Review of the ecclesiastical court judgments during July 2023
This summary also includes: CDM Decisions and Safeguarding; Privy Council Business; CFCE Determinations; and Links to other posts relating to ecclesiastical law.
Reordering, extensions and other building works
Other building works, including re-roofing
Re St. Leonard Hythe [2023] EACC 1 In Re St. Leonard Hythe [2023] ECC Can 2, the petitioner applied for a restoration order in respect of an altar which had been moved to the head of the nave, on the basis that no lawful authority had been granted for such use. The Commissary General had dismissed the petitioner’s application.
The petitioner applied for leave to appeal. The Dean of the Arches refused to grant leave to appeal. The main ground of appeal was that it was unlawful to move an altar in a church without the authority of a faculty. The Dean referred to Canon F2, which states that, if there is any dispute as to where an altar is to be positioned, it should be determined by the Ordinary. In relation to another ground of appeal, that the altar had been installed without authority, the Dean pointed out that, as the altar had been installed more than six years ago, the court had no jurisdiction to make a restoration order (S72, Ecclesiastical Jurisdiction and Care of Churches Measure 2018). [Re St. Leonard Hythe [2023] EACC 1] [Top of section] [Top of post]
Removal and replacement of pews
Re St. Catherine and St. Paul Hoddesdon [2023] ECC StA 5 The
petitioners sought permissions to remove 26 pews from the nave and behind the altar, plus 3 pew fronts, retaining the original pews in the gallery and 4 of the best of the pews from the nave or altar areas, but otherwise disposing of the pews. A temporary re-ordering licence was in place which had allowed the church to experiment with the proposed arrangements in practice. Presently the pews are stored in the transepts. [1.1]. Consideration was given to remounting the Church Wardens’ Staves, currently affixed to the ends of pews [1.2] and also movement of an existing monitor to a new location in the gallery. [1.3].
The Chancellor was satisfied that the pews should be replaced with chairs, although she stated:
“[20]. …I have also seen two red chairs and a single plain wooden chair appear in some of the photographs with no explanation for how those chairs feature in the plans, but I would note that they detract from the effect of the grouped neutral coloured chairs and should be removed”.
She also agreed to the relocation of mounts for the churchwardens’ staves to the pillars either side of the entrance to the church and the installation of the monitor on a retractable bracket on the north side wall of the gallery. [Re St. Catherine and St. Paul Hoddesdon [2023] ECC StA 5] [Top of section] [Top of post]
Re St. Peter Bishop’s Waltham [2023] ECC Por 1 The Nave and both aisles of the Grade II* church are furnished with Victorian pews, although some pews have been removed in each aisle and at the front of the Nave under previous faculties [1]. The parish now seeks permission for the removal of the remaining pews in the North and South aisles and of two rows at the rear of the North Nave. The purpose is to create more flexible and informal spaces in the aisles for family and children’s activities and for an expanded music area and to allow more space at the rear of the Nave for the congregational fellowship between services and similar gatherings [2].
The Victorian Society questioned the need to remove the pews, and a private individual objected on grounds of insufficient consultation; a reduction in seating capacity; cost; and whether there was a need for the pews to be removed. The DAC recommended the proposed works for approval, subject to one proviso about a potential trip hazard from the pew plinths [3]. Whilst understanding the concerns of the VS and the objector, the Chancellor stated that the parish’s proposals were amply justified by the need to develop the wider mission and ministry of the church and that any harm to the church’s historical significance which the removal may cause is firmly outweighed by the potential benefits [5]. The reasons for this conclusions are set out in the judgment [6] to [31]; the court’s approach, [32] to [34]; discussion [35] to [42]; and the conclusions [43] to [46].
The Chancellor was satisfied that the petitioners had made a good case and granted a faculty. In view of the need for some reflection on the South aisle proposals, he proposed to allow a period of two years for the completion of the works [44].
With regard to the DAC proviso requiring further detail of the treatment of the pew plinths, the faculty was subject to a condition that the parish, after consultation with its inspecting architect, is to provide the DAC with details of the mitigations that will be necessary to address any trip hazards or accessibility issues arising from the plinths which remain after removal of the pews [45].
A condition was also attached requiring the parish to submit the design, material and colour (if any) of any replacement seating for the approval of the DAC, which may refer the matter to the Chancellor in the event of any dispute [46]. [Re St. Peter Bishop’s Waltham [2023] ECC Por 1] [Top of section] [Top of post]
Re Sheringham Town Cemetery [2023] ECC Nor 1 The petitioners’
father’s ashes had been interred in the cemetery in 2004 in a plot reserved for the ashes of him and his wife. Some years later, the petitioners’ mother had decided that she did not wish her ashes to be buried with those of her husband, but wanted them scattered where she used to walk her dog. She had also expressed a wish that here husband’s ashes be exhumed and scattered in the same place. The petitioners’ mother died in 2023.
The Chancellor noted [emphasis in original]:
“[15]. …This petition is about the mortal remains of the Petitioners’ father. Their mother is entitled to have her ashes scattered if that was her wish. She is entitled to decline to be buried in a plot with her husband if that was her wish. She does not, however, have the right to have her husband’s remains disturbed and to deny him a permanent burial by the scattering of his ashes, having already committed his remains to consecrated ground, even if that was her considered wish.
[16]. I have no indication that this is how he would have wished his remains to be treated: whether he would have wanted his ashes exhumed and scattered 19 years after his burial leaving him no permanent burial place”.
