Review of the ecclesiastical court judgments during April 2024
The thirteen consistory court judgments circulated in April included:
Also included are: CDM Decisions and Safeguarding; Reports from the Independent Reviewer; Privy Council Business; Other legal issues; 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. Ia the Virgin St. Ives [2024] ECC Tru 1 The Vicar of St Ia sought a faculty for alterations to the church to improve accessibility, welcome and hospitality. The works included: reopening the baptistry entrance and the installation of an external platform lift to create an accessible entrance in the west facing elevation of the church; removal of four half pews from the baptistry area; extension of the slate floor to the area from which the pews were to be removed; reordering of the vestry extension to include a kitchen area in the choir vestry; storage facilities; an extra W.C.; a purpose built desk in the vicar’s vestry; and the creation of a new door in the northeast corner of the vestry.
Briden Ch. commented: “the generality of the scheme has the support of the PCC, the Society for the Protection of Ancient Buildings and Historic England; the objections considered later in this judgment are directed to what might fairly be described as matters of detail” [1]. The DAC recommended the proposals subject to a proviso that the project should be divided into phases, and that it should have additional involvement in the detail of each phase, “a sensible requirement in the operation of such a complex and sensitive nature, which may be addressed in a condition to a faculty [2].
Initially, there were eight objections upon the giving of public notice. A significant concern to the objectors was the provision of a canopy over the newly-configured external entrance. The Petitioner and his advisors recognised that the canopy was not an essential item, which was therefore capable of being omitted. Accordingly it was withdrawn from the scheme, with the result that three of the objectors decided not to pursue the matter [3]. The remaining five objectors submitted written representations upon various issues, electing not to become parties to the proceedings [4]. The Petitioner drew attention to the fact that three of the remaining objectors are members of the PCC, but “unlike cabinet ministers, PCC members are not subject to the constraints of collective responsibility and are thus entitled to make representations to the representations of December 19th 2023 to the canopy [4]. Other objections related to: archaeology [5, 6]; seating [7 to 9]; Vestry [10, 11].
In granting a faculty, Briden Ch. concluded:
“[12]. When viewed as a whole, the proposals have been successful in avoiding harm to this historic church building and its setting. Any harm is considerably outweighed by the pastoral and community benefits arising from enhanced facilities in the church and churchyard, a conclusion supported by the advice given by the Society for the Protection of Ancient Buildings […] letter of November 15th 2023.
[13]. In reaching this conclusion account has been taken of […] concerns in relation to the appearance of the external lift, which is perhaps the most obvious visual intrusion in the overall scheme. In the case of the lift, however, ease of access for disabled people and other visitors is a compelling reason for making such provision in the manner proposed. The DAC is yet to consider design details”.
[Re St. Ia the Virgin St. Ives [2024] ECC Tru 1] [Top of section] [Top of post]
Re St. Michael Basingstoke [2024] ECC Win 2 The proposed reordering works for the Grade I church included: removal of chancel furniture and some pews (to be replaced with stackable chairs); installation of glazed lobby; kitchenette and WC facilities; and removal of the pulpit. The proposed reordering works set out in the Petitioners’ Statement of Needs included the following justification for the removal of the pulpit:
“[16]. …To allow for our choir to both fit on the platform and also from what we have learnt in our trials, to be heard, we need the choir in front of the arch and extending to the sides … This is not used in any of our services and hasn’t been for many years, but it sits in exactly the space that the choir will need to be to make a success of their new position”.
Ormondroyd Ch was unconvinced by the justification, stating:
“[20]. …From my assessment the pulpit would not impinge greatly on the area available for the choir to stand to the west of the chancel arch. I am not clear why it is said that the removal of the pulpit will enable the choir to be heard. I very much doubt that the removal of the pulpit would make any real difference to the audibility of the choir in the majority of the church. I do not accept that the pulpit would constitute a “severe” limitation on the church’s worship needs…
[21] It follows that, whilst there is some justification for the removal of the pulpit, I do not find the justification to be sufficiently clear and convincing to outweigh the harm that would be caused to the significance of this grade I listed church”. I will therefore grant a faculty but subject to the condition, inter alia, that the pulpit must remain. I accept that this will mean that the pulpit continues to be unused, at least for the present, but find that is a more desirable outcome than removing it from the church.”
