The month’s judgments include reordering, disposals, exhumation, and churchyards. When Re St. Maughold Maughold was sent to Ecclesiastical Law Association members &ors, it was pointed out that this is one of the few judgments from the Isle of Man, and there had been a delay in its circulation this judgment whilst a form of citation was agreed. The Isle of Man was deliberately excluded from the list of neutral citations published at the beginning of this year, as it is not strictly part of England; it was therefore necessary for the Diocese of Sodor and Man to determine its own form of citation. [Note: the Maughold judgment relates to Manx secular and ecclesiastical legislation].

In addition to the consistory court judgments, the Church of England has published the decision in the matter of a complaint under the Clergy Discipline Measure 2003 before the Bishop’s Disciplinary Tribunal for the Diocese of Europe: Complainant, The Ven. Jonathan Wilford Lloyd; Respondent, The Rev. Professor James Meredith Day.

There was a meeting of the Cathedral’s Fabric Commission for England (CFCE) was on 19 July 2016 at the applications listed below were considered.

Consistory court judgments

Reordering & other building works

Pews

Re St. John the Baptist Old Hutton [2016] ECC Car 4 Like many rural churches, St John the Baptist has no mains water supply, no kitchen facilities and no toilet within the church; it therefore sought a faculty for (1) the removal of two rows of pews at the west end of the church, in order to create an area of more flexible use; (2) the provision of kitchen facilities in the vestry; (3) a hatch in the vestry screen; and (4) various electrical works. The Statement of Significance also noted: “If it was possible, we would have incorporated a toilet into our scheme but there is resistance within the congregation to having a toilet within the existing [curtilage] of the church. We must, therefore, look to creating as toilet within an extension at some time in the future”. The PCC also wished “to adapt the vestry to incorporate a kitchen and server”, since “it is no longer required for clergy robing.”

The one letter of objection included a petition signed by some 50+persons. However, the Chancellor directed that it was not necessary for the Diocesan Registrar to correspond with each such person “because it was not clear in many cases why they had signed the petition”; however, he was prepared to accept that there is a degree of opposition to the removal of these two rows of pews, although the Petitioners say that only three regular churchgoers signed the petition. Faculty granted, subject to conditions. [top]

Re All Saints Odiham [2016] ECC Win 1 The Associate Rector and Churchwardens petitioned for substantial reordering of the Grade I church, including the removal of nave and aisle pews, and installation of replacement heating system. Issues on latter were resolved at the hearing. Not having a church hall, the church was seeking to adapt its building for use for both community and church-based activities, which involved removal of pews and replacement with mix of solid oak chairs and stacking chairs.

Objections were received from two private individuals, and concerns were expressed by the Victorian Society, the Society for the Protection of Ancient Buildings and the Local Planning authority, all of whom suggested alternative proposals involving the retention of some pews. The Deputy Chancellor made it clear that it was not for the objectors to put forward alternative proposals, but for her to decide whether a convincing case had been made out for the actual proposals in the petition. Faculty granted. [top]

Re St. Peter & St. Paul Rustington [2016] ECC Chi 6 This judgment is supplemental to that given by the Chancellor in June 2015, when he approved a scheme of re-ordering, but postponed a decision on the type of chair to replace the pews in order to give the PCC more time to consider various options. In the present judgment, the Chancellor declined to authorise two types of chair (some for ‘core’ seating and some for ‘supplementary’ seating);  for the sake of uniformity, he authorised only one type of chair: “Introducing a variety of chairs from two different manufacturers, some with arms, some without, some upholstered, some not, would compromise the genius of the reordering which is to create a unified and holistic worship space.” [top]

Heating

Re St. George Millom [2016] ECC Car 2

The Chancellor granted a Faculty to authorise the replacement of the existing ‘wet’ gas-fired central heating system [i.e. radiator-based] with a new gas-fired system, new pipework and radiators at an estimated cost of £97,000 (inc. VAT). A member of the PCC had raised objections, both procedural and in relation to the solution envisaged at a number of stages of the consultation and had become a party opponent. He had argued, inter alia, that, unlike an electrical system, the proposed system would not meet carbon emission reduction targets. [No data on the respective emissions and the assumptions leading to their calculation were included in the judgment, nor an indication of his expertise in relation to making such an assessment. Whilst electrical heating has the potential to generate a lower carbon footprint, here, the calculations must take into account the system boundary, (i.e. whether carbon emissions and transmission efficiencies associated with the energy sources, are taken into account; the availability of supply of “green” sources of gas and electricity in the short- and longer-term is also a factor.]

