Ecclesiastical court judgments – January (II)

A total of 20 consistory court judgments were circulated in 2024 and the first part included summaries of judgments on ProcedureReordering, extensions and other building works and organs,

This second part features ExhumationChurchyards and burials, and also includes: Safeguarding and Links to other posts relating to ecclesiastical law.

Exhumation

Errors in burial

Re Edgewell Cemetery [2023] ECC New 4 The petitioner applied for a faculty to authorise the exhumation of a relative and reinterment in an adjoining grave. The relative had reserved two plots, one for her sister and one for herself. Owing to a mistake, the relative was buried in her sister’s grave. The Chancellor determined that the mistake justified the grant of a faculty for exhumation and reinterment.

He commented: “I am quite satisfied and find that the remains of Sylvia Screen were buried erroneously in her sister’s grave and not in the vacant adjacent plot as she had intended and for which she had made provision. This was a mistake, pure and simple” [12]. [Re Edgewell Cemetery [2023] ECC New 4] [Post] [Top of section] [Top of post]

Re St. George Fordington [2023] ECC Sal 2 The petitioners sought the exhumation of ashes from a consecrated plot in the churchyard of the church of St George, Fordington, and they be reinterred in the churchyard of All Saints, Dewlish, some eight miles away, in a plot which would subsequently become a family plot [1]. This matter has been allocated to the deputy chancellor for decision since prior to filing the petition, the petitioners sought and obtained advice on this matter from the Chancellor [2].

In July 1991, the petitioners third child was stillborn due to trauma sustained by her mother in a car accident; her ashes were interred in the churchyard of St George’s, in Fordington, Dorchester, which was then the petitioners’ church [4]. They now live elsewhere and wish to have the baby’s ashes interred in the churchyard at Dewlish, a short distance away, where three generations of the baby’s father’s family were buried, and where the petitioners wished to be buried in due course [5].

However, the petitioners had no legal right to burial at Dewlish, and at the time had not taken steps to secure such a right which would be a matter for the discretion of the incumbent at the time [7].  Following the guidelines in Re Blagden Cemetery [2002] Fam 299, discussed in [12] to [23], the Chancellor determined that the circumstances did not justify the grant of a faculty for exhumation, “To do so on any of the grounds discussed…, or taking them in combination, would be to pay insufficient regard to the presumption of permanence” [24]. [Re St. George Fordington [2023] ECC Sal 2] [Top of section] [Top of post]

Other

Re An Unnamed Burial Ground [2023] ECC Chi 2 The petitioner wished to have her mother’s body exhumed from a consecrated burial ground in the Diocese of Chichester and reinterred in a consecrated burial ground in another diocese.  The Chancellor granted a faculty, being satisfied that there were special circumstances and in view of the sensitivity of the matter, the he made the judgment anonymous, requiring that it should not be published until after the exhumation and reinterment had been carried out. [Re An Unnamed Burial Ground [2023] ECC Chi 2] [PostTop of section] [Top of post]


Churchyards and burials

Churchyard Regulations

Re All Saints Stretton-on-Dunsmore [2023] ECC Cov 2 The petitioner wished to have erected on her husband’s grave a headstone including the design of three stylised heraldic lions, as her husband had a tattoo of three lions. The Chancellor was concerned that the design of the lions was similar to part of the Royal Arms of England, and to the three lions design licensed by the Crown to be used by the England football and cricket teams. In the absence of permission from the Crown to use the design, the Chancellor refused to permit the design on the headstone. However, he did permit the inscription on the headstone to include the deceased’s nickname and the words ‘Husband, Dad and Grandad’. [Re All Saints Stretton-on-Dunsmore [2023] ECC Cov 2] [Top of section] [Top of post]

Re St. Peter Terwick [2023] ECC Chi 3 The petitioner wished to erect a memorial over the grave of his late wife. The incumbent, Parochial Church Council and churchwardens raised 11 objections, but did not wish to be parties opponent. After a site visit and an informal hearing with the petitioner, the incumbent and a churchwarden, the Chancellor indicated that he was minded to allow the memorial and would give detailed reasons in a written judgment. [Re St. Peter Terwick [2023] ECC Chi 3] [Top of section] [Top of post]