[Re St. Michael Basingstoke [2024] ECC Win 2] [Top of section] [Top of post]
Re St. Bartholomew Lower Sapey [2024] ECC Wor 3 The proposed reordering works included the installation of a kitchenette and an accessible WC, with associated water supply and drainage works; installation of a new ceiling; relocation of the existing font to a redundant church in the benefice, from which it originally came, and the introduction of a new moveable font [3]. Although there was supporting information from the Architect relating to external works of repair to stonework and further removal of pews and the rearrangement of remaining pews and/or introduction of chairs, neither formed part of the application to the court. Humphreys Ch. clarified that no permission for such actions was granted, and if this was required, a further petition must be brought [10].
Historic England confirmed that they did not wish to offer any comments on the proposals [11]; the Victorian Society expressed concern that the removal of the old font would undoubtedly cause harm to the significance of the building, as it was the loss of a fixture of enormous historic interest and also eroded the C19th design and layout that intentionally incorporated the historic font [12]. There was also local opposition [13, 14] of which the Chancellor noted:
“the view that is likely there is some grumbling locally about the proposals, but it is hard for that to be given much weight when the strength of feeling is insufficient to have resulted in any further letters of objection”.
The Diocesan Advisory Committee provided a notification of advice recommending the works, subject to very substantial provisos [18]. Having reviewed the law [20], Humphreys Ch. considered the various elements of the proposal: Kitchenette and WC [21] to [26]; the ceiling [27] to [33]; and the fonts [34] to [44].
With regard to whether there should be a like-for-like repair of the ceiling to provide better insulation which would reduce the costs of heating the church through its greater efficiency [30], she said:
“[32]. The carbon reduction advantages, and cost reduction advantages of these proposals, together with the benefit to the mission of the church to increase the community use of the building are ample public benefit to outweigh the harm to the significance of the building caused by these proposals”.
She also directed that an investigation be undertaken into the extent of the impact on the acoustics of the church and whether this can be mitigated. With regard to the removal of the font, the Chancellor indicated that to remove it would cause serious harm to the significance of the church. There is some mitigation of that harm by relocating it to Old St Bartholomew’s, the listed building from which it originally came and where it would remain subject to faculty jurisdiction. However, before considering whether the overall benefit of the proposals justify its removal from St Bartholomew’s, it was necessary to consider the proposals for the replacement, of which she said:
[36]. The specific proposal for the moveable font is a copper bowl on a stand. The copper bowl is said variously to be ‘Victorian’ or ‘Victorian style’. I have been given no other provenance for it. It looks like a kitchen mixing bowl, albeit a relatively attractive one. I am not aware of any Victorian church that had such a bowl installed as a font. Victorian fonts, whilst coming in various styles, are almost always of stone…
[40]. The current proposals in respect of the new portable font do not fulfil either the letter or the spirit of Canon F1. The petitioners’ attention is also drawn to the CBC Guidance Note on fonts.
[41]. I do not consider a copper bowl with two small rings on the side to be ‘a decent font with a cover’. In my judgment a loose bowl that is kept in storage and brought out occasionally does not properly recognise the importance of baptism as one of the two sacraments specifically instituted by Jesus. The risk of this bowl being used for other purposes in those circumstances is very high. There needs to be, permanently visible within the church, a font of good quality that is used solely and exclusively for the purpose of baptism. That could, in principle, be a moveable font, capable of being kept in a convenient but visible location within the church when not in use and then brought into a central and focal place for use. A particularly high-quality font of this nature may be seen within the Diocese of Worcester at Holy Trinity, Wordsley. There are doubtless many others.
