Review of the ecclesiastical court judgments during September 2022 (II)
Ten consistory court judgments were circulated in September: the five featured in Part I included Reordering, extensions and other building works, and Church Treasures/Sale of Paintings/Loans/Memorials. This Part II includes Exhumation and Churchyards and burials, and also CDM Decisions and Safeguarding, Privy Council Business, and CFCE Determinations, as well as links to other posts relating to ecclesiastical law.
Re St. Andrew Netherton [2022] ECC Wor 5 The petitioners’ mother had arranged in 2015 for the interment of her husband’s ashes at St. Andrew Netherton, following a funeral at a nearby Roman Catholic Church [1]. The petitioners’ mother died in 2022, having previously expressed to the petitioners her wish for her cremated remains to be buried near to the graves of relatives in the cemetery at Burry Port in South Wales. She had also requested that her husband’s ashes should be moved to be buried with her ashes at Burry Port [2]. After reviewing the practical issues of exhumation and reinterment with the professionals involved [7] to [9], Humphreys Ch concluded:
“[10]. …the practical concerns can be properly met by the sensible actions proposed by the undertaker supported by the imposing of relevant conditions on any faculty granted. Therefore, they do not in themselves provide any reason to either grant or refuse the petition.”
Applying the tests set out in Re Blagdon Cemetery [2002] Fam 299 to the facts of this case, she stated:
“[12]. It has to be said that it is not particularly easy to find a clear path through the reported decisions of Chancellors who endeavour to balance the doctrine of the permanence of Christian burial with the understandable desires of petitioners in their various circumstances”.
Taking all the various factors of the case together, Humphreys Ch determined to grant a faculty to allow the petitioners’ father’s ashes to be buried with the ashes of his wife next to other family members whose remains were buried in the cemetery. [Re St. Andrew Netherton [2022] ECC Wor 5] [Top of section] [Top of post]
Re St. Margaret Stratton [2022] ECC Bri 2 The petitioner’s father was a Latvian. After release from a German prisoner of war camp, he had not been allowed to return to Latvia (then occupied by Russia), and so he had settled in England. He died in 1995 and his cremated remains were interred in the Lower Stratton Cemetery (owned by the Parish Council) next to St. Margaret’s Church. The petitioner’s mother died in 2022, and part of her cremated remains had been buried in the same plot as her husband’s. The petitioner wished to exhume the ashes of her father, so that part of his ashes could be interred with the retained portion of her mother’s ashes in Latvia. The Chancellor refused to grant a faculty: there was no evidence of the father’s desire to have his remains interred in Latvia, or any evidence that he wished his remains to be buried with his wife’s remains; there was no discussion at the time of his funeral about the possibility of moving his remains in the future; no enquiries had been made about the possibility of exhumation in the 27 years since he had died; there was no intention to create a family grave, but two separate graves; and no effort had been made to identify graves in Latvia. [Re St. Margaret Stratton [2022] ECC Bri 2] [Top of section] [Top of post]
Re St. Mary Stamfordham [2022] ECC New 3 By private petition, the petitioner sought to erect in the churchyard a memorial to his late wife [1]. The proposed stone was light grey granite, polished on its face. The only issue to which the PCC objected was the requested use of granite which “would offend against the Churchyard Rules and guidelines applicable to St Mary’s that sandstone only should be permitted for such memorials [4].
Local churchyard regulations provided for sandstone to be used, to blend in with the sandstone of the Grade I listed church, and in the area used for burials since 1947 the memorials were exclusively of sandstone [16(ii)]. In setting out the law [20] to [23], in addition to the Churchyard Regulations, the Chancellor cited Re St. Alban Frant [2021] ECC Chi 4, Re St Mary Magdalene, Lyminster [2017] ECC Chi 1 and Re St Mary Kingswinford [2001] 1 WLR. However, he noted:
“[25] The law reports are full of such exceptions and it is understandable that [the Petitioner] would wish me to consider an example but, in truth, beyond demonstrating the approach, they are not helpful in determining the specific issue here. The legal principles are the guide to the outcome as applied to the specific factual matrix presented by this petition in this particular location”.
