Ecclesiastical court judgments – November (II)

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

Seventeen consistory court judgments were circulated in November, and the eight featured in this first part of the round-up all relate to Reordering, extensions and other building works. This second part reviews the remaining nine judgments which concern Flags, Organs, Exhumation and Churchyards and burials. Also CDM Decisions and Safeguarding, Privy Council Business, and CFCE Determinations, as well as links to other posts relating to ecclesiastical law.

Flags

Re All Saints Helmsley [2022] ECC Yor 2 During the recent vacancy, the Churchwardens sought permission for the movement of four flags. The Church Buildings Advisor summarized the present position:

“[8]. “There are four flags, three British Legion and one regimental. There was already a flag holder in the north wall of the chancel, directly behind the arch, for the regimental flag. There weren’t however, mounts for the three British Legion flags. Therefore, four new mounts were commissioned and paid for by a benefactor that were matching and two were mounted either side of the chancel.

Collier Ch. summarized the current position:

“[21]. In 2019 I was asked to authorize the hanging of two British Legion flags above the war memorial in the chancel of this church. The proposal which had the unanimous support of the PCC was recommended by the DAC. There was no objection to the proposal. I directed that a faculty issue.

Some two years later and after the disruption caused by the pandemic the two flags were installed and two more were installed on the opposite side of the chancel. The PCC now wish to remove the two which were unlawfully installed, returning one of them (the regimental flag) to its original position immediately behind the chancel arch above the war memorial”.

[23]….This petition does not concern two of the flags which either have been or will be lawfully installed in accordance with the 2019 faculty; it relates to the other two. There is agreement on all sides that those two should be removed and also that the regimental flag should be replaced in its original position behind the chancel arch.

[24]. [The] suggestion that the flag should be hung ‘almost vertically’ is contrary to the advice of the DAC that they really need to be hung horizontally to stop them deteriorating. What may in the future be significant is his view that these lawfully installed flags are an intrusion into the worship space.

[25]. [One of those sending a letter of objection] is now a member of the PCC. [They] can raise the issue about these lawful British Legion flags with the PCC; and if there is substantial support for [their[ views, as [they suggest] there is, then a proposal can be made to remove them”.

[Re All Saints Helmsley [2022] ECC Yor 2] [Top of section] [Top of post]

Exhumation

Re All Saints Pontefract [2022] ECC Lee 6 The churchyard of All Saints Church had been closed for further burials by an Order in Council in 1857. In 2011 the site of a 14th century Dominican Friary within the grounds of a local hospital had been excavated, and the human remains of two people had been found. A licence granted by the Secretary of State to Pontefract and District Archaeological Society (‘PDAS’) permitted exhumation of the remains and reinterment by a certain dated in a place where burials could lawfully take place.

Without any permission being sought through the then incumbent and without his knowledge, the remains were reinterred in All Saints churchyard in 2015 at a very brief ceremony attended by a deacon of All Saints, who approved the interment (he later died), a Roman Catholic priest and a representative of PDAS. In view of the Order in Council, the burial was unlawful.

The illegality came to light when PDAS approached the present incumbent for permission for a stone to mark the interments. The fact that the burial was unlawful was resolved by a successful application to the Privy Council for an amendment to the 1857 Order in Council, so as to permit an exception allowing the interment in the churchyard of the human remains recovered from the site of the former Friary, and by the Deputy Chancellor granting a confirmatory faculty for the interments. [Re All Saints Pontefract [2022] ECC Lee 6] [Post] [Top of section] [Top of post]

Re Hemsworth Cemetery [2022] ECC Lee 7 The petitioner wished to have the cremated remains of her late husband, who died in 2014, exhumed and reinterred in the same cemetery in a plot where her own ashes could also be interred in due course. The petitioner admitted that in 2014 she could have reserved a plot next to her husband’s plot, but decided at the time not to do so [2]. The Deputy Chancellor cited the judgments in Re Christ Church Alsager [1998] 3 WLR 1394 and Re Blagdon Cemetery [2002] Fam 299; he noted:

“[12]. In this matter the circumstances are quite similar to those in Alsager, where both the petitioner and her late husband would be interred only a short distance, apart in the same consecrated cemetery. There it was considered inappropriate to permit exhumation and reburial approximately 90 paces away so a married couple could be reunited in death.