[42]. As was confirmed in Re St Mary, Lenham [2014] a Chancellor can permit the relocation of an existing font within a church away from the main entrance if there is sufficient reason to justify it. It is also permissible, if a suitable case is made out, for a redundant font to be removed from a church, particularly where there is an appropriate destination available for it. However, I cannot accept that any justification has been made out, or indeed could be made out, for the proposal to remove this font from the church entirely and replace it only with a loose copper bowl…”.
She therefore declined to grant a faculty in respect of the old and new fonts, but granted a faculty for the remaining items in the Petition. [Re St. Bartholomew Lower Sapey [2024] ECC Wor 3] [Top of section] [Top of post]
Re St. John the Evangelist Goole [2023] ECC She 4 The petitioners sought permission for the permanent removal from the roof of the church a stone pinnacle, having been advised by stonemasons working on the roof that it was dangerously unstable and could fall at any time. On 24th February 2023 Singleton Ch. granted an interim faculty for the removal of the pinnacle[1]. The Petitioners have worked with the Diocesan Resourcing Churches Buildings officer and the DAC and came to the conclusion that it was not practical nor affordable to replace the removed pinnacle.
The Petitioners gave notice of these works to Historic England, the CBC and the Victorian Society, who each confirmed that they had no comment to make [4]. The DAC also recommended the works for approval and the relevant local planning authority confirmed they did not object to the proposal of permanent removal. Notices of the proposal had been properly displayed and no objections had been received.
In granting the petition, the Chancellor stated:
“[] The harm of the permanent removal is relatively small having regard for the transitional position occupied by this pinnacle. It was, fortunately, not one of the tall striking pinnacles on the south elevation which have been repaired in situ…”
[Re St. John the Evangelist Goole [2023] ECC She 4] [[Top of section] [Top of post]
Re Bognor Regis Town Cemetery [2024] ECC Chi 3 Mr Reid died in March 2023. He had been an avowed atheist all his life and was resolutely opposed to the practice of burial, but because he had lost touch with his family, those responsible for his funeral arranged for him to be buried in Bognor Regis Town Cemetery in the area consecrated for the rites of the Church of England. When his family learned what had happened, they petitioned for a faculty for his exhumation.
Hill Ch noted that it was implicit from Aston Cantlow v Wallbank [2004] 1 AC 546, that burying the dead was an act of a public authority for the purposes of s. 6(3)(b) Human Rights Act 1998, and it was therefore unlawful to do so in a way incompatible with Convention rights – and the Consistory Court was itself a public authority [9]. Article 9 ECHR protected:
“amongst other things, atheism, agnosticism and humanism. Accordingly, those individuals or institutions within the Church of England who are responsible for the solemnisation of marriage or the burial of the dead must act in a manner which is compatible with the principle of freedom of religion or belief, and must not discriminate on the basis of their religion in people’s enjoyment of their rights…” [11].
In this case, there had been an understandable mistake. The local authority, the funeral directors and the officiant at the burial could not reasonably have known about Mr Reid’s atheism and had acted entirely properly [18 & 19].
Finally:
“It is axiomatic that the requirement for reburial in consecrated ground is not applicable when the reason for the exhumation is that the Christian burial had been a mistake, incompatible with the important right to freedom of religion or belief. The family of Mr Reid are at liberty to have his body cremated and to deal with his ashes as they see fit” [20].
[Re Bognor Regis Town Cemetery [2024] ECC Chi 3] [Post] [Top of section] [Top of post]
Re St. Nicholas Codsall [2023] ECC Lic 2 The petitioner applied on behalf of her mother to have the cremated remains of her father exhumed from his burial plot and reinterred in another plot. Interments of cremated remains in the churchyard normally allowed for 18 inches of spacing between memorial plaques, so that visitors did not tread on memorials [2].
It appears the precise location for the grave was not identified to the Petitioner prior to the interment on 29 June 2023, other than It was to be in the confined middle row and surrounded on all sides by other interments [3]. At the time of the interment, the proximity of the petitioner’s father’s grave plot to neighbouring plots had been obscured by a green carpet laid over the neighbouring plots. It later became apparent that there was insufficient space to tend the plaque laid on the plot without stepping on neighbouring plaques, and there was evidence that the petitioner’s father’s plaque had been trodden on [4].
