A review of the issues associated with the implementation of Churchyard Regulations
Whilst the legislative issues associated with Churchyard Regulations are relatively straightforward, their application is often problematic on account of the sensitive nature of the situations to which they are applicable: the design and inscription on headstones; and the placing of unauthorized items on or around a grave; the ownership of headstones is also important where the re-use of existing graves is being considered. This post focuses on the application of Churchyard Regulation in relation to the removal of unauthorized items, which was addressed in Re St Mary the Virgin Burghfield and included detailed review of the law in this area.
Unlike the Church in Wales which has centralized Churchyard Regulations, those within the Church of England are diocese-based; in addition PCCs may adopt their own policies provided that these are consistent with the diocesan Regulations. These are mostly similar but not identical, and general guidance has been provided by ChurchCare on Memorials in Churchyards; however, Churchyard Regulations are locally determined and legal issues addressed through the relevant consistory court. Their enforcement is the duty of the incumbent and for the reasons examined below, their application is not always consistent within a given diocese. Most dioceses provide advice on their web pages, that for the diocese of Oxford (“the Oxford Regulations”) is useful as it gives information relating to the various actors involved: clergy & PCCs; families; stonemasons; and funeral directors:
- Diocesan Churchyard Regulations
- Memorial Agreement Form
- Guide for Funeral Directors and Stonemasons
- Guide for Families
- QR (Quick Response) Codes on Memorials and Gravestones
- Reuse of Churchyards for Reburial
The extent to which this is followed is another matter.
Disputes on the application of Churchyard Regulations are often exacerbated by reporting in the local and national media, and recent high-profile cases have included: Re St Bartholomew Wick (Thomas the Tank Engine headstone); and Re The Churchyard of Quarrington Hill (Sunderland Association Football Club colours on headstone). A further example involving the request for a headstone in the design of a “princess’s castle”, reported recently the Church Times, has yet to be determined by the Exeter consistory court.
Memorials in churchyards
Issues concerning the design of a headstone and its inscription are addressed by the courts as they arise, and most petitions seek approval before they are placed in the churchyard, since there are few options available for subsequent remediation. In Re The Churchyard of Quarrington Hill, however, the memorial was already in situ. The chancellor therefore directed that the non-standard colouration of the edging be painted black (“permanently obliterated”) and the portrait of the deceased be removed and replaced with one in an approved format. Failure to comply with either condition would result in the removal of the memorial.
Another group of these “churchyard cases” considered by the courts is that relating to the removal of unauthorized item from individual grave – toys, lighting, edging, chippings &c. Such situations can develop over a period of time and it becomes necessary for the PCC to “regularize” the position in the churchyard and seek approval for their removal, as in the case of Re St Mary the Virgin Burghfield  Oxford Const. Ct, Bursell Ch.
Removal of unauthorized items
Chancellor Rupert Bursell handed down the judgement in Re St Mary the Virgin Burghfield in 2011. However, since diocesan chancellors are once more grappling with the question, it was requested that this might be circulated to Ecclesiastical Law Association members [although referred to in Halsbury’s Laws, as “unreported”, a report of the case is in  P.T.S.R. 593 . A link is therefore available on the ELA website, which includes the following summary:
“The Parochial Church Council petitioned for permission to remove all toys, ornaments and other memorabilia and edgings from 67 graves within the churchyard, many of which items had been in the churchyard for a considerable time. The Chancellor considered all written objections, including a claim that to remove such items would be in breach of the law relating to human rights, but decided that the PCC was entirely within its rights in wishing to enforce the Churchyard Regulations, and accordingly a faculty was granted”.
The petition at St Mary the Virgin Burghfield represented the culmination of a number of attempts by the PCC at regularizing the position in the churchyard: the situation became apparent in the 1990s when the PCC amended its own churchyard regulations to correspond with diocesan Regulations; however, despite some success in the removal of plastic railings around individual grave plots, during the following 20 years, a number of unpermitted additional items (such as kerbs, lights and ornaments) had been introduced into the churchyard.
General law applicable to graves
The Chancellor highlighted a number of points of law applicable to graves :
- a grave space may be reserved by a faculty issued by the diocesan chancellor (The Perivale Faculty, de Romana v Roberts  P 332 at 338; Re West Pennard Churchyard  4 All ER 124);
- the grave itself is not owned by the deceased or by his relatives whether before or after the burial (Cripps on Church and Clergy (8th Ed, 1937) at 572; Hill, Ecclesiastical Law (3rd Ed, 2007) at 7.113); this applies even if there is an exclusive right of burial confirmed by faculty after 1964: S8(1) Faculty Jurisdiction Measure 1964;
- there is no right to erect a monument over a grave without the permission of the diocesan chancellor; this permission is usually given through an authority delegated to the incumbent: Re Woldingham Churchyard  2 All ER;
- if an item is placed in a church or churchyard without permission, a faculty is required for its removal (Ritchings v Cordingley (1868) LR 3 A & E 113 at 122; Vincent v Eyton  P 1 at 12; Newsom & Newsom Faculty Jurisdiction of the Church of England (2nd ed., 1993) at 192-193), although a faculty is not required for its removal if the matter is a very minor matter,( but see below);
- the incumbent is under a responsibility to prevent breaches of the law: for example, Re St Margaret’s, Eartham  1 WLR 1129 at 1134B; and Revised Canons Ecclesiastical, Canon F 13 §2.
- In spite of this legal requirement in relation to removal, the continuance of an item within the churchyard cannot create a legal right to its retention: R v Twiss (1869) LR 4 QB 407; S56(2)(3) Pastoral Measure 1983.
