Review of the ecclesiastical court judgments during August 2025
The three consistory court judgments circulated in August 2025 concerned aspects of Exhumation of which there a separate post on Re Bingham Cemetery (No. 2) examining Res judicata, v infra. This month’s review also includes: CDM Decisions and Safeguarding; Privy Council Business; Other legal issues; Visitations; CFCE Determinations; and Links to other posts relating to ecclesiastical law.
Re Bingham Cemetery (No.
2) [2025] ECC S&N 3 In 2018, the petitioner’s mother had made an application to exhume the remains of her daughter (who had died aged 6 months) and husband from a consecrated area of Bingham Cemetery, which had been the usual place for burial of those who died in the village of Gamston, a few miles away. The petition had been refused. The petitioner and her husband had bought a plot for themselves in Wilford Hill Cemetery and a plot next to it, in which the remains of the petitioner’s mother had been interred since the previous petition, rather than in the grave of her husband and daughter at Bingham. The petitioner therefore now sought permission for the exhumation of the remains of her sister and father and for the remains to be interred in the same grave as her mother at Wilford Hill. The judgment includes a discussion of the doctrine of res judicata, but aside from that the Chancellor could find no exceptional circumstances to justify the grant of a faculty. [Re Bingham Cemetery (No. 2) [2025] ECC S&N 3] [Post] [Top of section] [Top of post].
Re Newark Cemetery [2025] ECC SN 2 The petitioner sought permission for the exhumation his mother from consecrated ground in Newark cemetery, where her body was buried after her death in 1992 [1]. Burial plots in Newark Cemetery were bought for both the petitioner’s mother and father where they lived their married life, but after his wife’s death, her father returned to Hong Kong; he died and was buried in Tai Po in 2011. The Chancellor was informed that his dying wish was that his son would bring his remains to Hong Kong ‘so they could be reunited again’ [3]. The requisite consents are in place, from the Petitioner’s sisters, the authorities in Newark and those in Tai Po [4].
Ockleton Ch. referred to Re Bingham Cemetery [2018] ECC S&N 1 which indicated a a presumption against exhumation. It was for the Chancellor to determine whether an exhumation should be permitted, and they would make that decision by considering whether it was right to make an exception to the presumption of permanence [4].
In the present case it is not suggested that there was any initial mistake in the choice of a the burial of the petitioner’s mother: “far from it, because there was an investment in the place and in the right of her husband to be buried next to her [5]. All that happened since appeared to be that her husband changed his mind about where he wished to be buried, and asked that her remains be put with his. Even though that had been his dying wish, it is clear from the passage of over a decade since his death that the family have not regarded it as a priority. The proposed move will not make a substantial difference to their ability, as a family, to visit her grave [5].
A factor counting against exhumation in any case in which it applies is the passage of a considerable time since the burial:
“[6]. …it is certain that there will have been a considerable amount of decay of her body and of the coffin in the period of over thirty years since her death. The proposal is that the remains should be exhumed and cremated before being transferred to Hong Kong for burial of the ashes, or rather, the ashes of what can now be recovered by way of remains, together with whatever is unavoidably mingled with them .The mechanics only need to be expressed in that realistic way for it to be appreciated that the proposal is not one without difficulty, or one which can readily be carried out with proper respect for [the] remains.”.
The Chancellor refused to grant a faculty. The petitioner’s mother’s remains had been buried for thirty years and exhumation would be likely to be difficult due to the effects of decay. Moreover, the normal presumption of permanence of burial applied, unless there were sufficient exceptional circumstance to justify exhumation. He concluded:
“[8]. In my judgment there is simply nothing in this Petition that would merit disturbing [her] remains either in the way suggested or at all. The presumption of permanence applies. Her body rests in the peace of Newark Cemetery, her place of burial properly maintained by the authorities there. The Petitioner, and the rest of the family, have fulfilled their duty to their father by making this Petition, but, for the reasons I have given, it must be refused”.
[Re Newark Cemetery [2025] ECC SN 2] [Top of section] [Top of post].
Re Ewhurst Cemetery [2025] ECC Gui 2 The petitioner’s parents had always intended to be buried in the same grave. Her father had died and was buried in Ewhurst Cemetery in 1994. Her mother died in November 2024 and on the day of the funeral it was found that it was impossible for her father’s grave to be dug for the interment of her mother as the ground was waterlogged.
After receiving this information at this very late stage, the family had no choice but to return her mother to the funeral directors in North London after the ceremony, pending a decision as to how to move forward. The burial then had to be postponed until a drier plot could be identified [4]. It was therefore necessary for the petitioner’s mother to be buried in a another grave in the cemetery.
