Burial and destruction of unwanted fonts – further clarification

Points arising from recent judgment on disposal of fonts

With allusions to Sydney Pollack’s 1969 award-winning film, our post They bury fonts, don’t they? considered the issues associated with the disposal of unwanted fonts raised in Re St. Peter Shipton Bellinger [2015] Winchester Const Ct, Christopher Clark Ch. In this case, three disposal options had been suggested: that it should be offered for sale; given to another church or chapel; or failing these options, buried in a convenient place in the churchyard. Although successfully appealed by the Victorian Society in the Arches Court, In Re St. Peter Shipton Bellinger [2015] Court of Arches, this latter judgment centred on the handling and determination of the case [“at every level almost everything that could go wrong did go wrong” [4]] rather than the burial or other disposal of the font. Nevertheless, the post gave rise to a valuable comment stream which we followed up in Last rites for fonts – continued.

The issue of the burial of fonts has been raised again recently in Re St Philip Scholes [2016] ECC Lee 5, and this post summarizes the review of the legal issues considered, the judgment of the court and the production of guidance by the Church Buildings Council.

Background

The consolidated proceedings Re St Philip Scholes [2016] ECC Lee 5 were largely an enquiry into how “such an unhappy situation” surrounding the unauthorized removal and treatment of a font from the church arose. However, these considerations gave rise to a number of subsidiary matters including the law relating to the disposal of fonts [36 to 45]. Under r 8.7 Faculty Jurisdiction Rules, the Worshipful Mark Hill, QC,  directed that there be consultation with the Church Buildings Council, and expressed his concern that “a statutory body which has such an extensive experience of giving and collating advice across both provinces of the Church of England was so unwilling to give assistance in this case” [34].

Nevertheless, the petitioners had already lodged in evidence “an extract from the comment stream of a highly reputable blog (David Pocklington, ‘They Bury Fonts Don’t They’, Law and Religion UK, 7 April 2015)”. The Chancellor followed up Michael Ainsworth’s observation that the CBC intended to produce guidelines on the issue and the importance afforded to the sacramental nature” of the font – the very point which the court had to examine, and noted “rare lapse” from the CBC in its “impoverished response”:

“In the event that a confirmatory is issued, the Council would wish to see the removed font treated in accordance with the Canon F1, and not be available for any use apart from baptism after its removal. This is most likely to meant [sic] that it is put beyond further use”.

This allowed counsel for the petitioners, Miss Ruth Arlow, “to make the bold submission that not merely was the advice of the CBC much delayed, perfunctory and unhelpful, it was also wrong in law”. In his directions of 9 February 2016, the Chancellor directed the appointment of an amicus curiae to assist with the legal issues involved, but at the request of the petitioners’ solicitors, he cancelled this direction on the basis that Miss Arlow was to be instructed, noting:

“36 … In the best traditions of the Bar she has had to be entirely non-partisan bringing to the court’s attention relevant material whether or not it assists her clients’ case, and I am confident that I can place reliance upon the thoroughness of her research.”

The law on the disposal of fonts

In addition to “a thorough skeleton argument”, Miss Arlow made oral submissions at the conclusion of the evidence. She took as her stating point the judgment of the Court of Arches in Re St Peter, Draycott [2009] 3 W L R 248 [summarized in [2009] Ecc LJ 11 (3), 365-366] concerning to the sale of a font to a private collector, in which the CBC was given leave to intervene in that appeal and was represented at the hearing by Mr Alexander McGregor, instructed by the Legal Adviser of the Archbishops’ Council. The case concerned an appeal by the Victorian Society against the decision of Briden Ch. sitting in Bath and Wells Consistory Court to grant a petition permitting the sale of a font to a private collector.

The Arches Court considered three propositions put forward by Mr McGregor regarding the circumstances in which a font might ever be sold or disposed of to another use: (i) a font is an essential part of the interior of a church; (ii) a font may not lawfully be put to any other use than the administration of Holy Baptism; (iii) a font which is no longer required for the purpose of the administration of Holy Baptism should be put beyond use, [paragraphs 37 to 57, summarized in Re St Philip Scholes in paragraph 38].

Essentially, the Arches Court interpreted the provisions of Canon F1.3 [i.e. that “The font bowl shall only be used for the water at the administration of Holy Baptism and for no other purpose”] as simply protecting the font bowl whilst it is in use in the church for the purpose of the administration of Holy Baptism; the canon says nothing about what is to happen, if and when, a font bowl is no longer in use for that purpose”.

However, it was unable to accept the second proposition that there is a long-standing legal principle prohibiting the disposal of a font under faculty in any circumstances whatsoever; and with regard to the two post-1969 consistory court cited by Mr McGregor in support of his third proposition, the Court of Arches agreed with Ms Arlow, who submitted that these decisions simply demonstrated that in certain circumstances a faculty may be granted for the disposal of a font in one way or another.

