty for the inscription (with minor amendments) and the etching, but not for the kerbs. The fact that some kerbs had been place unlawfully in the churchyard did not justify allowing further kerbs. [Re St. Peter & St. Paul Shorne [2022] ECC Roc 1] [Top of section] [Top of post]

Re St. Nicholas Tackley [2022] ECC Oxf 4 The Commonwealth War Graves Commission sought permission to erect a standard off-white, Portland stone Commonwealth War Graves Commission memorial in the churchyard of this Grade II* listed village church commemorating Private William Sydney Walker who was murdered whilst on active service with the British Army in County Galway, Ireland in 1921 and was buried in the churchyard on 26 February 1921. The precise location of his burial within the churchyard is not known, and consequently a faculty is required as the regulation 13 of the diocesan Churchyard Regulations provides that “a monument may be introduced only at the place where the body of the person to be commemorated by the monument is buried”. [1].

The Rector and Parochial Church Council were concerned that the installation of a memorial to a soldier who died during the Anglo-Irish war in 1921 might give rise to social ‘sensitivities’ . He noted:

“[5]. In a rural community where our church tries to be a model of ecumenism and where we have Catholics of Irish descent in regular attendance, and even a Catholic priest as part of our worshiping community, there is a concern that an official memorial to the Anglo-Irish war in the form of a commemoration to an English soldier could be felt as an act of exclusion”

Ultimately, the PCC felt unable to make a decision on the matter on the issues raised; likewise, the DAC “… recognized that there are sensitivities concerning the Anglo-Irish conflict in which the commemorated soldier died, and that the DAC has no remit for consideration of pastoral issues”.

Citing with approval Re St Giles, Exhall [2021] EACC 1 [14, 15] and Re All Saints, Honington [2017] ECC SEI 3 [16], the Chancellor indicated that In the present case, he was satisfied that the Commission had shown a sufficiently good reason to introduce their proposed memorial to Private Walker into the churchyard, even though the precise location of his grave is not known, so that the memorial cannot be introduced at the place where his body is buried [17]. Whilst he appreciated the sensitive response of the Rector and the PCC to this proposal, in his judgment it could not possibly offend any open-minded and right-thinking member of the church congregation or the local community, or any visitor to the churchyard, whatever their nationality or any religious faith.

He was satisfied that this is so even though the installation of a standard Commission war grave memorial may convey some impression of official sanction or endorsement of Private Walker’s life, and of his death, since: specifically, the proposed memorial contains no mention of Ireland at all [19]; and more generally, a war grave memorial commemorates an individual, and not the conflict in which the soldier served and died {20]..

He therefore determined that it was appropriate to allow a memorial to the deceased soldier, even though the exact location of his buried remains was not known. At the top of the memorial, the words “Buried elsewhere in this churchyard” would be inscribed. [Re St. Nicholas Tackley [2022] ECC Oxf 4] [Top of section] [Top of post]

Re St. James the Apostle Newchapel [2022] ECC Lic 7 The petitioners (mother and daughter) applied for permission for a memorial to the mother’s late husband. The parish priest and PCC objected to the use of the word “Dad”, the irregular shape of the memorial and the use of blue pearl granite with gold lettering [2,3]. The petitioners pointed out that there were several memorials in the churchyard with irregular shapes and the word ‘Dad’ was common on inscriptions [4].

The DAC having considered the objections from the incumbent and PCC expressed approval of the proposals of the family: “the Petitioners had provided evidence of precedents for such a memorial in the context of this particular churchyard, by way of a case for exceptionality in relation to the Regulations… the Committee determined…that the memorial would not adversely affect the specific churchyard setting. On the matter of the wording of the memorial, the DAC noted that the Regulations allow for “individuality and diversity”, and inscriptions which are even “quirky or eccentric” (p5 of the Churchyard Regulations).

