Review of the ecclesiastical court judgments during November 2024
The five consistory court judgments circulated in November included Exhumation and Churchyards and burials. This end-of-year review also includes CDM Decisions and Safeguarding; Privy Council Business; CFCE Determinations; and Links to other posts relating to ecclesiastical law.
Re St Laurence Ansley [2024] ECC Cov 3 The petitioner sought
exhumation of the cremated remains of her late husband who had died in 2012and the ashes interred in Ansley churchyard in 2015; they would be reinterred in Hartshill Cemetery, citing dissatisfaction with the upkeep of the churchyard and difficulty of access to the grave. Glyn Ch, noted “It is quite clear it is intended that in the fullness of time [the Petitioner’s] cremated remains will also be interred with her husband’s, as there is a space on the right of the memorial stone for an additional inscription [2]. The memorial stone also has a holder for flowers.
Following the principles laid down in Re Blagdon Cemetery [2002] Fam 299, the Chancellor determined that there were no exceptional circumstances in this petition to justify the grant of a faculty.
“[10]. In this matter it is for the Petitioner to persuade me, on a balance of probability, that there is an exceptional reason that would justify overturning the presumption of permanence of burial. I regret to say that the arguments presented by [the Petitioner] do not come close to persuading me that a faculty permitting exhumation should be granted in this case. The petition is therefore dismissed.”
[Re St Laurence Ansley [2024] ECC Cov 3] [Top of section] [Top of post].
Designation of closed churchyard
Re St. Lawrence Stoak [2024] ECC Chr 2 The petitioners applied for a confirmatory faculty to retain a memorial to a member of the family [1]. The memorial had been installed without permission and did not comply with the churchyard regulations. The memorial was in the form of a wedge-shaped plinth of polished black stone and large enough to allow the addition in the future of further inscriptions in respect of other family members, it being their intention to create a family plot. The PCC did not support the petition, as they had in recent times been striving to make sure that the churchyards regulations were complied with, notwithstanding breaches in the past [2, 16]. The DAC did ‘not recommend’ that the Chancellor granted the petition [17].
Turner Ch. stated:
“[30]. Chancellors have, in recent years, taken differing views as to the approach to be taken where things outside the scope of regulations are sought. Some have required ‘exceptional circumstances’ to be demonstrated by petitioners seeking departure from regulations.
[31]. The current preferred approach seems to be that favoured by the Chancellor in Re St John’s Churchyard, Whitchurch Hill [2014] Oxford Const. Ct, McGregor Ch: ‘As is the case with any petition, the burden of proof lies on the petitioner to show why a faculty should be granted to authorise the particular proposal set out in the petition’.
[32]. That said, and mindful there may be no presumptive preference for what is in the regulations, their existence is, of course, a relevant factor – often highly relevant and, doubtless, on some occasions determinative. They have been prepared and publicised for good reason. Others have ‘played by the rules’ and may expect those who follow to do likewise”.
The Chancellor determined that the petitioners had failed to provide a sufficient justification for retaining the memorial, or for displacing the parish’s desire to uphold the regulations [38]; he therefore refused to grant a faculty and ordered that the petitioner should remove the unauthorized plinth and its concrete base [41]. [Re St. Lawrence Stoak [2024] ECC Chr 2] [Top of section] [Top of post]
Re St. James Newchapel [2012] Lichfield Cons. Ct., Eyre Ch The petitioner wished to place a memorial to her late brother on the family grave in which his cremated remains had been interred together with the cremated remains of his mother and step-father [1]. The gilt lettering on the polished black granite headstone and image “take up the entirety of the headstone and there does not appear to be any space for further details to be inserted on it” [2].
The area of soil contains or has contained three temporary memorials wholly outside the Regulations and “those will need to be removed (if that removal has not occurred already)”[3]. The Regulations indicate that polished black granite bearing gold lettering is not normally permissible. As to shape the Regulations provide for vertical stones. They do, however, state that faculties might be granted for stone vases of good design [6].