The petitioner later applied for a faculty to authorize the exhumation of her father’s remains and for reinterment in the grave of her mother. After reviewing the principles governing exhumation petitions, In re Blagdon Cemetery [2002] 4 All ER 482, Court of Arches, and the relevant case law [7] to [11], Whitehouse Ch. commented:
[12]. The facts giving rise to this Petition are unusual, even if they are not unique. There is no exhaustive list of factors governing the granting of petitions for exhumation and chancellors must apply the general principles to particular facts in deciding whether there are exceptional circumstances which justify the making of an exception from the norm that Christian burial is final.
[13]. In this case it cannot have been known at the time of the burial the petitioner’s father that flooding would prevent her from being buried with him in due course. This was the expectation for two decades. As I understand it, in fact, had her mother died at a different time of the year, when conditions were drier, her burial with him would have been possible. However, that is not what happened.
[…]
[15]. … Enquiries have been made of the Clerk to the Parish Council and she has confirmed that there are two other graves in this area that are potentially affected by flooding: in one case it is an old grave with no agreement to inter any other family members in the grave, and in the second case it is already occupied by a man and wife. No further applications are expected.
Conclusion
[16]. In these unusual circumstances, I have concluded that there are special circumstances in this case which justify the making of an exception from the norm that Christian burial is final.
[17]. This Petition is granted.
[Re Ewhurst Cemetery [2025] ECC Gui 2] [Top of section] [Top of post].
9 July 2025
- Burial Act 1853 (Notice): Order giving notice of the discontinuance of burials in St Mary’s Churchyard, Church Street, Ross-on-Wye, Herefordshire.
- Burial Act 1853 (Final) Order Subject to the exceptions below, burials should be discontinued forthwith in: Christ Church Cemetery, Kintbury, Berkshire; Kenwyn Parish Church Churchyard, Truro, Cornwall; St Mary’s Church Churchyard, Chigwell, Essex; St Mary’s Churchyard, Ditchingham, Norfolk; St Nicholas Churchyard, Frankton, Rugby, Warwickshire, In pursuance of the Order in Council made on 6th May 2025 these representations have been published and taken into consideration by a Committee of the Privy Council.
- Burial Act 1855 (Variation Order), under S1 of the Act, “Notwithstanding anything in the Order in Council made under the Burial Act 1853 on 11th December 1854, directing the discontinuance of burials in the Churchyard of St Mary’s, Ottery St Mary, Devon, an exception be added in that the one further burial may be allowed of Lord Coleridge within the Churchyard, as specified in the Petition”.
CDM Decisions and Safeguarding
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.
CDM Decisions
- The Revd Anne-Marie Marsh (July 2025): Decision [See also Systemic failures and pastoral vulnerability in a clergy discipline case, (1 August 2025).
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 Reverend MICHAEL DAVID SIVA ERLEWYN-LAJEUNESSE
Diocese: Winchester
Date imposed: 25 July 2025
Relevant CDM section: 16(1)
Statutory Ground of Misconduct: 8(1)(d) Conduct unbecoming & inappropriate to the office & work of a clerk in Holy Orders
Penalty: Limited Prohibition for 5 months
Name: The Revd PAUL KEVIN TRATHEN
Diocese: St Albans
Date imposed: 24th July 2025
Relevant CDM section: 16(1)
Statutory Ground of Misconduct: 8(1)(a)
Penalty: Removal from office and limited prohibition for 3 years
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 2025 is here and for 2026 is here. The next meeting will be on Thursday 4 September 202
Recent summaries of specific issues that have been considered in the consistory courts include:
Exhumation
- Res judicata: Re Bingham Cemetery (No. 2), (18 August 2025).
General/Miscellaneous
- DBS software data breach, (29 August 2025).
- Redress Scheme data breach by Kennedys Law LLP, (27 August 2025).
- Disciplinary Tribunal, Church in Wales, Rev Ryan Forey, (25 August 2025).
- Systemic failures and pastoral vulnerability in a clergy discipline case, (1 August 2025).
Safeguarding
- Conversion Therapy – New Wine, New Wine has issued a following statement taking responsibility and apologising to the Rev Dr Tanner-Ihm for “what can only be described as conversion therapy”. (5 August).
- Bishops’ briefing on conversion therapy, This post revisits the paper Briefing and reflections on Conversion Therapy, presented to the House of Bishops for information and as a briefing on the question of Conversion Therapy, (4 August 2025).
- Systemic failures and pastoral vulnerability in a clergy discipline case, (1 August 2025).
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Updated: 30 August at 17:07.
Notes on the conventions used for the navigation between cases reviewed in this post are summarized here.