Review of the ecclesiastical court judgments during January 2023

Seven consistory court judgments were circulated in January and these featured:

• Reordering, extensions and other building works;
• Church Treasures/Sale of Paintings/ Loans/ Memorials;
• Exhumation; and
• Churchyards and burials.

This summary also includes 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.

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Reordering, extensions and other building works

Other building works, including re-roofing

Re St. James Uldale [2022] ECC Car 5 The Grade II listed Church dates from the 12th century, albeit that significant work was carried out to it in the 18th, 19th and 20th centuries [3]. In recent years, two phases of work have been carried out to the main fabric of the Church building. A DAC Report, uploaded on 22 March 2022, records that the main fabric of the building is now in a good stable condition, although the Church has remained unoccupied since these works were undertaken [7]. The current petition covers a third phase of work,  the restoration and improvement of the interior. The aim of the work is to bring the Church back into use, and to create a flexible and comfortable space for both church and community use [8].

The petition sought a faculty for the installation of an accessible toilet; installation of kitchen facilities; electrical work; replacement of the existing pews with chairs; levelling and replacement of the nave floor; replacement of carpet in the chancel; and relocation of the font [8].

Following the revision of the Statement of Needs and Statement of Impact, the CBC, HE, VS and GG updated their responses to the consultation. There is broad support from these bodies for the modernisation of the facilities within the Church, although the proposed removal of the pews and their replacement with individual chairs has received less support, and concerns were expressed as to the proposed flooring materials [16,17].

The Deputy Chancellor considered the proposal against the five questions in Re St. Alkmund, Duffield [2013] Fam 158, [23] to [50]. He indicated that he considered there to be a clear and convincing justification for the removal of the pews and their replacement with individual chairs, taking the view that there was, in principle, a clear public benefit in such a scheme, and that this outweighs any harm to the Church [51].

Notwithstanding the advice of the CBC in relation to upholstered chairs he approved chairs upholstered in a colour (a dull sandstone) which would blend in with the interior stonework of the church. [Re St. James Uldale [2022] ECC Car 5] [Top of section] [Top of post]

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Church Treasures/Sale of Paintings/Loans/Memorials

Re All Saints Elston [2023] ECC S&N 1 Two memorials to parishioners who had died serving in the First and Second World Wars had been fixed to the east wall of the church porch. The First World War memorial is a white stone tablet in a carved alabaster surround with seven names; the Second World War memorial is a complementary but somewhat simpler tablet, with five names [1]. It was asserted that three of the twelve names are wrong, and the Parish Council ((“PC”), not the Parochial Church Council (“PCC”)) petitions for a Faculty to undertake alterations to the tablets [2]. The researcher had no part other than as a witness of fact, and did not have a role in conducting the proceedings. “That is the case regardless of his own position vis-à-vis the PC, of which he became a member in March 2022, after almost all the events in these proceedings except the hearing itself. Further, whatever may be the exact origin of the various documents and written submissions supplied to the Court, those addressed to the court fall to be regarded as made by the PC as Petitioner” [7].

It was submitted that the consistory court had no jurisdiction over the War Memorial and that the issue of whether it should be altered was solely a matter for the Petitioner, the Parish Council. The argument of ownership by the Community was dismissed as having no merit, and the provisions of s 133 of Local Government (Powers) Act 1948 “do not…permit a local authority to undertake the work in question, in the absence of a right or permission to do so [9]”…”These statutory provisions do not, therefore, affect the need to obtain a Faculty for work on a monument in a church [12]”.

After considering the names of those commemorated, Ockelton Ch. observed:

“[24]. There are two aspects to the question whether any amendments should be made. The first is the identification of any family members or others who want (or wanted) the memorial to be changed, and their reasons; together with the views of any other individuals. The second is the question whether mistakes (or perceived mistakes) on a monument ought to be changed as a matter of principle, regardless of any particular wishes”.

 He concluded:

“59]. There is no general principle that names on a war memorial should exactly match the legal names of the deceased, nor is there a presumption that any errors should be corrected. There is no evidence that those who knew and loved the dead showed any dissatisfaction with the memorials as erected. The proposal for correcting the errors said to have been discovered is incomplete, inconsistent and unsatisfactory.

