Review of the ecclesiastical court judgments during July 2024
Sixteen consistory court judgments were circulated in July 2024 and Part I of the round-up includes Reordering, extensions and other building works, CDM Decisions and Safeguarding; Privy Council Business; and Links to other posts relating to ecclesiastical law. This Part II include judgments on Exhumation and Churchyards and burials.
Re St. Michael and All Angels Lilleshall [2024] ECC Lic 1 The petitioner
wished to have the remains of her father, who died in 2012, exhumed and cremated and his ashes then taken for interment in a family grave in a consecrated Roman Catholic cemetery in Santa Ana in El Salvador, where he had been born and where almost all his remaining relatives lived [1]. The Funeral Directors for the original interment had written indicating that they were satisfied that they could exhume the remains without adversely affecting any neighbouring memorials or graves: the exhumation would not be simple, but could be carried out appropriately [2].
The relevant local burial authority for the churchyard confirmed that its Health Protection Department had checked the contaminated land records and undertaken a site visit. The Council concluded that there were no public health concerns, provided the exhumation was carried out properly, as proposed [3]. The petition was supported by other members of the immediate family [4]
The petitioner’s father had originally come to England to improve his career as a doctor, but he had always intended to return to El Salvador; he was a Roman Catholic and had no particular connection with Lilleshall and that it had been a mistake for him to have been buried there. It had always been the petitioner’s intention to “repatriate” her father’s remains, but certain circumstances had prevented her from doing so [8,9].
The Parochial Church Council, by a majority, did not support the proposal. However, the Chancellor granted a faculty, noting the long-held desire for interment in the family grave and the circumstances which had previously prevented that from happening [27]. He concluded:
“[28]. It is important to have regard to force of circumstances having over-ridden the wishes of the Deceased and, indeed, having caused delay in bringing this matter to the Consistory Court. Force of circumstances is not the same as an operative, decisive mistake being made and now being corrected, but such circumstances can be a factor to be taken into account.
[29]. I have the greatest of respect for the view of the majority of the PCC. I acknowledge their careful consideration of the material before them, but I consider that the test in Re Blagdon have been met and passed evidentially…this Court will not permit this case to be a precedent for a generally permissive treatment of applications for exhumation at Lilleshall or elsewhere”.
[Re St. Michael & All Angels Lilleshall [2024] ECC Lic 1] [Top of section] [Top of post]
Re St Michael Horton [2024] ECC Oxf 3 An application had been made to set aside a partially executed faculty for exhumation and reinterment of cremated remains. The application was made after the exhumation of the cremated remains, but before their intended reinterment in a family grave in a parish in Northern Ireland where the deceased had been born. The original petitioner and the present applicant were brother and sister. The Chancellor found that the petitioner had been “highly economical with the truth” about sibling relatives when applying for the faculty. When two of his siblings discovered that the remains had been exhumed, his sister in Northern Ireland (who did not have a good relationship with the petitioner) advised the Registry that she and one of her brothers had not been advised of the faculty application and would have objected to it. She therefore applied to set aside the faculty. For the reasons stated in the judgment, the Chancellor decided to dismiss the application to set aside the faculty, in order that the deceased’s remains could be interred next to his father’s remains in Northern Ireland. [Re St Michael Horton [2024] ECC Oxf 3] [Post] [Top of section] [Top of post]
Re Bingham Cemetery [2024] ECC S&N 1 The petitioner wished to have her husband’s cremated remains exhumed from a consecrated part of Bingham Cemetery and reinterred in the churchyard at Stoke Bardolph (some 8 miles away). The initial reason given was that the petitioner found it difficult to visit and tend the grave. The incumbent of Stoke Bardolph did not support the proposal. The Chancellor pointed out that moving cremated remains to another grave, simply to make it easier to tend the grave, was not a sufficiently exceptional reason to authorise exhumation and reinterment. (See Re Blagdon Cemetery [2002] Fam 299.) However, the petitioner wished her husband’s remains to be reinterred in a family grave at Stoke Bardolph, where the petitioner also wished to have her own remains interred in due time. The Chancellor observed that reinterment in family graves (and consequently freeing up an original grave for later use) had come to be regarded as an exception to the general rule against exhumation. He therefore granted a faculty, subject to either the deceased having a legal right to burial in Stoke Bardolph (having died in the parish or having been on the electoral roll) or, if not, subject to the incumbent reviewing her earlier decision and allowing the reinterment. [Re Bingham Cemetery [2024] ECC S&N 1] [Top of section] [Top of post]