The Petitioner and one of the deceased were members of a large family “and it is a sad feature of this case that there is disagreement among the members of the family” [[7]. The DAC commented that it would support a memorial in the form of a 12” vase but does not the proposed memorial [11]. In Re St. Mary: Kingswinford [2001] 1 WLR 927 (at 38) Mynors Ch. summarized circumstances in which a faculty could be given which does not accord with the Chancellor’s Regulations [21]:
“However, at least some non-standard memorials will be approved. This is likely to be for one of four reasons. The first is where a proposal is for a specially designed memorial which may be non-standard, but which is a fine work of art in its own right. [t]he second is where a proposal relates to a category of memorial that may be suitable in some churchyards but not in others, so that it would be inappropriate to issue a general authorisation…The third situation…is where it is of a type, which may or may not be desirable in itself, of which there are so many examples in the churchyard concerned that it would be unconscionable to refuse consent for one more. The fourth reason for approval is where a stone might be aesthetically or otherwise unsatisfactory, but where there are compelling personal or other circumstances suggesting that a faculty should nevertheless be granted.”
Eyre Ch. also noted that account must be taken of the legitimate expectations of “those who have buried their departed relatives in a particular churchyard and of those who are to be buried therein…Again those who have paid fees for the reservation of grave spaces have a legitimate expectation that the character of the churchyards in question will be kept in accord with the Regulations” [21]. However, rhe Chancellor refused to allow a wedge shaped stone, but said that in the circumstances he would permit “a 12” cube in polished black granite and bearing the proposed words in gold lettering”. [Re St. James Newchapel [2012] Lichfield Cons. Ct., Eyre Ch] [Top of section] [Top of post]
[Note: This was the only judgment referred to in the Ecclesiastical Judges Association Review of “non-standard cases” that had not been covered previously by L&RUK].
Re St. James the Great Radley [2024] ECC Oxf 7 In August 2024, the Chancellor had granted a faculty for the reservation of a grave space for a Mrs. Bowers, even though there were only enough graves left for the next three years, Re St. James the Great Radley [2024] ECC Oxf 5. At the same time as Mrs. Bowers had applied to reserve a grave, a Mrs. Parke, aged 83, who had lived in the parish for 25 years, had applied to reserve a grave next to the grave of her husband, but the processing of her application had been delayed for various reasons.
Since the granting of the faculty to Mrs. Bowers, the Parochial Church Council (“PCC”) had discussed passing a resolution not to support any further reservations. In fact no resolution had been passed, and the matter was on the agenda for the PCC meeting in November 2024. The Chancellor decided in the circumstances it would not be appropriate to treat Mrs. Parke’s application other than in the same way as Mrs. Bower’s application, and he therefore granted a faculty, subject inter alia to a condition requiring the PCC to pass a resolution not to support any further grave space reservations. [Re St. James the Great Radley [2024] ECC Oxf 7] [Top of section] [Top of page].
Re St. Michael and All Angels Hoole [2024] ECC Bla 4 The petitioner’s husband had died and was buried in the old part of the churchyard in 2020. In 2021, the petitioner applied for a faculty to reserve the adjoining grave space for her two sons, intending that the two graves would form a double family grave. She subsequently withdrew the petition. However, she arranged, without seeking permission, for kerbs to be set around her husband’s grave and the adjoining one, and for stones, pebbles and a planter to be laid within the kerbs, in anticipation of applying in due course for the reservation of the grave adjoining that of her husband’s.
In 2022, the Parochial Church Council (PCC) passed a resolution not to support any more grave reservations. The Petitioner later applied for two faculties: (1) to retrospectively authorise the kerbs and stones; and (2) to reserve the grave adjoining her husband’s grave for herself.
Notwithstanding the PCC resolution, and for the reasons stated in the judgment, the Chancellor granted a faculty for the reservation of the grave exclusively for the petitioner, conditional upon the petitioner first removing the kerbs and stones and re-grassing the area at her own expense. [Re St. Michael & All Angels Hoole [2024] ECC Bla 4] [Top of section] [Top of page]
See post by Shirani Herbert, Balancing heritage and necessity: Consistory Court jurisdiction in managing churchyard trees, (21 November 2024).
