Ecclesiastical court judgments – October (II)

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

Twelve consistory court judgments were circulated in October, and the six featured in the first part of the round-up all relate to Reordering, extensions and other building works and organs. This second part reviews the remaining six judgments which concern ExhumationChurchyards and burials and also CDM Decisions and Safeguarding, Reports from the Independent Reviewer, Privy Council Business, Visitations, and CFCE Determinations, as well as links to other posts relating to ecclesiastical law.


Exhumation

Re Springwood Cemetery Allerton [2022] ECC Liv 2 The petitioner sought the exhumation of the cremated remains of her late father, who died on 1 October 2015, and whose ashes were interred in a casket in consecrated ground at the Springwood cemetery in Allerton, Liverpool and their proposed re-interment at in a different grave in the same cemetery [1]. Before her father’s death in 2015, the Petitioner had found the task of looking after her parents too great. When her father died, the Petitioner, in distress and haste, had his ashes interred in plot 734 in the cemetery, which was a family grave of his wife’s relatives.

The Petitioner was under the impression following the funeral and coming into possession of the ashes that internment had to be arranged within a short period of time [5]. She subsequently felt she had made the wrong decision and purchased another plot 1425 close by, with a view to it becoming a family grave for the remains of both of her parents when her mother died. Her mother died in 2020, but her ashes had not yet been interred in plot 1425. There was in fact no further room in plot 734 for her ashes to be interred there [6,7].

The principles for exhumation and reburial had been set out by the Registrar, citing two lead judgments Re Blagdon Cemetery [2002] Fam 299 and Re Christ Church, Alsager [1999] Fam 142. In relation to family graves, the Chancellor cited Re Astwood Cemetery (Gormley) [2016] ECC Wor 1 and Re St Margaret’s Orford (Cyril Jones (deceased)) [2016] ECC Liv 4. He determined that that the circumstances were such as to justify the grant of a faculty to allow the exhumation of the petitioner’s father’s ashes and their re-interment in plot 1425 with his wife’s ashes. [Re Springwood Cemetery Allerton [2022] ECC Liv 2] [Top of section] [Top of post]

Re St. Mary the Virgin Stoneleigh [2022] ECC Cov 7 In 2000 the petitioner’s mother died and, in accordance with a wish expressed in her will, her body was interred in a double-depth grave in Stoneleigh churchyard. In 2021 the petitioner’s mother’s partner died and his body was interred, in accordance with a wish in his own will, in the same grave. The petitioner now applied for her mother’s partner’s body to be exhumed and reinterred elsewhere, so that the petitioner could be buried in the same grave as her mother in due course.

The reason given for the proposal by the petitioner (but without supporting evidence) was that by 2000 the relationship between her mother and her mother’s partner had ‘just about ceased’ and there had been an understanding that the petitioner would be buried with her mother. The Chancellor determined that there had been nothing unlawful in the burial of the partner and the petitioner had shown no exceptional circumstances to justify an exhumation. [Re St. Mary the Virgin Stoneleigh [2022] ECC Cov 7] [Top of section] [Top of post]


Churchyards and burials

Designation of closed churchyard

See Privy Council Business

Churchyard Regulations

Re St. Leonard Old Langho [2022] ECC Bla 4 The Grade I church of St. Leonard, Old Langho is closed and vested in the Churches Conservation Trust, but the churchyard remains the responsibility of the Parochial Church Council [1]. The vicar of the parish in which the church lies applied for a retrospective faculty to authorize the retention of two benches placed in the churchyard by persons unknown without the authority of a faculty or List B approval under the Faculty Jurisdiction Rules [2].

However, whilst rule 3 (3) of, and Schedule 1 to the Faculty Jurisdiction Rules 2015 (as amended), permit the introduction and removal of benches in a churchyard without a faculty (List B 6 (1): (a)), retrospective approval under List B is not possible. Consequently, full faculty permission is required for the two benches in question [3].