Of particular note the Petitioner concedes that she had the option to reserve a plot for herself beside her late husband’s interment plot in 2014, approximately eight to nine months after his sad demise. She chose then not to seek such a reservation. Now she has changed her mind and wants to move his remains to what she considers a nicer plot.

The Deputy Chancellor determined that there were no special circumstances to override the normal presumption of the permanence of burial, and he therefore declined to grant a faculty. [Re Hemsworth Cemetery [2022] ECC Lee 7] [Top of section] [Top of post]

Re St. Bartholomew Arborfield [2022] ECC Oxf 7 The petitioners, who lived in Lincolnshire, wished to exhume from the churchyard of St. Bartholomew Arborfield in Oxfordshire the cremated remains of their son and only child, who died aged 6 from leukaemia in 1981. They wished to reinter his remains in a new family grave in the churchyard of All Saints North Cave in the Diocese of York, where many of his mother’s relatives were already buried and where the petitioners wished their remains to be buried. The Chancellor granted a faculty. He considered that special circumstances existed which constituted good and proper reasons for making an exception to the normal rule that Christian burial was final, including inter alia the absence of any connection between the child and Arborfield; the petitioners having had no settled home at the time of their son’s death; the intense grief of the petitioners at his death and the pressure to have his remains interred as soon as possible; and the desire to create a family grave. [Re St. Bartholomew Arborfield [2022] ECC Oxf 7] [Top of section] [Top of post]

Re St. Andrew Cherry Hinton [2022] ECC Ely 6 The petitioner was 18 when her brother committed suicide in 1988. At that time the Roman Catholic Church, of which the family were members, would not perform the burial, and so the deceased was buried in the churchyard of the Anglican church in Cherry Hinton. The petitioner was so aggrieved, emotionally and psychologically, by her brother’s death that she had never been able to visit his grave, though her mother had visited it.

Following her mother’s death, the petitioner did not wish her mother to be buried in Cherry Hinton, but wished to have her buried in a cemetery in a triple-depth grave where the exhumed remains of her brother could be reinterred by a Roman Catholic priest, who was willing to perform the reinterment, and where the petitioner could be buried in due course.

“[7] She found a family burial plot at GreenAcres Kemnal Park, South  East  London,  which  describes  itself  as  “a  unique  cemetery  and  ceremonial park…serving the members of all faiths and communities.”  The ground is not consecrated but EL’s parish priest, in these more  enlightened times, has agreed that he will bury EL and, if the faculty is  granted, the deceased using the full Catholic Rites”.

For the reasons stated in his judgment, the Chancellor was satisfied that there were special circumstances which constituted a good and proper reason for making an exception to the norm that Christian burial is final, and he therefore granted a faculty. [Re St. Andrew Cherry Hinton [2022] ECC Ely 6] [Top of section] [Top of post]

Churchyards and burials

Development of churchyard

Re St. Mary Ditchingham [2022] ECC Nor 2 The petitioners wished to re-lay and level the churchyard path using hot bitumen and gravel, in order to make the path less hazardous, and to provide a disabled car parking space within the church car park using tarmacadam [1]. This is a preliminary judgment containing directions for the petitioners and party opponent to make further submissions before a final decision by the Chancellor, infra. The views of the party opponent are reviewed in [5] to [16]. The Sufficiency of Interest of the Party Opponent under Rule 10 FJR was addressed in [17] to [30] on which the Etherington Ch  determined that Mr Morland could be  admitted to the proceedings as  Party Opponent [31] to [33]. Further directions were given in relation to Disposal by Written Representations [34, 35] and mode of disposal [36] to [39]. [Re St. Mary Ditchingham [2022] ECC Nor 2] [Top of section] [Top of post]

Re St. Mary Ditchingham [2022] ECC Nor 3 Further to Re St. Mary Ditchingham [2022] ECC Nor 2 supra, The Chancellor determined that the proposed works were not inappropriate and he granted a faculty. [Re St. Mary Ditchingham [2022] ECC Nor 3] [Top of section] [Top of post]

Designation of closed churchyard

See CDM Decisions and Safeguarding

Churchyard Regulations

Re St. Paul Shadwell [2022] ECC Lee 8 The petitioner sought retrospective permission for the introduction of concrete kerbs and pebbles to the grave of her parents. The kerbs and pebbles had been installed by the family without permission and without involvement of any funeral director or monumental mason.