With regard to the discretion afforded to the Chancellor, Verduyn Ch. cited two judgments of Eyre Ch. – Re St Chad Pattingham (2015) Coventry Const. Ct. (at 2) and Re St Mary, Haseley (2009) Coventry Const. Ct. Overall, he considered that the mistake as to the arrangement of the plots, the impact on the tending to this grave, and the consequences for the family members, especially the widow, justified an exhumation and reinterment on this occasion and accordingly granted a faculty.
[Re St. Nicholas Codsall [2023] ECC Lic 2] [Top of section] [Top of post].
Re Rochdale Cemetery [2024] ECC Man 1 The petitioner’s wife had died in 2019 and had been buried in the grave of her parents in Rochdale Cemetery. The petitioner had hoped to be buried in the same grave, but arguments had subsequently arisen between the petitioner and his wife’s family as to who had a right to be buried in the grave. The petitioner therefore applied for permission to have his wife’s body exhumed so that it could be buried in a new grave where the petitioner could also be buried in due course. Ch. Jones directed via the Registrar that the parties consider mediation, although “[i]n one sense it did not go well and descended into a shouting match (THC letter dated 12 July 2023)”, and “the mediation was somewhat side-tracked into a dispute about whether the Petitioner had deliberately claimed title to the Cannon Plot* knowing that he was not entitled to the plot [5].
(* “in the present case, the Cannon Plot being on consecrated land is subject to the Faculty Jurisdiction although it is in a cemetery owned by Rochdale Borough Council. In general, therefore any disturbance of human remains in consecrated places of burial requires the authority of a faculty” [21].)
The Petitioner is not from a traveller family, although until her death, he was happily married for 57 years to Annie Cannon who was from a traveller family, and with whom he had four children. Members of the petitioner’s wife’s family, who would consider themselves to be part of the traveller community, objected to the petition [9].
The Chancellor was satisfied that the petitioner’s wife had wanted to be buried with the petitioner and there had been a mistaken belief by both of them that they would be entitled to be buried together. It was therefore appropriate for a faculty for exhumation and reinterment to be granted to the petitioner. [Re Rochdale Cemetery [2024] ECC Man 1] [Top of section] [Top of post].
Re St. Mary Catcliffe [2023] ECC She 3 The petitioners’ father died in 1993. His body was cremated and his ashes were interred in the churchyard. The petitioners’ mother died in 2021. The petitioners wished to fulfil their mother’s request before her death; regretting that she had had her husband’s ashes interred in the churchyard, she wished her husband’s ashes to be exhumed following her death, and scattered with her own ashes in a favourite place.
The Chancellor was satisfied from enquiries made of the incumbent, that Mrs Tonks’ remains could be interred in the churchyard at Saint Mary’s Catcliffe with those of her late husband should the Petitioners wish this. However, she was not satisfied on the evidence available, that the remains of Mr Tonks could be exhumed appropriately after such a passage of time [4].
The Chancellor refused to grant a faculty. There were no sufficiently exceptional circumstances to justify an exhumation, particularly after such a long lapse of time between the two deaths [5]. [Re St. Mary Catcliffe [2023] ECC She 3] [Top of section] [Top of post]
Re William Rudd Wilson, Deceased [2024] ECC Car 1 In 1978, the petitioner’s son, aged 2 years and ten months, had died and had been buried in plot 126 in Whitehaven Cemetery. In 1997, the petitioner’s former father-in-law had died and his family, without the involvement of an undertaker or the burial authority, had interred his ashes by pouring them into a shallow hole in the same plot.
It had always been the wish of the petitioner to be buried with his son, but the shallow interment of his former father-in-law’s ashes now prevented this. The petitioner therefore requested permission for his father-in-law’s ashes to be exhumed and reinterred in another plot in the cemetery (Plot 563) owned by the petitioner’s former wife. The burial authority were satisfied that the ashes could be exhumed intact.