In the final analysis, the court came to a clear view:
“[35]. …It notes and agrees with the reasoning of the PCC and the DAC. It is satisfied that the installation of a granite headstone would look out of place both in the immediate locality of the grave of the [Petitioner’s late wife] as well as more generally in the setting of this otherwise remarkably homogenous churchyard attached to a Grade I listed church. It has the capacity to upset others who denied themselves the chance to ask the court to use granite out of respect for the rules. It has the capacity to generate an expectation that, in the future, granite will be permitted”.
[Re St. Mary Stamfordham [2022] ECC New 3] [Top of section] [Top of post]
Re Holy Cross Moreton Morrell [2022] ECC Cov 5 On behalf of the PCC, the Priest in Change sought retrospective permission to allow a bench inside the churchyard to retain the ‘rainbow’ colouring to which it was re-painted from dark brown without permission in “the week commencing 28th June 2021″ [1]. The bench had been introduced into the churchyard to mark the Queen’s Golden Jubilee, and subsequently had been painted in rainbow colours, without consent, by a small group of people intending to show support for the National Health Service (NHS).
At a meeting of a churchyard working part on 26 June 2021, in the absence of the
P-i-C, a Churchwarden then purported to give permission for the bench to be painted in rainbow colours and that was undertaken sometime over the following seven days [3]. [Photo © Jonathan Thacker (cc-by-sa/2.0)]. The minutes of an extraordinary meeting to the PCC on 26 March 2022 indicate that it had agreed to pursue a retrospective faculty, but “that is clearly not correct as the minutes also record that [the P-i-C], as the chair of the meeting, abstained from voting” [4]. There is no indication that the members of the PCC had regard to the Coventry Churchyard regulations or any counter-arguments that could apply to introducing a multi-coloured item into an area still used as a focus for grieving. It could be argued that the counter issues the PCC should have debated are succinctly stated in one of the letters of objection [6], viz.
- It is inappropriate for mourners to be faced with an emotive symbol when respectful neutrality in such sacred surroundings is a reasonable sign of respect.
- The church grounds are available for all the parish to facilitate whatever form of worship or leisure each person desires and the imposition of a ‘mood tone’ of a multicoloured rainbow denies individuals this right.
- The rainbow has become a [political symbol that may cause concern to some
people who] should not be forced to condone the association of their parish with a particular viewpoint.
The Chancellor noted that these three points raise issues the Court must consider in permitting something so outside the norm for an open churchyard [6]. In addition
“[7]. … the Parochial Church Council should have considered is that the bench was donated specifically to honour the 2002 jubilee of HM Queen and bears a plaque clearly showing that connection. The reigning monarch is meant to remain apolitical, if at all possible, so it seems inappropriate that an item dedicated to our head of state should have been altered in a way that will to many be seen to have a political element.
The Chancellor referred to the Coventry Churchyard Regulations [10, 11], and concluded, stating:
[12]. …“I have to consider the legal situation regarding this bench and also the thoughts, feelings and emotions of all users of the churchyard, not just those who support the significant change that was carried out without permission. It seems to me that I must follow the situation that applied before this bench was repainted unless and until the petitioner(s) has (have) persuaded me there is good and sufficient reason to allow the change.
I have to state that I have not been so persuaded. For that reason, and for the other reasons expressed above, this faculty is refused. The bench must be re-painted or re-stained back to its original dark colour as soon as possible and in any event by 12th September 2022”.
[Re Holy Cross Moreton Morrell [2022] ECC Cov 5] [Post] [Top of section] [Top of post].
Re St. Mary de Wyche Wychbold [2022] ECC Wor 6 The petitioner wished to purchase and install at his own expense a new Second World War Memorial of the same design as, and to replace, the existing memorial plaque fixed to the wooden side of the lychgate at the churchyard. The plaque was made of moulded metal and it gave the name of the Petitioner’s cousin as “Pat Collins”. The petitioner stated, and produced evidence to show, that his cousin’s proper name was Kenneth Lawrence Collins (though his nickname was “Pat”) and that Kenneth had been the resident from Wychbold who had died in the Second World War. [2] to [4].