The PCC objected to the kerbs and pebbles, which fell outside the churchyards regulations and would give rise to maintenance problems. Although the petitioner pointed out that there were already a few graves with kerbs in the churchyard, the PCC stated that no kerbs had been installed in the churchyard for at least 60 years, and the PCC did not wish a new precedent to be created by allowing the kerbs and pebbles to remain. The Deputy Chancellor refused to grant a confirmatory faculty and ordered that the kerbs and pebbles should be removed. [Re St. Paul Shadwell [2022] ECC Lee 8] [Top of section] [Top of post]

Re St. Leonard Minety [2022] ECC Bri 4 The petitioners wished to amend the Churchyards Regulations in relation to the parish of Minety only. The proposal was to replace Regulation 8, which provides inter alia for interments to be marked by memorials laid horizontal just below the level of the surrounding turf, with a new Regulation 8 including authority for the incumbent to give permission for an upright memorial (but not a cross) in the area set aside for cremated remains where cremated remains are interred next to the adjacent wall.

Gau Ch. explained:

“[5]. The parish is in an interregnum, which would mean that I would not normally consider a petition. I am informed however that a number of families currently wish to place memorials in the area to the above specification. They, understandably, are concerned that what had been the usual and acceptable form of memorialization which they had observed for more than 30 years and which had been acceptable to the PCC and the Maintenance Coordinator has now been changed by a Diocese-wide directive. The scope for pastoral problems is obvious”.

He granted a faculty. [Re St. Leonard Minety [2022] ECC Bri 4] [Top of section] [Top of post]


Organs

Re St. Laurence Combe [2022] ECC Oxf 5  The petitioners proposed a minor re-ordering of the west end of this Grade I listed, late-C 14th village church to create a more flexible space by removing a redundant 1960 pipe organ (installed in 1994) and up to eight pews, replacing them with chairs, and disposing of several items of redundant church furniture. The parish consider that these changes are necessary to create an open space at the rear of the church, with movable lightweight seating, which would afford space for families during, and enable members of the congregation to mingle freely after, services, thereby advancing the church’s worship and mission. The exterior of the church building will remain entirely unchanged [1]. The PCC approved the proposed, nine to one with one abstention [3], which was recommended by the DAC subject to provisos [8]. There were five objectors to the public notices, but none became parties opponent [13] to [15].

In applying the tests in Re St. Alkmund, Duffield [2013] Fam 158, the Chancellor noted that following Re St Chad, Longsdon [2019] ECC Lic 5 (at [11]) and Re St Peter & St Paul, Aston Rowant[2019] ECC Oxf 3, a practice had developed of inquiring whether the same, or similar, benefits could be achieved in a manner less harmful to the heritage value of the particular church building concerned [18]. The issues raised by the objectors were summarized [20] to [21], and the petitioners’ response [22] to [23], The Chancellor was satisfied that the petitioners had made a convincing justification for the proposals and he accordingly granted a faculty. [Re St. Laurence Combe [2022] ECC Oxf 5] [Top of section] [Top of post]


Privy Council Business

9 November 2022

Seven Proclamations were issued, including:

  • Appointing Monday 8th May 2023 as a bank holiday in England, Wales and Northern Ireland to commemorate His Majesty’s Coronation;
  • Appointing Monday 8th May 2023 as a bank holiday in Scotland to commemorate His Majesty’s Coronation. ;

Also:

  • Burial Act 1853 (Notice): Order giving notice of the discontinuance of burials in: St John the Evangelist Church Churchyard, Goldenhill, Stoke on Trent, Staffordshire; and  St Michaels Churchyard, Stoke Gifford, Bristol.

The exceptions are that in St Michaels Churchyard, in any existing earthen grave in the churchyard, the burial may be allowed of the body of any member of the family of the person or persons previously buried in that grave, but no part of the coffin containing the body shall be less than one metre below the level of the surface of the ground adjoining the grave.


CDM Decisions and Safeguarding


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

The next meeting of the CFCE is on Wednesday 14 December 2022.


Links to other posts

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

Heating

Churchyards

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 – November (II)" in Law & Religion UK, 1 December 2022, https://lawandreligionuk.com/2022/12/01/ecclesiastical-court-judgments-november-ii-2/

 

 

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