In a guest post, Shiranikha Herbert looks at the faculty jurisdiction and the disposal of “church treasures’, with particular reference to a recent consistory case.
Introduction
Church of England churches own a store of moveable assets which have come to be called “church treasures” and are highly prized. They may consist of ancient artefacts, silver, items of historic interest and works of art, and may include secular items which have been deposited in churches.
As “Treasures on Earth” – A Report by a Working Party of the Council for Places of Worship (General Synod 08132 (1973)), quoted in 2014 by the Court of Arches in Re St Lawrence Oakley with Wootton St Lawrence [2014] Court of Arches, [2015] Fam 27 [35], stated:
“One of the most excellent ambitions of Christians … has been to express their faith in the language of the arts – in architecture, sculpture, painting, mosaic, music and poetry – and thus to build houses of God which are symbols of that faith, thereafter furnishing them with objects as nearly worthy of the worship of God as human skill can make them. The triumphant realisation of that godly ambition by men in every age from that of the early Chistian church down to the present day has been instrumental in creating the great store of treasures owned by the churches …”
It may sometimes be tempting for a church struggling with financial difficulties to sell some of its treasures in order to fund its needs – perhaps to repair its roof or to modernise its heating system. On the other hand a church may find that one of its treasures has become more of a liability than an asset because the church cannot afford the expense necessary to retain its valuable treasure due to the costs incurred in storage, insurance and restoration.
However, church treasures may not be disposed of without the permission by way of a faculty granted by the Consistory Court. The Court of Arches had made it clear in Re St Lawrence Oakley that there was “a strong presumption against” the sale of church treasures and that a faculty should not be granted by the Consistory Court unless there were “sufficiently compelling” grounds to outweigh that strong presumption.
Re St Peter, Little Budworth
The dilemmas which parishes could face in regard to their church treasures and the issues which confront the Consistory Court when considering an application by a parish for a faculty to dispose of a church treasure were well illustrated by the Consistory Court of the Diocese of Chester in Re St Peter Little Budworth [2025] ECC Chr 1, when the churchwardens of Saint Peter’s Church, Little Budworth, a post-medieval Grade II* listed church, applied for a faculty to sell by auction one of its church treasures: a painting entitled “The Good Shepherd” by William Dyce (1806–1864), a Scottish-born painter who had been associated with the Pre-Raphaelite Brotherhood. [1]
The painting depicts a full-length portrait of Jesus Christ with a lamb in one arm and a crook in his hand, guiding sheep through a narrow opening into an enclosed field. It had been given to the church in 1924 by a parishioner, Brian Stock, in memory of a family member, James Henry Stock (1855–1907), who had been Member of Parliament for Liverpool Walton from 1892 to 1906. [2], [18].
For over 50 years the original painting had not been physically displayed in the church as it had been on loan to various museums. A reproduction had hung in the church for some time since the removal of the original. By 1977, the painting had been visibly deteriorating. It was believed that that was due largely to atmospheric conditions in the church. In 1978, the painting was sent to the Walker Art Gallery in Liverpool, where “minimal restoration” was carried out. The painting remained on loan in Liverpool until it was transferred to the Manchester City Art Gallery in 1987. It remained on loan there until 2024, when the parish was informed by the gallery that the painting was no longer wanted. [24]
The prospect of the physical return of the painting concerned the churchwardens and the Parochial Church Council, with the result that in December 2024, arrangements were made for the painting to be collected by the auctioneers, Bonhams, where it remained pending a decision as to its future. [24] Since then, the parish had explored alternative options for the display of the painting but had had no success. Several other galleries, including the Walker Gallery, the Aberdeen Art Gallery and the Victoria and Albert Museum which had been contacted, were not interested mainly due to lack of funds and budgetary constraints. [27] – [31].