Re Astwood Cemetery [2024] ECC Wor 4 The petitioners, who were Romanian nationals and Christians, were living in Worcester when their child was tragically stillborn in 2020. The child’s remains were interred in Astwood Cemetery. The petitioners subsequently moved back to Romania, to live near their extended families. They now wished to have the child’s remains exhumed and reinterred according to the rites of the Romanian Orthodox Church. Applying the tests set out in Re Blagdon Cemetery [2002] Fam 299, Court of Arches, the Chancellor determined that this was an exceptional case where exhumation should be allowed: “The fact that the plan is for CD’s remains to be placed in a Romanian Orthodox churchyard with suitable rites, and that this churchyard is one where other members of CD’s family are buried supports the petitioner’s application, as it is clear that the remains will be treated with appropriate dignity and reverence, and that they will be buried in a ‘family grave’ in the wider sense of in a churchyard where other family members are buried.” [Re Astwood Cemetery [2024] ECC Wor 4] [Top of section] [Top of post]
- Development of churchyard
- Designation of closed churchyard
- Churchyard Regulations
- Reservation of grave space
Re St. German’s Cathedral Peel [2024] EC Sodor 2 The Dean of St German’s Cathedral and two wardens of the Parish of the West Coast (of which the Cathedral parish formed part until 1 January 2024) sought a retrospective faculty for the installation of a series of sculptures in the cathedral grounds, accompanied by informative QR codes explaining the significance of each [1]. Background to the history of the development of the cathedral is in Re Peel Cathedral [2021] EC Sodor 2.
In accordance with Rule 4 of the Faculty Jurisdiction Rules (Isle of Man) 2016, the applicants consulted the DAC for the advice required; the DAC recommended the application to the Court, although the advice did not address either the issue of retrospection or the inclusion of a representation of a living person [4]. The Vicar General and Chancellor therefore asked the Registrar to invite the Dean, as the lead applicant, to clarify these two points. In response, the Dean “made a number of points about religious art generally” [5].
There were three issues for determination: (a). whether the introduction of the proposed sculptures would cause harm to the cathedral as a listed building under the Town and Country Planning Act 1991(Tynwald) and the Registered Buildings (General) Regulations 1991 in the light of In re St Alkmund Duffield [2012] EACC 1; (b) whether it was appropriate to include a sculpture of a identifiable living individual within the precincts of the cathedral; (c) If the answer to the second question was “Yes”, whether it is appropriate to grant a faculty retrospectively [6].
Manx buildings are not subdivided in terms of their importance: a building is either listed or it is not, and in an earlier judgment the VG accepted that the Duffield tests applied to it. He was satisfied that their introduction enhances the setting of the cathedral, and,” in an increasingly secular society, they help visitors to understand the evolution of Christianity in the Island and the role of the church both in proclaiming the good news and in addressing the atrocities of the 20th century including the Holocaust and the Rwandan genocide” [8].
On the question of the depiction of living individuals, he accepted that there were instances of their depiction in Anglican buildings, and was satisfied that the sculptures of the boy’s head as a living individual, “were not intended to commemorate him as an individual, but rather use his head as representative of a typical Manx schoolchild” [9].
With regard to the question of retrospection, he said:
“[10]. … I find it particularly regrettable that the Dean, who was involved in the application for the 2012 faculty, did not see fit to seek approval for the erection of the buildings and statuary before undertaking these works. That failure is the more surprising given that during the vacancy in the Archdeaconry of Man, following the retirement of the Venerable Andie Brown in 2021 and the appointment of his successor, the Venerable Irene Cowell in June 2022, the Dean served as the acting Archdeacon. However, this should not and does not influence my decision”.
“[11]. There is a clear case for the approval of the installation of the sculptures and buildings within the consecrated part of the cathedral grounds, and a faculty will issue to authorise them”.