- Burial Act 1853 (Notice): Order giving notice of the discontinuance of burials in: St Mawnan Parish Church Churchyard, Falmouth, Truro, Cornwall; St Mary the Virgin Church Churchyard, Woodford Halse, Northamptonshire; St Julian’s Churchyard, Rectory Road, Shoreham-by-Sea, West Sussex; Gaydon St Giles Church, Churchyard, Gaydon, Warwickshire.
CDM Decisions and Safeguarding
The Revd F – October 2024: Decision, (October 2024).
The Revd Canon David Tudor – October 2024: Decision, (October 2024).
The Revd Geoffrey Baulcomb: Preliminary Rulings, (24 June 2024); Decision, (28 August 2024).
Penalties by consent
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 CHRISTOPHER PENFOLD
Diocese: Canterbury
Date imposed: 25 August 2024
Relevant CDM section: 16(1)
Statutory Ground of Misconduct: 8(1)(d) – conduct unbecoming or inappropriate to the office and work of a clerk in Holy Orders.
Penalty: Removal from office and prohibition from exercising any of the functions of his Orders for 4 years (with effect from 8 August 2024)
Safeguarding
Further fall-out from the Makin Review, On Friday (22 November), the Religion Media Centre reported that the Diocese of London had announced that three priests named in the Makin Review have had their Permission to Officiate withdrawn pending investigation. One of the three has also had his PTO withdrawn by the Diocese of Gloucester. (24 November 2024).
The Archbishop and the Makin Review, On 7 November 2024, Channel 4 News bounced the Church of England into publishing an early release of the independent review led by Keith Makin in advance of its scheduled release on 13 November. In a statement issued by Lambeth Palace at 2 pm on Tuesday 12 November, Archbishop Welby said: “I believe that stepping aside is in the best interests of the Church of England”. The exact timing of his resignation will be decided once a review of necessary constitutional and Church obligations has been completed, including those in England and in the Anglican Communion. Whilst the Makin Review was the trigger for recent events, its focus is necessarily prospective and indicates the actions which should be taken by the Church. (17 November 2024).
Sir Jamie Colman and the Revd Sue Colman to “step back” after Makin Report, The Makin Review concluded: “It is likely, on the balance of probabilities, that both Jamie and Sue Colman had significant knowledge of the abuses in the UK and Africa, given their positions as trustees.” In a statement following the publication of the Makin Review, the Diocese of Winchester has asked Lady Colman, an associate minister at St Leonard’s Church, Oakley, to step back from all ministerial duties while it reflects on the review’s findings and works with the National Safeguarding Team to take steps to manage any associated risk, (17 November 2024).
“Safeguarding Sunday” – A letter from the Lead Bishop, The Rt Rev Joanne Grenfell, Bishop of Stepney and Lead Bishop for Safeguarding, has issued a pastoral letter in anticipation of Safeguarding Sunday, 17 November 2024, (16 November 2024).
Makin Review, Summary of Recommendations, The 253-page Review includes eight Key Recommendations [Review paragraph numbers in black] and twenty seven Specific Recommendations directed at particular concerns [numbered in blue] (13 November 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 applications scheduled for review by the Commission (Form 8s) are now up to date, and the reported decisions of the Commission (Form 10s) re now available for 18 July 2024and 5 September 2024. The next meeting will be on Thursday 12 December 2024.
Recent summaries of specific issues that have been considered in the consistory courts include:
Reordering, extensions and other building works
- Proposed demolition of St Paul’s Truro, (7 November 2024).
Churchyards
- Balancing heritage and necessity: Consistory Court jurisdiction in managing churchyard trees, (21 November 2024).
- Churchyard Regulations – “non-standard cases”, (22 November 2024) and Churchyard Memorial Regulations – omissions explained, (12 November 2024).
General/Miscellaneous
- Makin review of the Smyth case published, (7 November 2024).
- Behind the Stained-Glass: institutional racism in the Church of England, (6 November 2024).
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Updated: 29 November 2024 at 13:52
Notes on the conventions used for the navigation between cases reviewed in this post are summarized here.