The Chancellor sought to seek to draw some general statements of principle from the authorities to which Ms Arlow had taken him [40]:

  • S76 of the Mission and Pastoral Measure 2011:  this states that in the case of a church building being disposed of, unless the scheme itself makes other provision, ‘the bishop shall … give directions as to how the font, communion table and plate used for the purpose of Holy Communion shall be dealt with”, [see also Last rites for fonts – continued]. Accordingly, the Chancellor deduced that when determining petitions relating to fonts, [and altars, communion plate &c], the court should give particular regard to their heightened sacramental significance and symbolism.
  • the conclusion to be drawn from the Court of Arches’ consideration of the wording of Canon F1.3 in In Re Draycott was [emphasis added]:

    “so long as a font remains in use it should have no other concurrent secondary uses, but this clear and unequivocal prohibition ceases once a font is redundant or superfluous and is no longer used for the administration of Holy Baptism. There is no legal principle prohibiting the disposal of a font under faculty in any circumstances whatsoever. There is no rule requiring redundant fonts to put beyond use. A faculty may be granted for the disposal of a font. Each case will turn on its own facts, but at one end of the scale where disposal may be permitted, (as identified in paragraph 57 of Draycott) is ‘a liturgical re-ordering in which a font of no distinction becomes superfluous’, which seems to be precisely what was envisaged in the scheme proposed here at St Philip’s, Scholes.”

  • the Opinions of the Legal Advisory Commission, “Church building: improper removal of the contents”, May 2007, provide further support for this general proposition. Paragraph 9 reads:

“[o]nce a valid disposal, by way of sale or gift, of the contents of a church has been made, the goods in question become ordinary things in commerce and are wholly divested of any sacred character.” [emphasis added].

In addition, in the Court of Arches in Re St Gregory’s Tredington [1972] Fam 236 [reported here], Newson Ch (sitting as Deputy Dean) made plain that there is no authority binding on chancellors requiring that if a faculty is granted for the sale of communion plate, the vessels should be “protected from profane or secular use”. However, Chancellor Hill noted that in the case of altars and fonts “the fact of their previous sacramental use will be a reason for particular care being taken when deciding on any conditions to be imposed in the event of disposal”.

Disposal of font at St Philip, Scholes

The Chancellor concluded [49]:

“… I am satisfied that, contrary to the proposition advanced by the CBC, there is no legal or other requirement for a redundant font to be put beyond use. In the particular circumstances of this case, the reality seems to be that the font comprises the bowl and that the breeze block and marble cladding constitute nothing more that the pedestal in which it rests.

As the point was not argued before me, I need not come to a final determination, but in my judgment it is appropriate for the bowl to be retained with dignity; however, the ‘builders rubble’ which is all that remains of the pedestal can properly be disposed of in such matter as the Archdeacon may direct. I can see no difficulty in it being discretely buried in a corner of the unconsecrated field in which the church building stands, but having regard to the nature of the material, providing the bowl is reverently preserved, I can see no objection to it being dumped in a landfill site or similar”.

This latter point draws upon the distinction between the treatment of the font bowl, which is subject to Canon F1(3), and its plinth/pedestal/base which is not, although both fall within the faculty jurisdiction. For some fonts the latter is integral to the entire structure, but there are others such as that at St Andrew, Ewerby, Lincolnshire, in which according to Betjeman  there is a “14th century font … contemporary with the church, but appears to be mounted on the inverted bowl of a Norman font”; clearly a grey area if Canon F1(3) were to be applied to a contemporary situation such as this.

Comment

At paragraph 39, Chancellor Hill stated:

“[u]nder the strict principles of stare decisis, a judgment of the Court of Arches is not binding in the northern province, but in the absence of any contrary statement in the jurisprudence of the Chancery Court of York, the proper course is to treat it as being a persuasive decision which is to be followed. … If it is right, as Mr Ainsworth suggests, that the CBC is intending to produce some guidelines on this matter, then it is to be hoped that they will reflect the opinion of the Court of Arches”.

As a now-former member of the CBC, Michael Ainsworth comments:

“CBC’s difficulty in producing guidelines for ChurchCare is that it has taken the view that, beyond the pastoral and liturgical principles of re-ordering, this is a legal and doctrinal matter for chancellors and/or bishops rather than CBC to sort out. The judgment in Re St Philip Scholes illustrates that despite St Peter Draycott [“persuasive” for the northern province] there is no unanimity among chancellors, nor among the bishops who issue directions. Some chancellors share the view that the breaking up or burial of fonts is a ‘curious and arcane practice which might be medieval in origin’ [27]; some are entirely ‘relaxed’ about letting fonts become ‘features’ (i.e. nice for flowers), but some still regard ‘putting out of use’, whatever that might mean, as appropriate even if as a last resort, as do some catholic-minded bishops”.