Citing Re St Mary the Virgin Churchyard, Burghfield [2012] PTSR 593 and Re St. Edmund Kessingland [2020] ECC Nor 4, the Chancellor stated that the PCC could have petitioned the court for the removal of these two benches; but for pastoral reasons they had not done so. After expressing his concerns in the approach chosen by the PCC [9, 10], the Chancellor granted a faculty, but stated that in future he would “expect any PCC to petition for the removal of any unauthorized benches which they may find within their churchyard, leaving it to the person or persons who placed each bench there to petition for its retention, and to justify their conduct in having proceeded without prior lawful authority” [11]. [Re St. Leonard Old Langho [2022] ECC Bla 4] [Top of section] [Top of post]

Re St. Peter Bourton-on-Dunsmore [2022] ECC Cov 6 After the death of Mr. John Parnaby, his mother commissioned a memorial and was reimbursed the cost from Mr. Parnaby’s estate. The Petitioner, Ms Basia Kurzweil sought permission for the addition of further text to an upright memorial stone commemorating John Mark Parnaby and the re-fixing of the headstone to a new foundation; she was Mr Parnaby’s life partner for a period of about 25 years and was the principal beneficiary of his estate. However, this was without any consultation with the Parnaby family, owing to a rift [1].

The headstone had been commissioned and paid for by Lilian Parnaby, Mr Parnaby’s Mother, so under the Ecclesiastical Jurisdiction and Care of Churches Measure 2018 it would appear prima facie the she is the lawful owner of the memorial. However, she had been reimbursed in full from Mr Parnaby’s estate for the cost of the headstone; Ms Kurzweil asserted, therefore that the memorial therefore belongs to Mr Parnaby’s estate and, as a principal beneficiary of his estate, she suggested she is permitted to have additional wording added to the headstone without the consent of other members of his family. I am not convinced that assertion is correct. Ch. Samuel indicated was unconvinced by this assertion [2].

Furthermore, the purported permission for the memorial was on the basis of a conversation with the churchwarden, an error which should have been apparent to the monumental mason [4]; likewise the churchwarden’s unauthorized approval for a double depth grave [9].

The Chancellor observed that the objections to the amendment proposed were based principally, but not exclusively, on what occurred when the late Mr Parnaby died in 2018, and the subsequent family disputes [11]. The PCC raised no objection to the new wording on the headstone [12], and the DAC issued a notification of advice certificate of no objection for the proposed additional wording. However, the members of the Committee did specify that, in their collective opinion, the abbreviation JCK should not be used and instead the Polish words for “I love you’” should be spelled out in full [13].  On this point, the Chancellor obsesrved:

“[17]. …If I were to permit the proposed inscription (i.e. JCK) I would direct that the full expression be used and that a verified copy of a translation be kept with the church records (see Re St. Giles Exhall [2021] EACC 1, particularly paragraph 11.11).”

The Chancellor refused to grant a faculty, on the basis that, as stated by the Chancellor in the judgment in Re St. Giles Sheldon [2022] ECC Bir 1, ” … the Anglican teaching concerning graves is that they should not be a focus for discord and should not be disturbed unless there is clear reason that should happen”. [Re St. Peter Bourton-on-Dunsmore [2022] ECC Cov 6] [Top of section] [Top of post]

Re St. Mary Middleton [2022] ECC Lee 3 This Private Petition sought retrospective permission to erect a non-conforming memorial in churchyard and also permission to add an additional inscription. Dep. Ch. prefaced his decision:

[1]. …The bereaved family cannot be faulted there as it seems the Church leadership incorrectly advised them about whether formal permission was required. In fact it seems that through almost the whole history of this particular grave the family have been misinformed, by both lay officers and clergy, about whether there existed any correct procedures that needed to be followed.

I mention that from the outset because that is one of the principal reasons I am going to authorize a faculty that ordinarily would have been refused for a number of reasons. I do not want it thought that I am setting a precedent in what will be permitted in the very particular circumstances of this pastorally sensitive case. Indeed, it has been acknowledged that there have been such failures in dealing with this bereaved family that the cost of this faculty will be met by the Diocese instead of being charged to the family.