Re St. Lawrence Toot Baldon [2023] ECC Oxf 10 The petitioner’s late wife’s ashes had been interred in the grave of her mother in 2019. The petitioner had obtained the approval of the Team Vicar to the laying of a ledger stone in memory of his wife on the grave. The stone was not one which was authorised under the churchyard regulations, which the Team Vicar had failed to appreciate. This oversight came to light when a couple who had known the petitioner’s wife, wrote to the Diocesan Registry to object to the stone being outside the regulations and out of keeping with other stones in the churchyard. The Chancellor decided (“Not without some hesitation …”) to allow the stone to remain, as the petitioner had “the full support of the minister, the churchwardens, the PCC, the DAC, and the petitioner’s family, and for powerful pastoral considerations”. [Re St. Lawrence Toot Baldon [2023] ECC Oxf 10 (revised)] [Post] [Top of section] [Top of post].

Re St. Chad Kirkby [2023] ECC Liv 5 A memorial comprising a headstone and a ledger stone had been installed in the churchyard without the prior knowledge of the Team Rector, following the interment of a fourth member of the family in the same grave. The family was advised that the Team Rector could not have approved the memorial since some features were outside the churchyards regulations. The family applied for a confirmatory faculty.

The Chancellor observed:

“[22]. It is most unfortunate that the stonemason, whose company’s precipitous actions have been substantially, if not wholly responsible for the situation which now exists, namely an unauthorised memorial, has been seeking to transfer blame and responsibility to the Incumbent and the church general, and it is apparent from the letter provided on 9th October 2023 and addressed to myself c/o the Bishop of Liverpool’s Registry, that far from opposing the memorial, or requiring its removal, he is supportive, although he retains a degree of criticism for the stonemason”.

The Chancellor directed that a photograph on the headstone and two emblems of Liverpool Football Club should be removed. Whilst not happy about the nature and extent of the inscriptions, the Chancellor otherwise granted a faculty. He considered that the stonemason had been remiss in not advising the family that they should have applied for a faculty for a memorial outside the regulations and should therefore meet the cost of removal of the photograph and the football club emblems. [Re St Chad Kirby [2023] Ecc Liv 5] [Top of section] [Top of post]

Reservation of grave space

Re St. Leodegar Hunston [2023] ECC Chi 1 The Chancellor refused to grant faculties for the reservation of two separate grave spaces in the churchyard, notwithstanding that the applicants had connections with the church, and the churchyard was likely to be full within 5 years. The Chancellor said that the remaining spaces must be filled by the burial of individuals with a right of burial or a strong connection with the church in the order in which they die, until such time as the churchyard becomes full. [Re St. Leodegar Hunston [2023] ECC Chi 1] [Top of section] [Top of page].

Trees

Re All Saints Isley Walton [2023] ECC Lei 4 Following a complaint in 2022 from a local resident, the former Chancellor proceeded to determine whether two trees felled in the churchyard with the approval of the archdeacon should have been the subject of a faculty application. She decided that the felling of the first tree was permissible with the archdeacon’s approval (and she granted a retrospective faculty), but that the felling of the second tree should have required a faculty,  Re All Saints Isley Walton [2022] ECC Lei 1.

In this judgment in 2022, the former Chancellor required expert reports as to how to deal with the two tree stumps, a recommendation as to the planting of replacement trees and advice on the effect of the stumps on the nearby wall and memorials.

In the 2023 judgment, the Deputy Chancellor considered the reports that had been submitted and requested further reports from the Parochial Church Council and the church architect before any further action. [Re All Saints Isley Walton [2023] ECC Lei 4] [Top of section] [Top of page].


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.  The programme for 2024 is here and the next meeting will be on Thursday 1 February.


Links to other posts

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

Procedure

Reordering, extensions and other building works

Churchyards

  • Tottenham Park Cemetery: The Ministry of Justice has announced that it is to apply to the Privy Council for an order prohibiting further burials at Tottenham Park Cemetery in North London. No new burials would be permitted except where plots had previously been reserved.

The MoJ says that the move follows two inspections which found that remains were being unlawfully disturbed during the burial process. Recommendations that no new plots should be excavated or sold, that record-keeping should be improved and that a survey should be undertaken to identify existing burials had not been met.

The press release notes that a closure order will not affect the opening of the site for the public to visit existing graves.

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

Updated: 30 January 2024 at 15:1.0


Cite this article as: David Pocklington, "Ecclesiastical court judgments – January (II)" in Law & Religion UK, 1 February 2024, https://lawandreligionuk.com/2024/02/01/ecclesiastical-court-judgments-january-ii-3/

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