The Chancellor decided that there were exceptional circumstances justifying the grant of a faculty: there had been a mistake by the petitioner’s father-in-law’s family, in that they had not appreciated the consequences of preventing further interments in plot 126. Also, it was desirable to move the ashes of the petitioner’s father-in-law to plot 563, which was a family plot where the remains of the petitioner’s former mother-in-law and her son had already been interred. [Re William Rudd Wilson, Deceased [2024] ECC Car 1] [Top of section] [Top of post]
Designation of closed churchyard
Re All Saints Childwall [2023] ECC Liv 4 The petitioners sought to reposition the war memorial on a wall at the west end of the church, and as such, it will no longer be exposed to the elements in the open porch [1]. Knifton Dep. Ch. had little difficulty in concluding that, in answering the Duffield questions, he was satisfied that the proposal would not result in significant harm. In his judgment:
“[13]. the proposal will benefit the church as not only will the memorial no longer be exposed to damage caused by the weather but will be able to be a focal pointing Remembrance services as well as for quiet refection in remembering those who made the ultimate sacrifice in the two world wars”.
The Deputy Chancellor granted a faculty, significantly, on the eve of Armistice Day. [Re All Saints Childwall [2023] ECC Liv 4] [Top of section] [Top of post]
Re St. Andrew Kinson [2024] ECC Sal 3 The petitioner applied for a confirmatory faculty in respect of a memorial which had already been installed in the churchyard. With the assistance of the stonemasons, the petitioner consulted the then-incumbent on a proposed memorial design; the design was outside the Churchyard Regulations, most notably in its shape and carvings. The incumbent proposed a compromise, which nevertheless still fell outwith the Regulations [3].
Although the incumbent and the parish administrator approved a memorial to the design worked up by the stonemason, at no point were they offered the written description of the proposed design which now features in the petition for a confirmatory faculty [4].
The Deputy Chancellor considered that there was an incongruity between the stone and the other stones in the churchyard surrounding it. For pastoral reasons, however, the Deputy Chancellor granted a faculty, but subject to conditions that all coloured paint should be removed from the memorial and that numerous personal artefacts on the grave should be removed within three months and should not at any time be replaced with others.
The faculty is subject to conditions, which arise out of (but go slightly further than) the compromise proposals, and compliance with these conditions is mandatory if the memorial stone is to remain in place [15]. Indicating the seriousness of these conditions, Willink Ch. directed that such works were to be carried out within three months of the grant of the faculty. If not, the Archdeacon is at liberty to apply for a restoration order which, if granted, would require removal of the stone [18]. Secondly, stressed that “no additional articles will be introduced (other than the memorial itself) to, or removed from, the church or churchyard”, which the petitioner had undertaken to do; however, this had not been complied with in practice [19].
A Postscript reminded incumbents that their authority to approve memorials only extends to those within the Churchyard Regulations as they apply at the relevant time [22]. Further, “stonemasons must understand that while the assistance they offer to the bereaved is valuable, it is no part of their role to seek to persuade an incumbent into permitting any particular memorial to be introduced into a churchyard” [23]. He added:
“They are independent professionals who are expected to understand and respect the faculty jurisdiction and the rules and practices concerning memorials in churchyards. They are ultimately responsible if a memorial which does not comply with the Regulations is installed in a churchyard without a faculty, so they must be prepared to exercise their own professional judgement”.
[Re St. Andrew Kinson [2024] ECC Sal 3] [Top of section] [Top of post]
Re St. Luke Chelsea [2024] ECC Lon 3 The Petitioners in this case are the Rector of St Luke’s Chelsea (“the Rector”) and the Senior Project Manager Royal Borough of Kensington and Chelsea Council (“KC”). To celebrate the centenary of the birth of the sculptor Sir Eduardo Paolozzi (1924-2005), they proposed to erect in the Dovehouse Green public gardens in Chelsea his 2m high sculpture depicting the head of Oscar Wilde [1,2].