[Re St. German’s Cathedral Peel [2024] EC Sodor 2] [Top of section] [Top of post]
Re St. James Sutton Cheney [2024] ECC Lei 3 The churchwardens wished to introduce into the churchyard a statue of King Richard III (who is reputed to have attended mass at the church on the eve of the Battle of Bosworth Field in 1485), as part of a scheme promoted by a group called Bosworth 1485 to create a 12-mile sculpture trail linking sites connected with the battle. The Deputy Chancellor granted a faculty, being satisfied that there would be minimal harm to the setting of the church. [Re St. James Sutton Cheney [2024] ECC Lei 3] [Post] Top of section] [Top]
Designation of closed churchyard
Re St. Mary Shotesham [2024] ECC Nor 4 The petitioner sought to
introduce a memorial stone into the churchyard of St Mary’s, Shotesham. The points at issue were whether the depiction of the Star of David at the top of the stone infringed the Diocesan Churchyard Regulations issued by Arlow Ch in 2016 and, if so, whether a faculty should nevertheless be granted [1]. Etherington Ch. cited Re All Saints Honington [2017] ECC SEI 3 in which as Chancellor of the Diocese of St Edmundsbury & Ipswich, he granted a faculty to permit the depiction of the Star of David on a War Grave.
In the 2017 judgment, he considered “both some fundamental principles of law and the specific (and on any view highly exceptional) factual circumstances including the fact that [the deceased had] died in the service of this country to which he had come three years earlier, had no chance of expressing any view as to where he should be buried and no expectation that his plane would fail in the air over Ipswich” [3]. With regard to the instant case, Etherington Ch. decided that religious symbols other than a Christian cross should not ordinarily be allowed in a churchyard and he therefore refused to grant a faculty permitting the Star of David symbol. [A fuller analysis of these two cases is given in a separate post. [Re St. Mary Shotesham [2024] ECC Nor 4] [Top of section] [Top of post]
Re St. Mary Newton with Flowery Field [2024] ECC Chr 1 A child, aged 6, died in December 2023 and her body was interred in the churchyard. Due to a number of misunderstandings, the child’s parents ordered a steel-grey, granite memorial in the shape of triple hearts, such design being outside the current churchyard regulations. They subsequently applied for a faculty to authorise it. The Chancellor granted a faculty: “I am persuaded here the basic shape of the memorial is acceptable and the pastoral and practical grounds for permitting it in my discretion are amply established”. [Re St. Mary Newton with Flowery Field [2024] ECC Chr 1] [Top of section] [Top of post]
[For the curious, Flowery Field is an area of Hyde, Greater Manchester; It is a mainly residential area once dominated by Ashton Brothers Textile Mill]
Re St. James Norton Canes [2024] ECC Lic 3 The petitioner wished to erect in the churchyard a memorial to her parents. She proposed two alternative designs. One design showed the head and arms of an angel with wings down each outer edge of the memorial. The alternative design replaced the angel with a small image of a dove, but also had wings running the height of the memorial. The designs did not enjoy the support of the PCC
and only one of them that of the DAC; the Public Notice elicited no response [3].
The Chancellor considered that the angel took matters “significantly outside the range of designs local to the memorial in the churchyard (in contrast to the smaller images of the hedgehog and robin for the vases, and the dove)”. He commented:
“[7]. In respect of a churchyard, account not only needs to be taken that it should provide a fitting setting for the church and a seemly resting place for the remains of those interred in it, but also that the memorials represent a broad equality in death and remembrance.
Memorials can be individualised, as this one would be without the angel and its wings, but should not risk overwhelming their neighbours. Both proposals, I find, fall outside the range of what is appropriate to the location, by reason of the angel and its wings. It is unprecedented and out of keeping with other memorials”.
Verduyn Ch. refused to grant a faculty for either design but, if the petitioner wished, a faculty would be granted for the memorial without the angel and the wings [8]. [Re St. James Norton Canes [2024] ECC Lic 3] [Top of section] [Top of post]
Re St. Peter Hilton [2024] ECC Yor 1 The petitioners, aged 80 and 81, who had lived in the village for 46 years each applied to reserve a grave space [1]. No further information had been supplied to the Chancellor as to their reasons for requesting reservations, their attendance at or other connections with the church, despite his directions on 28 May 2024 that the they be given further time to provide an explanation detailing the exceptional reasons why the petition should be granted in this case [2] and [6].
The Parochial Church Council did not support the applications, as they had previously adopted and applied a policy of not supporting the reservation of grave spaces in view of the limited number of spaces left available [3]. The churchyard is built on sloping land, the effect of which is that plots must be dug in sequence from the bottom of the bank. There are currently only 26 available grave spaces in the churchyard meaning and it is estimated that based on current rate of use, there is a further 15 years’ worth of space available [4].
