“We know your taste for curious quips, For cranks and contradictions queer“…

…. and in the recent judgment Re St. Mary Fawkham [2024] ECC Roc 1 Willink Ch. evinces the solution to the question “When is a petition not a petition?“, in which circumstances “a memorial”  (in a churchyard) had to be distinguished from the broader (legal) meaning of “a memorial” . The circumstances of the case itself will be familiar to canon lawyers – the Petitioner wished to install a memorial in the churchyard in memory of his late wife. The proposed memorial was a headstone and kerbs, the proposed stone being polished paradiso granite, described as “a swirling mixture of pink, grey, red and black colours in a strongly-defined tortoiseshell-type pattern.”

The PCC objected to the proposed type of memorial and the DAC did not recommend the grant of a faculty. The concerns were as to the colour, the polished finish and the inclusion of kerbstones. The petitioner was unhappy that the process appeared to encourage responses in opposition, but not responses in support of the petition. He therefore submitted a petition, signed by a number of people who put their names to a statement in support [7].

Willink Ch. observed:

“[7]. This is by no means the first time that a consistory court has been provided with such a petition. (Rather confusingly, such petitions have historically not been called “petitions”, perhaps to avoid confusion with the originating process in the consistory court which is also called a petition. Unhelpfully, especially in a case such as this one, they have instead been called “memorials”.) There is law, binding on me, on their admissibility as evidence. This is set out as follows, in Halsbury’s Laws of England, vol 34, para 1087, fn 13:

“Supporting or opposing memorials or petitions purporting to be signed by petitioners as to which there is no proof of the signatures or evidence of the representations made to those who sign are inadmissible: Rector and Churchwardens of Capel St Mary, Suffolk v Packard [1927] P 289; Re Christ Church, Chislehurst [1947] 1 All ER 146 at 150–151, [1973] 1 WLR 1317 at 1321. This statement of the law was approved by the Court of Arches in Re Bentley Emmanuel Church, Bentley [2006] Fam 39 at [26].” [the Chislehurst citation should read [1974], not [1947]]”.

[8]. It is notable that this extends to both supporting and opposing petitions (as I will call them). Of course, when there is opposition to a proposed faculty, the court is bound to enquire whether the person opposing is an “interested person” for the purposes of Part 10 of the Faculty Jurisdiction Rules. For these purposes, an individual will be an “interested person” if they are one or more of the following: any person who is resident in the ecclesiastical parish concerned; any person whose name is entered on the church electoral roll of the ecclesiastical parish concerned but who does not reside there; or any other person or body appearing to the chancellor to have a sufficient interest in the subject matter of the petition (Rule 10.1(a), (b) and (h)).

[…]

[10]. I must conclude that the petition is inadmissible as evidence as a matter of law. If I were wrong about that, I would conclude that I could place very little if any weight on it when considering the relevant legal test in deciding whether to grant a faculty”.

The petitioner submitted further material which was considered by the Chancellor [11, 12]. In response to the assertion of both the PCC and the DAC “which appeared to suggest that the mere fact that the proposal is outside the Churchyard Regulations is a reason why a faculty should not be granted” he stated:

“[16]. This is to misunderstand the position. There is no right in law to any memorial at all; any memorial must be authorised by the court. Under the system currently in place, there is in effect a delegation of authority to the incumbent to permit a memorial which complies in all respects with the Churchyard Regulations. If a proposed memorial does not so comply, the person concerned cannot take advantage of the delegated authority; and must petition for a faculty. It would arguably be wrong for the fact of non-conformity with the Regulations to be both (a) the reason why a faculty must be applied for, and (b) a reason to refuse a faculty once it has been applied for. Some might say that that would smack of Kafka”.

In balancing the petitioner’s submission against the views of the PCC and the DAC, the Chancellor was persuaded that there was a sufficiently good reason to permit a headstone in the proposed material of paradiso granite: he accepted that the colour of this particular stone has significant resonances for this particular family [24]. However, he was not persuaded there was a good reason for the proposed kerbstones; nor for the stone to be mirror-polished or polished beyond a good smooth finish.