[…]

[61]. The inscriptions on the Elston memorials are not ambiguous and there is no suggestion that anybody has been misled or confused by them. The full details of those commemorated are available in folders in the church. There is no need to make the suggested alterations, no widespread or well-supported desire to do so, and no known way in which they could be made satisfactorily. The Petitioner has fallen well short of making out its case for the monuments to be altered in the manner sought. I refuse to grant the Faculty.”

[Re All Saints Elston [2023] ECC S&N 1] [Top of section] [Top]

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Exhumation

• Problems of access
• Family graves
• Errors in burial

Family graves 

Re St. George Kidderminster [2022] ECC Wor 10 The petitioner’s father died in 1989 and his cremated remains had been buried in the churchyard. The petitioner’s mother died in 2022 and her body had been buried in another part of the churchyard [2]. I was her “settled desire and intention for such period of her widowhood that she retained capacity, that her remains would be buried with those of her late husband”. She understood this would be possible, although in the event this was not possible due to the location of her late husband’s cremated remains [3]. Humphreys Ch. noted that it is now over 30 years since the interment of the cremated remains, and this raises two issues, one of principle and one practical: why there was such a long delay before asking for exhumation and relocation; and whether if such relocation were attempted would there be anything remaining in the grave that would be recognisable as ashes. [8].On these practical considerations, she observed:

“[12]. There may be little or nothing remaining of the casket and the ashes contained within it in after over 30 years. If there was no casket then it is even less likely that recognisable ashes will persist.

After reviewing Re Blagdon Cemetery [2002] Fam 299, [10, 11], the Chancellor considered its application in the subsequent cases [13] to [24], noting:

“[14]. 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.

[…]

“[21]. I must confess that I struggle to understand the principle behind the difference in approach between a ‘family grave’ containing the remains of only one other person and that containing the remains of ‘more than one’ family member.

She concluded:

“[22]. On balance…I determine that the reasons in support of the desirability of ‘family graves’ as set out in Blagdon Cemetery apply where two family members are united in the same way (if less forcefully) as where three or more family members are united. Therefore, a faculty can be granted to unite the remains of two people only if, in my discretion, I consider there are strong enough reasons for it.”

In addition to the family grave justification other reasons could be relied upon in support of this petition: the strong desire of the deceased to be buried with her husband, throughout her long widowhood; mistaken belief that this would be possible within the grave space occupied by her husband’s remains; this mistake explaining the long delay in making the application [23]. The Chancellor concluded:

“[24]. On balance, I do find that the above factors, taken together with the relocation to a grave containing the remains of one family member only, is sufficient to enable a faculty to be issued, subject to the practical issues in respect of the condition of the cremated remains…

…If when the grave is opened there is, in that minister’s opinion, no identifiable remains to transfer, then the empty gesture of transferring an undistinguished lump of earth should not take place, and sadly the family will have to come to terms with the fact that it is simply not possible to carry out the wishes of their late parents.

 [Re St. George Kidderminster [2022] ECC Wor 10] [Post] [Top of section] [Top of post]

Errors in burial

Re Christ Church Padgate [2022] ECC Liv 3 The family sought the exhumation of the remains of the late Jean Atkinson, which had been interred in July of that year. There had been various errors that may have arisen through “poor communication or misunderstanding”, but Wood Ch stated that that was immaterial since:

“[4]. …The family were required to endure the upsetting experience of an interment which took place seemingly several hours after the funeral ceremony because of the delay in attendance by the gravedigger, and the dislodging of the coffin lid, as the coffin was lowered into the grave space, clearly insufficient to accommodate it.

[5]. …the grave was subsequently overlaid to a very shallow depth, and certainly leaving insufficient space for subsequent interments”.

Although errors such as these did not neatly fall within the “relevant factors” outlined in [36] in Re Blagdon Cemetery [2002] Fam 299, they satisfied the general requirement of “special circumstances […] which justify the making of an exception from the norm that Christian burial” [35].

The Chancellor had no hesitation in coming to the conclusion that the necessary criteria for “exceptional circumstances” were fulfilled and that a faculty should issue [7].  Although not material to the judgment, he noted that an application had been made for an exhumation licence from the MoJ, “which of course is unnecessary because the burial took place in consecrated ground” [8].