In summary, the Chancellor stated :
” … [the] general law applicable to graves … is not a question of diocesan regulations but, rather, of the general law of the land. I emphasise this in order to underline that [the petitioner] is mistaken in her belief that she and her husband are ‘owners of that precious piece of land’, although I suspect that many others share a similar belief. Relatives, therefore, do not have the right to turn graves into gardens or to fence them off or to create edgings”.
Although the Oxford Regulations had been amended to enable parishes to adopt “local variations” subject to approval by the Chancellor, such approval is given sparingly as local variations have in the past caused great difficulties within the diocese; no such approach had been made in Burghfield.
Removal of unapproved items
A degree of flexibility is provided within the Oxford Regulations regarding the placing of toys &c on the graves of infants. Paragraph 4.9 states inter alia
“Toys or other similar ornaments may be left at the graveside for a period of twelve months after the burial or interment. They must then be removed by the family or by the incumbent (or area dean) after sensitive consultation with the family”.
This has the following legal consequences [emphasis added]:
“ … if a toy is introduced under the current Churchyard Regulations, it is introduced with permission and its presence is not irregular for the period of 12 months after the interment; thereafter it should be removed by the family or incumbent as soon as possible.
These latter words would include a reasonable time for the exercise of pastoral sensitivity in the negotiations for the removal of the toy. Nonetheless, if an appreciable time passes by reason of the failure of the incumbent to fulfil his or her responsibilities, there comes a time when the toy can only lawfully be removed under the authority of a faculty.
Similarly, if a toy or ornament were introduced without any authority (such as from a faculty or under the current Churchyard Regulations), a faculty is required for its lawful removal if it is not removed as soon as possible after its introduction”.
There are obvious pastoral advantages in the inclusion of a “period of grace” in in these, and other diocesan regulations such as those of the Norwich diocese, which place the onus for removal of unauthorized items (after thirteen months) on the minister and churchwardens. An obvious practical problem with the Oxford Regulations is for the incumbent, and ultimately the court, to determine at what point “a reasonable time for the exercise of pastoral sensitivity” becomes “an appreciable time”.
A theme common to Burghfield, the unreported case of In the matter of the Parish of Alwalton, Huntingdonshire (1st June, 2011) (unreported) and more recently in Re St Bartholomew Wick is the perception by the petitioners of the acceptability of their proposal in comparison to other headstones in the churchyard and the longer-term issue of the remembrance of the deceased. The former issue was well-summarized in this latter case, in which the chancellor said :
“… matters of sentiment and aesthetic judgment are fraught areas” as identified by the petitioners’ letter which identified several headstones in the graveyard are, in their view, “vulgar to look at”. He noted that “[those] same headstones, vulgar to strangers, must have given comfort to the deceased’s families when they were erected (but only presumably, to them) however, inappropriate they now appear to those who did not know the deceased.”
In some cases, graves are visited by relatives on a daily basis, as in Burghfield [para.2], and for these the inscriptions on the headstone and additional items added to the graves are clearly of particular significance. However, these also have an impact on others visiting the churchyard. On the longer-term issues, Chancellor Gau pointed out :
“… it is to be remembered that the memorial will be read not just by those who knew the deceased in question but by those who did not. Indeed, the message conveyed to those who did not know the deceased is in many ways more important … Moreover, the memorials placed in churchyards must be fitting and appropriate not just for today, but also for the future”.
A similar perspective is given in the Norwich Regulations:
“Epitaphs should honour the dead, comfort the living and inform posterity. They will be read long after the bereaved themselves have passed away and as such are not the right place for passing sentiments about how the family feel about the deceased”.
Articles 8 and 9 ECHR
The petitioners’ human rights were addressed in paragraphs 17 to 19 in relation Articles 8 and 9 of the European Convention on Human Rights and Article 1 of the first protocol of that Convention. The Chancellor stated: “[a] parochial church council is not a “public authority” (Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank  1 AC 546, especially at para 14), but the consistory court is: Re Crawley Green Road Cemetery, Luton  Fam 308”.
Most reported cases in this area have concerned petitions for exhumations: Re Dorrington Cemetery  Fam 1; Re Crawley Green Road Cemetery, Luton  Fam 308, although in Jones v United Kingdom (application no. 42639/04) the ECtHR was concerned with the refusal of a photograph to be included on a memorial in a local authority cemetery. In declaring Mr Jones’ complaint in relation to Article 8 as “manifestly ill-founded”, the Court observed that:
“the exercise of Article 8 rights of family and private life pertain, predominantly, to relationships between living human beings … There is no right as such to obtain any particular mode of funeral or attendant burial features”.
In relation to Article 9, it stated
“the decision refusing permission for a photograph on the memorial cannot be regarded as preventing any manifestation of the applicant’s religious beliefs in the sense protected by this provision …It follows that this complaint must be rejected as incompatible ratione materiae with the provisions of the Convention”.
Chancellor Bursell stated  that it was equally clear, and for similar reasons, that neither Article 8 nor 9 was engaged in the instant case. Similarly, Article 1 of the first protocol does not apply as long as the petitioners are given a reasonable opportunity to repossess their items and edgings once they have been removed. As a consequence, As a consequence, he did not accept that in law the Hill’s human rights are in any way affected.
In his concluding remarks in Burghfield, Chancellor Bursell noted :
“… both the incumbent and the churchwardens are under a duty to enforce the law. What is more, as has occurred in the present circumstances, if the Churchyard Regulations are not enforced there is a grave danger of very real pastoral upset occurring in the future, even when an original turning of a blind eye may itself have taken place for seemingly good pastoral reasons.
“the relatives of a deceased person are always entitled at any time to apply to the court (whether on pastoral or other reasons) to alleviate the strict letter of the Regulations and this ability in itself provides some flexibility in Regulation’s application”.