The Committee did not find that there was anything specifically “which can be seen as inconsistent with the Church’s message” or that “flippancy and irreverence” (ibid.) were apparent … It was determined that as the proposal did not affect a building of special architectural or historic interest, external formal consultation under the Faculty Jurisdiction (Amendment) Rules 2019 is not applicable, and that the application should advance to the giving of DAC formal advice accordingly” [5].

The Deputy Chancellor noted “In this case, the irregular shape of the memorial appears elsewhere and nearby, and it could be harsh to deny the erection of a similar stone. Like considerations apply to its colour, lettering and the reference to “Dad”. It seems to me and I find that the proposed memorial would not jar visually or in sentiment in this graveyard and I accordingly will grant the faculty determined that it would be harsh to deny the erection of a similar stone” [7]. He therefore granted a faculty. [Re St. James the Apostle Newchapel [2022] ECC Lic 7] [Top of section] [Top of post]

Environmental Permit


Bells

Re St. James Church Kirk [2022] ECC Bla 3

This case is reviewed in Removal of bells from a closed church . It has also been summarized by the Ecclesiastical Law Association as:

“The petitioner, the Senior Church Buildings Officer for the Diocese of Blackburn, proposed the removal of the eight bells from the redundant church of St. James Church Kirk, and their re-installation in the church of St. Cuthbert Over Kellet. Church Kirk had been made redundant in 2016, since when it had been transferred to the Church Kirk Regeneration Trust for community use. Although there were nine objectors (none of whom became parties opponent), the Chancellor granted a faculty. He considered that the consistory court should favour a proposal that would “lead to bells being rung to signify the presence of a worshiping church in the community, and to invite local people to worship there, over one that does not”. [Re St. James Church Kirk [2022] ECC Bla 3] [Post] [Top of section] [Top of post]


Privy Council Business

The last Privy Council Meeting was held on 19 July 2022 and is reported here.


CDM Decisions and Safeguarding

Scottish Episcopal Church: Bishop of Aberdeen & Orkney

On 10 August 2022, it was announced that, after two formal complaints of alleged misconduct by the Rt Revd Anne Dyer, Bishop of Aberdeen & Orkney, the Primus had suspended her from office until further notice, following the commencement of a disciplinary process under Canon 54 of the Church’s Code of Canons.

The process was to be considered in the first instance by the Preliminary Proceedings Committee, the Bishop of Edinburgh was also to serve as Acting Bishop of the Diocese of Aberdeen & Orkney during her suspension, and the independent mediation process set up last October in response to difficulties experienced in her diocese was expected to be put on hold pending the outcome of the disciplinary process.

Later on the same day, however, it was announced that her suspension had been lifted with immediate effect after she gave notice of an appeal against the decision to the Episcopal Synod. It is expected that a meeting of the Episcopal Synod will be arranged as soon as possible.


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.


Advertising Standards Authority rulings

On 3 August 2022, the ASA reported that it had upheld complaints against two companies – Golden Leaves Ltd and JC Atkinson & Son Ltd. In both cases, these concerned an advertisement on the company’s website which “misleadingly implied that their medium-density fibreboard (MDF) coffins were more eco-friendly than other options, without sufficient evidence.


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 21 July 2022. The determinations on 24 March 202226 May 2022 are still not available, for which only “Form 8” is available.

The next meeting of the CFCE is on 8 September 2022.


Links to other posts

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

Bells

  • Removal of bells from a closed church. The cases of Re St James Church Kirk [2022] ECC Bla 3 which concerned a refurbished ring of eight bells at Over Kellet, for which the particular interest i lies in the requirements associated with making changes to a closed church, aspects of which still fall within the faculty jurisdiction. Also the earlier case  Re St James Church Kirk [2019] ECC Bla 4 which involved an initially interim loan of a much older but unringable bell from the same closed church to Lancashire Museum Services.

General/Miscellaneous

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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 – August" in Law & Religion UK, 31 August 2022, https://lawandreligionuk.com/2022/08/31/ecclesiastical-court-judgments-august-4/

 

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