The War Memorials Trust (WMT) resisted the removal of the original plaque on the grounds that it “would result in complete loss of the original fabric of the memorial”. In their written consultation response of 22 June 2022, they “caution against the change of spellings on war memorials and usually require definitive evidence that an error has occurred otherwise there is a risk that a legitimate name will be altered or removed” [5].
Summers Dep. Ch. accepted in principle the concern of the WMT that names on war memorials should not be too readily altered, but considered that the petitioner had shown, on the balance of probabilities, that the soldier with the surname Collins who should be commemorated on the war memorial in Wychbold church is Kenneth Lawrence Collins and not Patrick Collins. He considered that a strong evidential case had been presented to this effect, and there was a substantial error on the face of the memorial. Accordingly that there were good prima facie reasons to approve its correction [13].
The Deputy Chancellor determined that, as the memorial was a public record, it ought to show the correct name. He therefore granted a faculty permitting an amendment to the existing memorial, if possible, failing which the memorial could be replaced with a replica showing the petitioner’s cousin’s name as “Kenneth L. Collins”. [Re St. Mary de Wyche Wychbold [2022] ECC Wor 6] [Top of section] [Top of post]
Parochial Church Council of St Bridget’s Church, Brigham, Cockermouth; Environmental permit application advertisement, CA13 0XH. (20 September 2022). The Environment Agency has received a new bespoke application for an environmental permit under the Environmental Permitting (England and Wales) Regulations 2016 from the Parochial Church Council of St Bridget’s. Application number EPR/YB3490RF/A001; Grid reference NY 08577 30921. This is for the discharge of 0.08 cubic metres per day to groundwater via a trench arch system.
CDM Decisions and Safeguarding
Scottish Episcopal Church
On 29 September 2022, the Episcopal Synod of the Scottish Episcopal Church met to consider the appeal by the Rt Rev Anne Dyer against her suspension as Bishop of Aberdeen & Orkney following the lodging of formal complaints of misconduct. The suspension had been set aside in August after notice of appeal was received and pending the outcome of the appeal to the Synod.
The Episcopal Synod refused the appeal by a majority of three to two; consequently, the suspension from office of the Bishop of Aberdeen & Orkney resumed with immediate effect until further notice, while the next stage of the process takes place. The suspension does not constitute disciplinary action and does not imply any assumption that misconduct has been committed.
The Rt Rev Dr John Armes, Bishop of Edinburgh, will serve as Acting Bishop of the Diocese of Aberdeen & Orkney during this suspension, and the Rt Rev Andrew Swift, Bishop of Brechin will serve as Acting Convener of the Institute Council. Both will continue to fulfil their existing duties in their own dioceses.
The complaints which have been received are being considered in the first instance by the Preliminary Proceedings Committee in accordance with Canon 54 of the Scottish Episcopal Church Code of Canons.
The Accession Council, 10 September 2022
- Part I
The Accession Proclamation
Eight Orders of Council - Part II
The King’s Declaration
The King’s Oath to uphold the Security of the Church of Scotland
Twelve Orders in Council
The Sovereign Grant
Two Bank Holiday Proclamations and Sealing Orders
List of those present at the Accession Council
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 8 September 2022. Extracts from the determinations in March, May and July are reproduced below
- Cathedral Church of St Philip, Birmingham: Conservation of four Burne-Jones windows E, nII, sII, W, including cleaning, remedial work, detailed conservation work and replacement of existing protective grilles. Approved the proposals for conservation including cleaning, remedial work, and detailed conservation work for the four windows. The Commission deferred determination on other proposed work.
- Cathedral Church of Christ, Canterbury: To make permanent the swapping of two stained glass panels within the Miracle Window nIII after their temporary changeover for the British Museum exhibition in 2021. To make several other amendments to the glazing to allow for a harmonious reading of the window. Approved.