In the special and distressing circumstances of this case, the Chancellor granted a faculty for exhumation and reinterment in the same churchyard. The funeral directors and the gravedigger had failed to comply with the family’s request for a grave to be dug sufficiently deep to accommodate not only the remains of the deceased, but also the remains of other members of the family in due time. [Re Christ Church Padgate [2022] ECC Liv 3] [Post] [Top of section] [Top of post]

Re Hampton Cemetery [2023] ECC Lon 1 The petitioner wished to transfer the mortal remains of his mother from a columbarium niche in a consecrated area of Hampton Cemetery in London, where they had been since 1989, to the Isle of Wight, where the petitioner and some other members of the family now lived, for re-interment in a place as yet unidentified, as they felt unable to clean the memorial to the deceased, in view of the distance.

Etherington Ch. commented:

“[7]. It can sometimes be possible to reunite family members in a shared plot or vault and that can be a circumstance which may justify exhumation. That is not proposed here and, indeed, no plot of any kind has yet been arranged – the proposal being that the family look after the remains until a plot is arranged somewhere. I do not know whether this would involve ultimately moving the remains from consecrated ground in Hampton to unconsecrated ground.

[…]

[10]. If at some point the family have a definite family plot or vault in consecrated ground where it is proposed that the remains of family members … may be reunited, then there may be better grounds for seeking exhumation in the future, but, in this case, as the evidence stands, in light both of the case-law and general principles relating to permanent exhumation from consecrated ground, the petition has to be refused”.

[Re Hampton Cemetery [2023] ECC Lon 1] [Top of section] [Top of post]

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Churchyards and burials

• Designation of closed churchyard
• Churchyard Regulations
• Reservation of grave space

Designation of closed churchyard

See Privy Council Business.

Churchyard Regulations

Re St. Paul Foxdale [2023] EC Sodor 1 The petitioners sought approval for the erection of a memorial to an autistic child, J, who had died in a therapeutic hot tub. The proposed memorial comprised an upright stone, including colours associated with the Autism Society, and kerb stones.

For pastoral reasons, the petition was brought, not by the parents of J, but by the Vicar and Wardens of the parish, who were anxious to bring matters to a satisfactory and seemly conclusion. This course of action was supported unanimously by the PCC. It was proposed that the tombstone should bear the inscription, after the identifying details of J’s name and dates of birth and death “Ride your white horses, sweet boy, on Fenella’s1 golden sands to the stars in the sky” [4].

Despite the departure from the Graveyard Regulations, the DAC recommended the petition to the Court, and on the question of  kerbs, the Vicar General had absolutely no difficulty in agreeing to them: “The grave is surrounded by a number of others in a distinct section of the graveyard at St. Paul’s Foxdale, many of which already have kerbs . . . I accept that there is a compelling reason for authorising the inclusion of colours referring to the Autism Society.” [Re St. Paul Foxdale [2023] EC Sodor 1] [Top of section] [Top]

Reservation of grave space

Re St. Peter Wolviston [2023] ECC Dur 1 The Petitioner sought to reserve a double grave space fo himself and an unspecified other person in the churchyard of Wolviston St Peter in the parish of Billingham. However, he is not a parishioner nor on the electoral roll, and not a regular worshipper. He does not  live within the diocese of Durham, although his grandparents, parents and some other relatives are buried in the churchyard [1].  Space for new burials in St Peter’s churchyard is running out, and based on the present rate of burials the churchyard will be full in about two years [2]. Nevertheless, the PCC discussed the petition and unanimously voted to support it [3].

On noting that he was not a parishioner and was not on the electoral roll, the diocesan registry sent him a copy of the judgment of this court in the case of Fatfield St George re Goundry [2021] ECC Dur 4 to alert him to the principles that would be applied when deciding his petition. In this, HH Peter Collier QC Diocesan Chancellor for York observed: “{i]t is very rare, in my experience, to allow a reservation of a plot, by someone who does not have a right of burial”.

The Petitioner commented that he was not aware he had requested a double grave, but “having had his attention drawn to it he would like to include his partner on the petition, but like him she was not a parishioner nor on the electoral roll” As she has not informed the court that she wished or consented to be a joint petitioner, the Chancellor did not grant permission for the petition to be amended to add her as a party in the proceedings [7].Isles Ch. concluded:

“[8]. This petition bears many similarities to Fatfield St George re Goundry where the petitioners also were not parishioners but had close relatives buried in the churchyard; in that case the petition was dismissed so as not to override and prejudice the rights of parishioners. The petition of Mr Lewis must likewise be refused”.

[Re St. Peter Wolviston [2023] ECC Dur] [Top of section] [Top of post]

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Privy Council Business

At the time of posting, no meetings of the Privy Council were recorded for January 2023. 