The PCC has a “longstanding” policy not to support applications for grave space reservations, which de Mestre Ch. considered appropriate and should be adhered to in the absence of any exceptional circumstances as to why the policy should be overridden. She had regard to the judgment of Ch. Hodge KC in Re St. Mary Thame [2022] ECC Oxf 2 “which contains a comprehensive review of decisions relating to grave reservations by other Chancellors, including cases where PCCs had adopted policies of not supporting grave reservations”. The Chancellor noted:
“[10] A clearly expressed thread running through those cases where PCCs had adopted policies of not supporting grave reservations is that the Consistory Court will generally support a policy of non-reservation unless such a policy reveals bad faith or is unreasonable (see Re Dilhorne Churchyard (2001) 6 Ecc LJ 77; Re St Mary, Dodlestone Churchyard [1996] 1 WLR 451; Re St Mary, Doddington [2020] ECC Ely 2 amongst others). The chief rationale for this approach is as expressed by Chancellor Aglionby in Re St Nicholas, Baddesley Ensor[1983] Fam 1: ‘If I was to favour the Petitioner I would have to do so to the detriment of other parishioners who have accepted the PCC’s policy as being both sensible and fair to all’.”
On the evaluation of the St Peter’s PCC policy, the Chancellor stated [12] ” …the PCC’s adoption of its policy is of long standing. The PCC’s summary of the rationale for the adoption of the policy contains the following key points:
“[12.1]. a first come first served basis operates, whereby the next grave plot is allocated as someone dies; [12.2]. The policy has long been accepted as fair and followed by the majority without quibble; [12.3] The PCC depends on local support to keep the church operational; [12.4]. If reservations were to be allowed then the very limited number of remaining grave spaces would rapidly be used up by applicants for reservations and the PCC feels that it would be unable to adjudicate fairly between new applications in the event of a surge of applications.
[…]
“[14]. Having considered the PCC’s reasons for introducing the policy I conclude that they are satisfactorily articulated, understandable and objectively reasonable. The evidence of the PCC’s application of its policy since its introduction indicates that it is being applied consistently…There is nothing to suggest bias, bad faith or unfairness.
On the evaluation of exceptionality,
“[20]. The Petitioners did not provide any response to this direction. Accordingly, I have before me only the reasons that were provided in the Petition documents themselves…
[22]. Demonstrating exceptional circumstances requires a petitioner to show that their case is ”markedly out of the ordinary”. [The Petitioners] have not pointed to any factors which mark their position out as exceptional. In these circumstances their petitions must be refused”.
[Re St. Peter Hilton [2024] ECC Yor 1] [Top of section] [Top of page].
Re: An Application for the Reservation of a Space for Cremated Remains in Existing Churchyard Grave [2024] ECC Oxf 2 Hodge Ch. commenced:
“[1] This faculty petition for the reservation of an ashes space in an existing grave raises the difficult, and apparently novel, question of how the consistory court should respond to an application by two family members of a recently deceased man to inter his cremated remains in the existing grave of his former wife when this is opposed by members of her family, including the couple’s son, on the grounds that she was the victim of alleged domestic abuse from her former husband”.
Two sisters of a man who had recently died wished, in accordance with his alleged wishes, to have his ashes interred in the grave of his former wife. Other members of the family objected to the proposal, without becoming parties opponent in the proceedings; they alleged that the deceased’s wife had been a victim of domestic abuse from her husband (from whom she had been divorced on the grounds of his abuse) and that it was not therefore appropriate for his remains to be buried with hers.
The Registry had advised the incumbent that a faculty should be sought to facilitate any objection rather than putting the incumbent of this Grade I listed medieval church in the place of judge and jury when exercising their discretion whether or not to permit the interment [3]. The minister and the churchwarden consented to the petition, and certified that this reservation would not interfere with the rights of parishioners to be buried in the churchyard [5].
The Chancellor refused to grant a faculty because the interment of the deceased’s ashes in the grave of the his late wife “would become a cause of distress or conflict, or a focus of grievance, between family members, and those attending to mourn at [his late wife’s] graveside.” [Re An Application to Inter Cremated Remains [2024] ECC Oxf 2] [Top of section] [Top of post]
Updated: 31 July at 15:15
Notes on the conventions used for the navigation between cases reviewed in this post are summarized here.