- Cathedral Church of the Holy Trinity, Chichester: To install temporary cabins and grass protection as part of a seasonal Christmas Market from 25 November to 18 December 2022. Approved subject to conditions.
- Cathedral Church of Holy and Undivided Trinity, Ely: A scheme to improve the lighting in the nave, chancel, aisles and chapels using new fittings and LED lamps. The existing scheme dates from 1994 and while it was a carefully designed scheme at the time, it is now dated and some cases, unusable. Approved.
- Cathedral Church of St Peter in Exeter: The removal of the 20th Century sculptures from the Chapter House, their deaccessioning from the cathedral’s inventory, and their disposal. Approved subject to conditions.
- Cathedral Church of the Holy Spirit, Guildford: To develop the land on Stag Hill in the vicinity of the Cathedral for the purposes of providing and endowment for the Cathedral and affordable and private housing for the community. Approved subject to conditions.
- Cathedral of the Holy and Undivided Trinity of Norwich: To vary the condition 1 of the permission granted on 6th August 2021 for the loan of the Lyhart crosier to Norwich Castle Museum. Condition varied, subject to conditions.
- Cathedral Church of Christ and the Blessed Virgin Mary, Rochester: Installation, by Medway Council, of a second soakaway in the Precinct, Rochester. Approved subject to conditions.
- Cathedral Church of Christ and the Blessed Virgin Mary, Rochester: Replacement of the sound and vision installations within the cathedral. Approved subject to conditions.
- Cathedral Church of Christ and the Blessed Virgin Mary, Rochester: External paving repairs and improvements. Approved subject to conditions.
- Chapter of the Cathedral Church of York Minster: A ‘like for like’ repair of the historically significant tiled 1840’s Minton flooring to the Chapter House has been undertaken. Approved.
- The Cathedral Church of St Saviour and St Mary Overie, Southwark: The transfer of eight boxes of human skeletal material currently stored in the triforium cupboard to the Museum of London Centre for Osteoarchaeology, and one box of animal bone from the same excavations. Approved subject to condition “That prior to the removal of the skeletons from the cathedral, Chapter shall formally agree with the Museum of London a reasonable timeframe for the return of the skeletons to the cathedral for reinterment” -” to ensure that the remains are ultimately given a dignified reinterment”.
- The Cathedral Church of St Alban: To transport the collection of charters and a figure to the Hertford Archive studio for assessment only. Approved subject to conditions.
- Cathedral Church of Christ and the Blessed Mary the Virgin, Worcester: A programme of repairs to the damaged vaulting in the North Quire Aisle, retaining the vault in place. Approved subject to conditions.
- The Cathedral Church of Christ and the Blessed Virgin Mary, Chester: Design of glass as part of the installation of the Pilgrim Porch. Approved subject to conditions.
- Cathedral Church of Wells: Conservation works to the external clock. Approved subject to conditions.
- Cathedral Church of St Peter in Exeter: Conservation works to the sedilia. Approved.
- Cathedral Church of St Peter in Exeter: Conservation works to the Scott presbytery floor. Approved subject to conditions.
- Cathedral Church of the Blessed Virgin Mary of Lincoln: To install ramps, gates and railings to the Galilee porch. Approved subject to conditions.
- Cathedral Church of St Mary the Virgin and Saint Ethelbert the King, Hereford: To package and move 11 manuscripts which require professional and considered conservation. Approved subject to conditions.
The next meeting of the CFCE is on Thursday 3 November 2022.
Recent summaries of specific issues that have been considered in the consistory courts include:
General/Miscellaneous
- “Church treasures”: an unnecessary classification? (2 September 2022).
- “Contested heritage”: further considerations in Re Dorchester St Peter, (6 September 2022).
- Criminal damage to the Colston statue: AG’s reference, (28 September 2022).
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Notes on the conventions used for the navigation between cases reviewed in this post are summarized here.