In this guest post, Simon Hunter, of 3 Stone Chambers considers church ownership, trustees, and church membership
“You cannot be serious”, John McEnroe, Wimbledon, 1981
I’m not a particular fan of tennis. I don’t really know why, perhaps John Betjeman’s poem about Ms Joan Hunter-Dunn had something to do with it. But like it or not, one would have had to have been living under a cultural rock for more than 40 years to not know the most famous outburst perhaps in all sport. I think there was some controversy about chalk dust, but as I say, I’m not really a tennis fan. Since McEnroe’s cri de coeur a whole industry has grown up to check line calls, off-sides, l.b.w.s (now there’s a sport I can get behind).
However controversial they may be for players and fans alike, each of these sporting debates has one thing in common: the participants each agree, on each occasion, which is the right side of the line. The court is one side, the not-court is the other. The ball hits the pad just a little too high, or bounces a little outside leg. The disagreement is about where the ball was.
But in and out debates are not limited to sport. Each religious body has some sort of description that divides those who are members from those who aren’t. In some cases that will no doubt be simple. If you are on the list then you are in, if you are off the list then you are out. There may be disputes about whether you should be on the list, just like there may be disputes about whether the ball was in or out. But the list is the court, and off the list is the not-court.
Sometimes, however, a body’s descriptions of membership are credal: if you believe the following things then you are in, if you don’t then you are out. Here the window of potential argument is very different. Two factions might well agree that one group believes Point A, whilst the other believes its opposite. Their argument is about whether Point A is a part of the credal statement or not. One side is orthodox, the other heretical. What they disagree about is which is which, which side of the line is court, and which is not-court.
Just such a tennis-court argument was recently decided by Master Brightwell in the Chancery Division in Free Church of England Central Trust v Hanna [2026] EWHC 2260 (Ch). On its face, and for most of its first 100 paragraphs this is a pretty dry debate about the terms upon which certain properties, including a church building, are held by trustees in the context of what might, or might not, be a schism. But having got through that, the judgment goes on to consider the much more interesting issues of what it means to be a member of a church, and of the sorts of questions which might be justiciable in the context of this category of religious debate.
Background
The basic facts are these. The Free Church of England (“FCE”) was set up in the middle years of the 19th Century as a reaction against the then-rising tide of Tractarianism. It was an expressly anti-Anglo-Catholic organisation. Its principal constitutory document was and is a deed poll from 1863. A further deed in 1908 provided for all church property to be held by a then-unincorporated group called the Central Board of Trustees, the predecessor in title of the Claimant. Following a merger in 1927 with an American group, the Reformed Episcopal Church, a joint constitution was produced, and in 1928 the Central Board of Trustees adopted a Model Trust Deed setting out the terms on which they would hold properties following that merger. The Claimant was properly incorporated as a charity in 1941.
One of the congregations of the FCE was at Christ Church, Exeter. In 2003 or thereabouts, that congregation, along with a number of others, left the FCE following a dispute. Christ Church subsequently returned to the FCE fold. In 2023 a dispute again arose, with the Exeter congregation considering that the FCE leadership had abrogated the founding principles of the FCE. Whether it is right to say that Christ Church left the FCE, or that the FCE heretically diverged whilst Christ Church orthodoxically remained is very much an open question. But the end result is that Christ Church is no longer, at least not presently, considered to be a part of the organisation that is the FCE, of which the Claimant is the property-holding body.
This leaves the question as to what to do with the buildings in which the Exeter congregation have been worshipping. The FCE said that they belong to the FCE, with the Claimant acting as charity trustee. Christ Church Exeter said in contrast that the Claimant holds them as custodian trustee for the use of this particular congregation, with trustees of a local charity being the real charity trustees.
Four titles are in issue: two constitute the site on which the church is built. One constitutes a schoolroom or hall. The last is a residential property which has been used as a manse. Of these, the most significant is the Original Church Site, one part of the land on which the current church is built. That was the subject of a conveyance in 1911 that stated that the property was to be held:
“upon trust for the religious community known as the Free Church of England and to permit the same to be used held and enjoyed and applied under the name of “Christ Church (Free Church of England) in accordance with the provisions contained or referred to in” the 1908 deed.
This matter was further complicated by the fact that in 1962 the Charity Commission sanctioned a scheme in relation to two further charities, one “The Charity known as Christ Church Free Church of England Church” and the other “Christ Church Schoolrooms”. The Scheme provided that the Claimant was to be the trustee of those two charities, and it vested the Original Church Site (but not the rest of the land on which the church was built) and the Schoolroom Site in the Claimant on trust for the respective charities.
Following a change in the law effected by the Charity Act 2006, the “charity known as Christ Church Free Church of England Church” was registered with the Charity Commission with trustees from the congregation. At the same time, and in common with other FCE communities, this local charity adopted a constitution in 2010. That constitution was drafted centrally by the FCE and adopted locally with the necessary changes to make it refer to the local situation. The then minister of the Exeter congregation said that he thought of its adoption as “a formalising arrangement rather than really changing anything.”