The Chancellor refused to grant a faculty to allow the petitioners’ father’s ashes to be exhumed and scattered. There was no legal basis on which to justify exhumation. There had been no mistake as to the place of burial, but simply a change of mind after a long period of time, which was not a proper reason for allowing an exception to the general rule that burial should be regarded as final. [Re Sheringham Town Cemetery [2023] ECC Nor 1] [Top of section] [Top of post]
Re Fulling Mill Lane Cemetery Welwyn [2023] ECC StA 4 The petitioners’ daughter had died aged 20 in a car accident in 1988 and her ashes had been interred in a consecrated plot in the cemetery garden of remembrance [1]. The petitioners sought permission to exhume the ashes and reinter them in a full-size plot in the same cemetery, which would become a family grave [5]. There was no evidence of an existing legal right to a grave which could become a family grave [6]. The Deputy Chancellor envisaged that, if the petition were dismissed and a family grave was subsequently purchased, and there was evidence of an existing right to burial in a family grave, such that the family grave were not “simply a possibility” (in the words of Re Blagdon), the situation would then be different [19]. He was not satisfied that the present circumstances justified exhumation. However, he determined to grant a faculty (without limit of time), which would allow the exhumation and reinterment of the ashes at the time of the first burial of one of the family members identified in the judgment in a grave intended to be a family grave [20]. [Re Fulling Mill Lane Cemetery Welwyn [2023] ECC StA 4] [Top of section] [Top of post]
Designation of closed churchyard
Re St. John Stockcross [2023] ECC Oxf 8 The petitioner wished to
reserve a grave space. It was estimated that there were enough grave spaces in the churchyard for a period of 11 years. The Chancellor had given a preliminary indication that he was prepared to grant a reservation for 11 years, but the petitioner had objected to such a short period. The normal period allowed in the Diocese of Oxford was 25 years. The Chancellor determined that a faculty should be granted to reserve a grave for 11 years, giving the petitioner leave to apply for an extension during the final year, when the Chancellor’s successor could decide whether to allow an extension, depending on the circumstances at that time. [Re St. John Stockcross [2023] ECC Oxf 8] [Top of section] [Top of post]
Re St. Mary Newchurch-in-Pendle [2023] ECC Bla 5 The petitioner wished to reserve a cremation plot next to the plot where the ashes of her son, who had died in a tragic accident, were interred in 2019 [1]. The Chancellor granted a faculty. However, the Chancellor took into account that there were only nine plots left for the burial of ashes; the annual rate of ashes interments was one per year; and the petitioner was only 46 years of age. He therefore limited the grant to a period of 10 years, with leave for the petitioner to apply for an extension within the last of the ten years, when the Chancellor’s successor could decide whether to allow an extension, depending on the circumstances at that time. [Re St. Mary Newchurch-in-Pendle [2023] ECC Bla 5 Bla ] [Top of section] [Top of post]
- Burial Act 1853 (Notice): Order giving notice of the discontinuance of burials in: Holy Trinity Hurdsfield Churchyard, Macclesfield, Cheshire;
St Mary’s Churchyard, Long Stratton, Norfolk; 3. St Peter’s Churchyard Extension Barnburgh, Doncaster, South Yorkshire - Burial Act 1853 (Final) Order prohibiting further burials in: St Mary the Virgin Church Churchyard, Diptford, Devon; St Mary’s Church Churchyard, North Huish, Devon; All Saints Churchyard, Nazeing, Epping Forest, Essex; St Andrew Churchyard, Burgess Hill, West Sussex.
CDM Decisions and Safeguarding
Safeguarding
- Independent Safeguarding Board (IAB): Safeguarding Case Review – Mr X, (Abridged version of Report). (Report dated 15 March 2023 and issued on 11 April 2023.
- Church of England: Independent Learning Lessons Review – Late Trevor Devamanikkam, (11 May 2023).
- Diocese of Oxford: Learning Lessons Review: Revd Michael Hall, 21 July 2023.
- Diocese of Oxford: The Ben Field case, (revision, 20 July 2023).
The dates of the Cathedrals Fabric Commission for England may be found by scrolling down to the bottom of the page Cathedrals Fabric Commission. At the time of writing, decisions from the December 2022, February 2023, March 2023, May 2023 and July 2023 meetings were not available. (There was no meeting in April 2023). The next meeting of the CFCE is scheduled for Thursday 7 September 2023.
- The Gazette: Marriage Acts: The Registrar General has cancelled the registrations as a place of religious worship in accordance with the Marriage Act 1949. (25 May 2023).
Recent summaries of specific issues that have been considered in the consistory courts include:
Church Treasures/Sale of Paintings &c
- Contested heritage: amendments to faculty jurisdiction rules, (3 July 2023).
General/Miscellaneous
Learning Lessons Review: Revd Michael Hall, (21 July 2023)
IICSA Chair to develop proposals for CofE safeguarding, The Church of England has announced that Professor Alexis Jay is to develop proposals for fully independent structure for safeguarding scrutiny, (20 July 2023).
Synod to consider deposition from holy orders, (9 July 2023).
Marriage and/or Holy Matrimony, In a guest post, HH Peter Collier KC, looks critically at the controversy between the treatment of the institution of Holy Matrimony and the institution of civil marriage as distinct realities, (6 July 2023).
Alternative to cremation announced, Co-op Funeralcare set to pioneer the introduction of Resomation in the UK later this year.(4 July 2023).
Safeguarding and the Church of England, L&RUK round up. (25 June 2023).
CofE Independent Safeguarding Board to be “reset”, “The Council has therefore agreed a reset. This will involve ending the contracts of two of the members of the Board, Jasvinder Sanghera and Steve Reeves, and of the acting Chair, Meg Munn…In the very immediate future, we have asked Meg Munn to provide business continuity for the remaining business of this phase of the ISB’s work”. (23 June 2023).
[Top]
Notes on the conventions used for the navigation between cases reviewed in this post are summarized here.