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CDM Decisions and Safeguarding

On Monday 11 July 2022, General Synod agreed to the Draft Amendments to the Code of Practice issued under the Clergy Discipline Measure 2003 (GS 2281). These amendments to the CDM Code of Practice provided for the publication of Penalties by Consent in addition to the listing of Tribunal Decisions already in the Church of England website.

The new policy came into force on 24 October 2022 although there is a potential lacuna for cases where the penalty was imposed after the change in the Code of Practice, but before this date, as with The Right Reverend Peter Hullah, and others. The page on the CofE website Penalties by Consent records the penalties that have been imposed by a bishop or archbishop with the consent of the respondent under section 16 of the Clergy Discipline Measure 2003 and penalties that have been imposed under section 30 or 31.

CDM Decisions

At the time of posting, no formal CDM Decisions were recorded for January 2023. However,  on 30 January there was a Press Statement from the Acting Bishop of Winchester concerning the Penalty decision relating to the Stephen Sizer judgment in December 2022.

Penalties by consent

Diocese of Portsmouth

• The Rev Peter Lambert The Rev Peter Lambert was the subject of a complaint under the Clergy Discipline Measure earlier this year. The complaint was of conduct inappropriate for a clergy person.

Peter has admitted this inappropriate conduct. The penalty, which was determined by the Bishop of Portsmouth, is a five-year prohibition from ministry in the Church of England, from May 2022. This means he is not able to lead church services or act as a clergy person during that time. After this period of prohibition, a risk assessment will be carried out before Peter is able to resume ministry.

November 2022

Church of England

• The Ven SUSAN ELIZABETH FIELD
  Diocese: Coventry
  Date imposed: 4th January 2023
  Relevant CDM section: 16(1)
  Statutory Ground of Misconduct: s.8(1)(d): Conduct unbecoming & inappropriate to the office and work of a clerk in Holy Orders
  Penalty: Resignation from office & injunction

• The Revd PHIL GREIG
  Diocese: Canterbury
  Date imposed: 7th December 2022
  Relevant CDM section: 16(1)
  Statutory Ground of Misconduct: s.8(1)(d): Conduct unbecoming & inappropriate to the office and work of a clerk in Holy Orders
  Penalty: Limited prohibition for 4 years

• The Revd IAIN JONATHAN BROOMFIELD
  Diocese: Rochester
  Date imposed: 7th November 2022
  Relevant CDM section: 16(3A)
  Statutory Ground of Misconduct: s.8(1)(d): Conduct unbecoming & inappropriate to the office and work of a clerk in Holy Orders

• The Revd SIMON MATTHEWS
  Diocese: Leicester
  Date imposed: 31st October 2022
  Relevant CDM section: 16(1)
  Statutory Ground of Misconduct: s.8(1)(d): Conduct unbecoming & inappropriate to the office and work of a clerk in Holy Orders
  Penalty: Limited prohibition for 1 year

Solicitors Regulation Authority (SRA)

• Christopher Peak. The solicitor and Registrar to the Diocese of Gloucester between January 1985 and November 2012, agreed with the Solicitors Regulation Authority to remove himself from the roll of solicitors. [See Diocesan Registrars and conflict of interest].

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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. At the time of posting, there were no new reports from the Independent Reviewer.

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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 Wednesday 14 December 2022.

Extracts from the determinations in 8 September 2022 and 3 November 2022 were included in the December round-up of ecclesiastical decisions. At the time of writing, decisions from the December meeting were not available.

The next meeting of the CFCE is on Thursday 2 February 2023.

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Visitations

• Truro Cathedral Visitation Statement. In July 2022 the Bishop of Truro, the Rt Revd Philip Mounstephen announced a Visitation of Truro Cathedral.  Work began immediately, concluding in December 2022 and Bishop Philip has today released his final Determinations from that Visitation. (20 January 2023).

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Links to other posts

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

General/Miscellaneous

• Diocesan Registrars and conflict of interest. (11 January 2023).
• Living in Love and Faith (LLF): legal issues. (22 January 2023).
• The Church of England and same-sex relationships – update.   (20 January 2023).
• The Church of England and same-sex relationships, (18 January 2023).

[Top]

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Notes on the conventions used for the navigation between cases reviewed in this post are summarized here.

* Last updated, 30 January 2023 at 15:45.