For what follows, however, it is important to have in mind the objects clause set out in the 2010 constitution:
“The object of the charity is the advancement of the Christian faith in union with and according to the Principles and practices of the Free Church of England otherwise called the Reformed Episcopal Church contained within the Declaration of Principles as stated in Schedule 1.”
The Claimant brought these proceedings against a number of members of the Exeter congregation, namely their acting minister and his wife, along with the two churchwardens. They are the registered trustees of the local charity. For ease, I will simply refer to them as ‘the congregation’.
Following case management by Master Kaye, a number of issues were sent to Master Brightwell for trial. These were:
- The terms on which the various properties were held;
- The effect of the registration of the local charity and the adoption of the 2010 constitution upon the terms on which the properties were held; and
- “What is the true construction of the charitable objects set out at clause 3 of the 2010 Constitution, in particular the words “in union with”?”
The Master’s judgment on the property issues
In respect of the Original Church Site, the Claimant submitted that the property was held on trust simply for the whole of the FCE as a denomination. Its argument focussed on the first part of the trust clause in the 1911 Conveyance: “upon trust for the religious community known as the Free Church of England”.
The Master disagreed. He was of the view that this interpretation failed to take account of the remainder of the trusts clause: “to permit the same to be used held and enjoyed and applied under the name of “Christ Church (Free Church of England)””. His conclusion was that “a charitable trust which gives property in one clause to trustees for a general charitable purpose to permit it to be used for a particular purpose which falls within the general purpose is a trust which requires the trustees to apply the property for the stated secondary purpose” (emphasis added).
The remainder of the church building site was the subject of a lost declaration of trust. The Master decided that there was sufficient evidence to hold that that document provided that that site was held on essentially the same trusts as the Original Church Site. Given that the two sites are now under one building, this was always a likely conclusion.
The Schoolroom Site was an easier decision – the 1962 scheme said simply that it was held “in connexion with Christ Church Free Church of England Church in the City of Exeter”. For various reasons that need not concern us here, determination of the trusts on which the fourth site (the manse) is held has been left over for another day.
Given the split/schism between the FCE and the Exeter congregation, the court then had to decide whether, as the Claimant said, it (the Claimant) held the properties as charity trustee or whether, as the Defendant said, it (the Claimant) held them as custodian trustee, with the trustees of a local charity being the charity trustees with managing responsibility. On the basis of the evidence before the court, the Master concluded that the Claimant held as a proper charity trustee.
I do accept that this spilling of interpretative ink is important for the parties, but it is somewhat fact-dependent and not of the utmost general relevance. I might quibble with the learned Master about whether the phrase “to permit the same to be used held and enjoyed and applied under the name of “Christ Church (Free Church of England)”” really requires that use. It seems to me that the word “permit” is, by its very definition, permissive rather than mandatory. But even that conclusion is an interpretative one, and the Master’s reasoning is certainly defensible.
The union issue
The real interest in this case to a wider readership comes deep into the second half. By this stage of his judgment the Master considering that third question I set out above: the interpretation of the phrase “in union with and according to the Principles and practices of the Free Church of England otherwise called the Reformed Episcopal Church contained within the Declaration of Principles as stated in Schedule 1”. As the congregation asked in their submissions: “in union with” what? Boiled down to its essentials, the question is this: does this clause contain one requirement (to comply with the Principles etc), or two (to act in union with [something] and to act according to the Principles etc).
The Claimant’s position was that the conjunctive “and” between “in union with” and “according to” showed that there were two requirements here, first to act in union with the FCE as an organisation and secondly to act according to the Principles etc.
In essence, counsel for the Claimant read the clause as follows:
“The object of the charity is the advancement of the Christian faith in union with [the Free Church of England] and according to the Principles and practices of the Free Church of England otherwise called the Reformed Episcopal Church contained within the Declaration of Principles as stated in Schedule 1.” (the words in square brackets being interpolated)
This reading-in of the name of the organisation does some grammatical violence to the words. The ending words of the clause make clear that it refers not to the FCE simpliciter, but to the Principles and practices of that church “contained within the Declaration of Principles”. So it is not as easy as simply reading back the name of the organisation into the first part of the clause.
Although it is not set out as clearly, it appears that the congregation’s argument was that this clause contained only one requirement: to comply with the Principles etc. This too does some violence to the actual words. What, in this construction, is achieved by the compound clause “in union with and according to”? The court will lean against finding that words are simply excess verbiage, which is what this construction requires.