In those circumstances, the Churchwardens of St Peter’s petitioned the Consistory Court for authority to sell the painting by auction at Bonhams. The petition was formally unopposed. The Church Buildings Council (“CBC”) had reservations about the sale but did not wish to become a party opponent. [1] [4]
The CBC said that its guidance entitled “Brief Guide to Disposals and Loans” (May 2024) should be given due consideration. That guidance made it clear that sales should be “sparingly exercised” and a strong justification needed to be made in order for the Chancellor to make a decision. The CBC did not feel a strong case had been made in the present petition. [5]
The Chancellor, Judge David Turner KC, observed that this was not one of those cases where the parish prayed in aid a particular financial crisis or existential “emergency” for the sale of the painting, which had not been displayed in the church for over 50 years. [32] [33] The churchwarden petitioners had concluded that they simply did not have the funds to appraise, and then implement, the complex conservation and restoration work that was plainly required. [34]
If the parish were to invest the sum needed to adapt the church for the purposes of storing a painting, the petitioners said that it would hasten the closure of the church and the withdrawal of parish ministry. [12] They were convinced that the necessary work to effect the required environmental changes and a “security upgrade” were unaffordable and, in any event, should not be prioritised over the undoubted need for maintenance and improvement generally to the fabric of the church building, the earliest parts of which dated back to 1490. [34]
The petitioners made clear their desire to insulate the roof void, replace the boiler and heating system, improve external paths, renew internal and external signage, and provide large print service books. [35] Given the fragility of parish finances, the very modest congregational profile and the indisputable existing fabric needs, the petitioners argued that it was simply not possible for them to provide and sustain the facilities required to reinstate the painting in the church. They said, “We cannot afford for a painting that has not been displayed for 50 years to be returned to Saint Peter’s.” [38]
The Diocesan Advisory Committee (“DAC”) was sympathetic to that reasoning and recommended the grant of the faculty sought. The DAC’s reasons were: that the painting was not original to the church building; that there was a reproduction on display and the sale of the original would not cause any visible change in the church; that the original had not been in the church for over 50 years; that the parish did not want the liability of having to keep the original in the church; that the environment in the church was not suitable for the original and the church was not financially resourced to upgrade its environment and security to make it more favourable for keeping the original there; that the parish was not financially resourced to carry out restoration to the painting; and that the parish had not been able to find another museum to take the painting on loan. [39], [40]
The Chancellor said that a great deal of jurisprudence had been generated around the disposal of church treasures, and the modern law was identified in the St Lawrence Wootten case. That case identified several matters of relevance, including the following. [41]
Church treasures should only be removed in the most exceptional circumstances. They were not “ordinary assets”. They belonged to the parishioners and were in the care for the time being of the current generation, who had a duty to have regard to their care for the future. They formed part of the original “story” of the church and those who worshipped, cared for and sought to benefit it. They were held in common not only with our predecessors, but also our successors. They were not to be idolised but were expressions of creativity and faith which still had a story to tell and a faith to express. [42(i)]
When it came to the consideration of sale, the starting point was a strong presumption against sale. In order for petitioners to succeed in overcoming that strong presumption, they had to demonstrate that there were factors of such weight, either individually or cumulatively, that they demonstrated that the grounds were sufficiently compelling to outweigh the strong presumption against sale. Jurisdiction to allow sales was to be “sparingly exercised”. [42(iii)]
“Financial need” falling short of “financial emergency” would seldom on its own outweigh the strong presumption against sale, but it could and must be weighed with any other factors favouring such sale. It followed that a critical or emergency situation would carry more weight than more normal (or near universal) pressures on parish finances. [42(v)]
Insurance and security were always matters of concern, but it was important to remember that there was no legal requirement to insure for full market value and that a determined thief might always succeed, despite whatever reasonable measures were put in place by a parish. The CBC’s guidance stated that any loss would “be of a treasured possession, not one measured in financial terms.” But it stated that, generally speaking, “parishes should not seek to dispose of valuable items merely because they could not afford full insurance cover.” [42(vii)]
The Chancellor concluded, essentially for the same reasons identified by the DAC that this was one of those comparatively rare cases where it could properly be determined that the “cumulative weight of individual factors” was indeed sufficient to outweigh the strong presumption against disposal by sale. [43]
The “regrettable reality” was, the Chancellor said, that 50 or more years ago it was the fact that the painting had begun to suffer harm by its presence in the (occasionally damp) church and that relocation had become a practical necessity. Two lengthy periods in leading galleries followed, the second ending in 2024. Neither of those galleries had expressed any wish to retain, let alone buy, the painting. Other galleries which had been approached had responded negatively to suggested options and were reluctant to “take on” new loans at all or expend resources on paintings they felt might not sit well in their public collections. [44]
The CBC’s guidance had made reference to “a perception that some museums are increasingly reluctant to act as repositories for treasures on loan from churches.” [45]
The Chancellor concluded that “disposal by loan” and “disposal by limited sale” had been properly and reasonably explored, but without success and that the point of request for “disposal by outright sale” had now been reached. [52]
The faculty sought was granted for sale by auction or private treaty by Bonhams at the best price reasonably obtainable. [53]
Shiranikha Herbert