In relation to the judgment, he raises the following questions:

  • Is it really so clear-cut that redundant fonts (and altars and communion plate) are ‘wholly divested of any sacred character’ [42]? The fact that they can be sold without restriction does not necessarily demonstrate this, and as the judgment notes, sensitivity is required. Many people want to be able to point to the ‘place of their baptism’ even if it is no longer still in use, which appears to be more than mere sentimentality.
  •  The interpretation placed on Canon F1.3 in Draycott, i.e. ‘so long as a font remains in use it should have no other concurrent secondary uses, but this clear and unequivocal prohibition ceases once a font is redundant or superfluous and is no longer used for the administration of Holy Baptism’ [41] raises other issues. What then is the ‘status’ of an unused/redundant/superfluous font that remains in the church? Does it simply become a ‘piece of furniture’ which may be used for other purposes? And if not, why not? Does this mean that there is no longer a problem about having two [or more] fonts in a church, which is liturgically undesirable, since the unused one has ceased to be a font?

With regard to Michael’s point regarding bishops’ directions, S76 Mission and Pastoral Measure 2011 relates to the disposal of the font, communion table and plate, and other contents within a pastoral church buildings scheme or a pastoral (church buildings disposal) scheme where a church or part of a church is to be demolished or appropriated to any use specified or described in the scheme, or by the direction of the bishop in the absence of such provisions. This section of the Measure is outwith the faculty jurisdiction, S76(5), and therefore the bishop’s directions do not appear to be applicable to situations regarding redundant fonts such as re-orderings &c, where the building remains in full use.

It is perhaps more significantly that there exists within the ecclesiastical law of the Church a procedure to which the faculty jurisdiction is inapplicable, and for which the sacramental nature of fonts &c is not an implicit concern, The word “sacramental” is absent from both the Measure and its Code of Practice]; paragraphs 5.7 and 5.8 of Appendix 11A to the Code of Practice for the Measure state:

5.7 When all arrangements for the disposal of all contents have been completed, the DMPC [Diocesan Mission and Pastoral Committees] should forward to the [Church] Commissioners two copies of the inventory, duly annotated to show how they will be dealt with, and one copy to both the SAC [CBC’s Statutory Advisory Committee] and the diocesan records office. The bishop should, subject to any provisions of the scheme, give directions as to the application of any sale proceeds deriving from the disposal of the contents (s.76(2) of the 2011 Measure).

5.8 The 2011 Measure contains separate provision (s.76(1)) for dealing with the font, altar and Communion plate in accordance with directions of the bishop, unless the scheme directs otherwise. Such items are usually transferred by the DBF [Diocesan Board of Finance] to another church in the area of the benefice, failing which they might go to another church or chapel in the diocese, as directed by the bishop. The DMPC should advise the Commissioners on any particular requirements for dealing with these items in the scheme itself so they can include the appropriate wording.

In conclusion, the CBC’s difficulties on the production of guidance on the disposal of fonts as outlined by Michael are evident. However, based upon the judgment of the Court of Arches in Re St Peter, Draycott [2009] 3 W L R 248, the legal position as determined in Re St Philip Scholes [2016] ECC Lee 5 appears to be:

  • Canon F1(3) says nothing about what is to happen, if and when, a font bowl is no longer in use for the water at the administration of Holy Baptism and for no other purpose;
  • there is no long-standing legal principle prohibiting the disposal of a font under faculty in any circumstances whatsoever; and
  • in certain circumstances a faculty may be granted for the disposal of a font in one way or another, and each case will turn on its own facts.

Perhaps the CBC’s underlying problem is that when given leave to intervene in Re St Peter, Draycott, the Arches Court did not accept propositions ii) and iii), supra, put forward by its counsel, Mr Alexander McGregor, who was instructed by the Legal Adviser of the Archbishops’ Council. This opinion does not seem to have changed since it was evident that it formed the basis of the CBC’s “impoverished response” to the court in the instant case.

David Pocklington and Michael Ainsworth

Postscript

Re St. Michael & All Angels Blackheath Park [2016] ECC Swk 13 concerned the major-reordering of a church, including the removal and burial of existing font. The Local Authority objected to its burial, and Historic England had reservations regarding the replacement new font. Chancellor Petchey reviewed recent decisions on disposal. A faculty was granted, including a the provision that the old font be put into storage.

Cite this article as: David Pocklington and Michael Ainsworth, “Further clarification on the disposal of fonts” in Law & Religion UK, 31 May, http://www.lawandreligionuk.com/2016/05/31/burial-and-destruction-of-unwanted-fonts-further-clarification/

3 thoughts on “Burial and destruction of unwanted fonts – further clarification

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