In response to a request from the bench, the congregation’s counsel set down their position in writing. The Master set out those submissions in full (a sure sign that he was not convinced by them), and within them we find the following:
“On the Cs construction (whereby simply leaving the FCE the Ds are no longer in union) this can mean that where the wider church or the church authority (here, the bishops and convocation, on which various churches don’t have a voice) diverge from the principles and practice of the Free Church of England as established at its foundation, while the CC Exeter which has “left” does prescribe to these original tenets, the bishops/convocation (body in power) can assert they are in breach of trust and potentially remove church properties from CC Exeter’s control in order to sell those. This cannot be what was intended at the time the constitution was drafted in 2010, that congregations and charity trustees which follow the principles and practices of the FCoE, could be excluded because they asked to separate from a leadership they disagreed with, which is arguably “in union with” Anglo-Catholic principles.”
In short, the congregation said that in order to comply with the 2010 constitution, the trustees of the local charity had to subjectively decide for themselves whether the FCE as an organisation was keeping to the credal principles of that church. If the FCE was keeping to those credal principles, then to act “in union with” the principles meant remaining within the organisation. If, however, the local trustees concluded that the FCE was not keeping to those principles, then the trustees could break away from the leadership (and keep control of the properties) whilst still acting “in union with” that church’s principles and therefore concordantly with the trusts.
This is a classic tennis-court argument. The congregation assert that it is they who are keeping to the proper tenets of the FCE’s faith, whilst the leadership, they say, have abandoned them. Later on in the judgment the Master records that the congregation believes that the FCE leadership has deliberately moved to an ecclesiastically higher position “motivated by a desire to make the FCE attractive to Anglo-Catholic clergy and others in the Church of England who might wish to leave that church but not wish to join the Roman Catholic Church.”
On the interpretative question, the Master sided with the Claimant. Reminding himself that a charity’s objects clause is to be determined objectively, and so subjective views about the moral character of the leadership are unlikely to be relevant, the Master said this:
“In context of a church, I consider that being in union with it entails membership of and acting in association with and subject to the regulations of the quasi-corporate institution which carries on the religious work of the denomination whose name it bears (see Re Barnes, mentioned above). … An interpretation which permits the charity trustees of the charity to break off all relationship with the formal structure of the FCE would do such violence to the actual words of the document that it cannot be reconciled with them.”
This is, with respect to the congregation and the able submissions of their counsel, clearly correct. The two classic definitions of a church, quoted in Re Barnes, both encompass the whole of the church as an organisation. Whether we are talking about the “quasi-corporate institution” or the “aggregate of the individual members”, we are talking about a corporate whole, and not a single congregation. To be a member of “the” church, whether that church be the Church of England, Roman Catholic Church, or the FCE (or of any of the other many denominations that exist), is to be a member of that corporate whole.
The congregation’s real case
As the astute reader might by now have guessed, all of this interpretative exercise doesn’t get into the real meat of the congregation’s case. What they really wanted, it is to be inferred, is some kind of determination that the leadership of the FCE has abandoned its founding principles. Submissions were made for the congregation that appear to have ranged over Calvinist approaches to episcopacy, the Countess of Huntingdon’s Connexion, and Newman’s Tract 90. This was expressly called, by the congregation, a doctrinal dispute. They say that, because there has been a schism in the FCE, the court needs to determine who is keeping the faith in order to decide who, ultimately, should have use of the properties. Although this was not expressly stated by them, the congregation seem to want to say that the Claimant is in breach of trust for not permitting them, the orthodox keepers of the faith, to continue to have that use.
This is not an impossible argument to run, and the congregation refer to the Supreme Court’s decision in Shergill v Khaira in support of it. In that case, having noted that many of the cases on this subject were Scottish and from the 19th Century “because of the propensity towards schism of the Scottish Presbyterian churches at that time”, the Supreme Court said:
“In a series of cases in which, as a result of a schism, parties disputed who had the beneficial interest in property which was held in trust for a religious community, the rule was established that the civil courts would ascertain the foundational and essential tenets of a faith in order to identify who was entitled to the property. This rule replaced the former rule, which applied at least in Scotland, that the courts would not investigate the religious grounds of a schism but would give effect to the majority view within the religious community.’”
Given this, it is easy to see why the congregation pushed what has happened in the FCE as being a schism. However, taking account of the court’s reticence in getting involved in expressly doctrinal arguments, this would seem to be a difficult match to win for the congregation. As Master Brightwell pointed out, the closest case to the present one (a Scottish case called General Assembly of the Free Church of Scotland v Overtoun) involved a dissentient group claiming to be the whole of the remaining Free Church, from which the rest had dissented, and therefore within the definition of a church as the “aggregate of individual members”. That is not what has happened here.
At this stage, it is not clear what rights the congregation are seeking to enforce or vindicate in running this argument, nor what they say has changed in the fundamental doctrine of the FCE: that is simply not what the current judgment is about. The Master has left the question open for another day, if the congregation seek to run it. There matters lie. It does look like this might become a two set game. We will have to wait for the final score.
Simon Hunter
Cite this article as: Simon Hunter,” In or out?” in Law & Religion UK, 14 September 2026, https://lawandreligionuk.com/2026/09/14/in-or-out/.