A baby had died two days old in 2014, and a memorial with kerbs and chippings had been erected on his grave without the authority of a faculty or even the approval of a priest. Prior to installation of the memorial, the petitioner had been told by a churchwarden (during an interregnum) that there were no restrictions on the type of memorial she could have. In 2022 the child’s mother petitioned for retrospective permission for the memorial and for a further inscription to be added in respect of her father. [Re St. Mary Middleton [2022] ECC Lee 3] [Top of section] [Top of post]

Re St. John the Evangelist Staincross [2022] ECC Lee 4 This Private Petition sought permission of the installation of a memorial for the grave of a child who had died at the age of 6. The PCC opposed the petition,  principally because it included a request for kerbstones with a stone slab and stone chippings within the kerbs, and the chosen stone was dark grey granite, honed not polished [2,3]. However, there were other memorials with kerbstones that had been installed without permission some years ago [4]. Questions were also raised as the petitioners were insisting on the use of a metal American casket, which was larger than a usual coffin. However, at a meeting involving the petitioner, the funeral directors and representatives of the Parish, it was determined that this could be accommodated [4, 5]

After consultation with the Archdeacon, the Deputy Chancellor determined  to grant a faculty for the stone and kerbs, provided that there would be no slab and no chippings. There were already several graves with kerbstones in the churchyard, and the memorial proposed would be in the far corner of the churchyard, where it would only be seen by people visiting that area. [Re St. John the Evangelist Staincross [2022] ECC Lee 4] [Top of section] [Top of post]

Environmental Permit

PCC of Astley Abbotts: environmental permit application advertisement, WV16 4SW. The Environment Agency has received a new bespoke application for an environmental permit under the Environmental Permitting (England and Wales) Regulations 2016, (3 October 2022). Application number: EPR/YB3595VL/A001; Grid reference: SO 70863 96220. This is for the discharge of 0.15 cubic metres per day to groundwater via non-BS6297 infiltration system via a trench arch system.

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Privy Council Business

12 October 2022

  • Burial Act 1853 (Notice): Order giving notice of the discontinuance of burials in: All Saints Church Churchyard, Beckingham, Doncaster, South Yorkshire; St Mary’s Church Churchyard, Rickinghall Superior, Suffolk; St Mark’s Church Churchyard, Eldon, Bishop Auckland, County Durham; St John the Baptist & St Helen Churchyard, Wroughton, Swindon; and  St Mary and All Saints Church Churchyard, Stoughton, Leicester, Leicestershire.
  • Burial Act 1853 (Final) Order prohibiting further burials in: Becconsall Old Church Churchyard, Hesketh Bank, Preston, Lancashire; Holy Trinity Churchyard, Thorpe Hesley, Rotherham, Yorkshire; St James’s Churchyard, Biddenham, Bedfordshire; St John the Baptist Church Churchyard, Great Gaddesden, Hemel Hempstead  Hertfordshire; All Saints Parish Church Churchyard, Headley, Bordon, Hampshire; Cheveley Churchyard Extension, St Mary & The Holy Host of Heaven, Cheveley, Cambridgeshire (also known as The Old Cemetery; St Chad’s Church Churchyard, Draycott, Derbyshire; St Peter’s Churchyard, Frimley, Surrey.
  • Burial Act 1855 (Variation). Order varying an Order dated 20th March 1857 prohibiting further burials in All Saints Churchyard, Pontefract, West Yorkshire (referred to in the 1857 Order as “the old parish churchyard”).

His Majesty, in the exercise of His powers under section 1 of the Burial Act 1855, by and with the advice of His Privy Council, is pleased to order as follows:—

Notwithstanding anything in the Order in Council made under the Burial Act 1853 on 20th March 1857, directing the discontinuance of burials in All Saints Churchyard, Pontefract, West Yorkshire (referred to in the 1857 Order as “the old parish churchyard”), the burial may be allowed of the unknown human remains from the 1340’s to 1390’s [sic] exhumed from the former St Richard’s Dominican Friary in the then disused site of Pontefract General Infirmary, within the burial ground of All Saints Churchyard, Pontefract, West Yorkshire.”

[This Order refers to the case of Re All Saints Pontefract [2022] ECC Lee 6 to be reviewed in the consistory court round-up]

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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 8 September 2022. Extracts from the determinations in March, May and July were included in the September round-up of ecclesiastical decisions. Decisions from the meeting on Thursday 8 September 2022 are not yet available,

The next meeting of the CFCE is on Thursday 3 November 2022.

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Links to other posts

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

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 – October (II)" in Law & Religion UK, 1 November 2022, https://lawandreligionuk.com/2022/11/01/ecclesiastical-court-judgments-october-ii-2/

 

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