Dovehouse Green is a public garden managed by KC as public open space which KC wishes to support access to open space and opportunities for exercise and recreation. It was formerly the burial ground of the parish of St. Luke and is therefore consecrated, the history of which is summarized in [8, 9]. It is not attached to St. Luke’s Church and its churchyard.
There was one objector, who argued that (a) the proposal had not been the subject of proper consultation or public notice; (b) the sculpture was aesthetically unacceptable; (c) the moral character Oscar Wilde made the location of the sculpture in consecrated ground offensive; (d) the work of Wilde was lightweight and of no real artistic significance; (e) the sculpture was too large and cumbersome for the site; and (f) the local authority should not be contributing public money to the project [17].
The Chancellor rejected the arguments and granted a faculty. [Re St. Luke Chelsea [2024] ECC Lon 3] [Top of section] [Top of post]
[On 16 January 2024, St Luke’s posted this update on the statue, which gives an indication of its form and size]
Re St. Anne Stanley [2024] ECC Liv 2 The proposal was to replace the church organ’s current tuba rank with the rank from the redundant organ at St Elphin’s Church Warrington, which would be on a long-term loan, and also to install a small booster chest. The Deputy Chancellor granted a faculty.
[Re St. Anne Stanley [2024] ECC Liv 2] [Post] [Top pf section] [Top of post]
See Re St. Bartholomew Lower Sapey [2024] ECC Wor 3
- Burial Act 1853 (Notice): Order giving notice of the discontinuance of burials in: in Tottenham Park Cemetery, Dodsley Place, Montagu Rd, London N9 0HU.
- Burial Act 1853 (Final) Order prohibiting further burials in: 1. St Stythians New Churchyard, Stithians, Truro, Cornwall; 2. St Michael and All Angels Churchyard, Stoke St Michaels, Somerset; 3. St John the Divine Church Churchyard, Menston, Ilkley, West Yorkshire.
CDM Decisions and Safeguarding
CDM Decisions
Written determinations of disciplinary tribunals hearing complaints brought under the CDM, together with any decisions on penalty are published by the Church of England; included are judgments from the Arches Court of Canterbury and the Chancery Court of York where determinations have been appealed. The majority of complaints that are made under the CDM are resolved by the bishop, archbishop, or President of Tribunals, without having to convene a tribunal.
Penalties by consent
A 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, paragraph 312, but before this date, as with The Right Reverend Peter Hullah. 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.
Name: The Revd DANIEL LANGDON-GRIFFITHS
Diocese: Liverpool
Date imposed: 23rd Feb 2024
Relevant CDM section: 8(1)(d)
Statutory Ground of Misconduct: Conduct unbecoming & inappropriate to the office & work of a clerk in Holy Orders
Penalty: Removal from office and revocation of licence & rebuke (with effect from 1st March 2024)
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.
- Submission by Women and the Church (WATCH) regarding the appointment of Diocesan Bishop, [Post on Press Release], (11 April 2024)
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 6 June 2024.
Recent summaries of specific issues that have been considered in the consistory courts include:
Reordering, extensions and other building works
- Pew replacement in St Edmundsbury Cathedral, one of the last Church of England cathedrals to replace its pews with chairs, (2 April 2024).
- Towards “net zero”, a cautionary tale, experience with air source heat pumps. (3 April 2024).
- Sanctions imposed for illegal boiler installation, wilful disregard of faculty jurisdiction. (17 April 2024).
General/Miscellaneous
- Contempt and use of documents in CDM proceedings, an analysis of the Ruling on paragraph 309 Clergy Discipline Measure 2003: Code of Practice by de Mestre Ch. concerning the possession and use of documents relating to the proceedings by third parties and the provision of these documents to them by the Complainant, 8 April 2024.
- Retirement of Dean Richard Peers, a Press Release issued by Llandaff Cathedral on 31 March 2024; a segue to Dean Richard Peers CDM decision (22 March 2024); and a prequel to New Dean of Llandaff Cathedral announced, (7 April 2024).
[Top]
Updated: 1 May 2024 at 07:26.
Notes on the conventions used for the navigation between cases reviewed in this post are summarized here.
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