The Diocesan Advisory Committee had considered alternative proposals and recommended the gas-fired wet system as the most appropriate. In his determination, the Chancellor said [31]:

“31. [The Party Opponent] plainly believes that to install a gas fired heating system is merely replicating old technology and that it represents missed opportunities for the future heating of the church building. He is entitled to his view and is entitled to express it. However, I regret that he does so in terminology which might cause offence, particularly when describing the Petitioners, the Heating Sub-Committee, the DAC and [the DAC Building Services Advisor]”.

[…]

“[43] … I am sure that some members of the PCC and the congregation may believe that [the Part Opponent] has unreasonably pursued his objection to a determination of the Petition on consideration of written representations and in so doing has caused very significant delay in replacing a now almost defunct system. On that issue I would share their view”.

Chancellor Tattersall stated that he was not currently minded to make any adverse order for costs against the Party Opponent because he believed that it was a time for the parish to move on and look forward rather than reflecting on past difficulties about these applications [45]. However he gave liberty to the Petitioners to make an application for costs against the Party Opponent within 3 months from the date of the judgment; but if he decides to accept [the Chancellor’s] decision, therby allowing the works to proceed, “[the Chancellor] would very much hope that the Petitioners will not make any such application”. Faculty granted. [top]

Church Treasures/Sale of Paintings &c/Loans & Disposals

Re Halifax Minster [2016] ECC Lee 6 

From the legal point of view, the Chancellor’s concluding remarks indicate the relative unimportance of the issues at stake, viz. “[i]t is unfortunate that this uncontroversial petition to regularise a regrettable mistake has been so strenuously resisted on such fanciful grounds”. Furthermore, as from 1 January 2016, the permanent disposal of kneelers from the Minster would not be required as the Faculty Jurisdiction Rules 2015 came into force and diocesan Lists of Minors Works, such as that at Wakefield have been replaced with national provisions: section A5(3) of List A provides, inter alia, for the removal of kneelers and hassocks provided that “it does not result in a change to the overall appearance of the church”.

However, since the illegal removal of the hassocks was prior to this date, it was necessary to obtain a confirmatory faculty. The change in the legislation did not legitimize their removal, (and neither did the confirmatory faculty): as Chancellor Garth Moore pointed out in Re Balham St Mary [1978] All ER 193, Southwark Const Ct. [copy available here], the:

“[w]ork done without a faculty is illegal, and remains illegal for all time. If, however, a confirmatory faculty is granted, it means that from that point in time onwards the situation is legalized; but it does not retrospectively legalize what has already been done, and the perpetrators of the illegalities remain personally liable for any wrong they have committed, though for the future the confirmatory faculty brings them within the four walls of the future”.

In the instant case, the Vicar and Churchwardens sought a confirmatory faculty for the permanent disposal of 100 kneelers that had already removed from the church. The motivation for their removal, save for the retention of samples was one of “public safety” in that following a reordering to the east end of the nave the kneelers are positioned on the floor in front of the box pews where they constitute a trip hazard; “they would constitute a particular danger were there to be an emergency evacuation of the Minster”.

The court received one letter of objection from a Mrs Crossley, which placed reliance upon a legal Opinion from Dr Andrew Buck, in which he asserted “I am unable to find legislation which would allow a faculty to be granted retrospectively’; the Chancellor noted he was apparently “unaware that the confirmatory faculty is a familiar creature of ecclesiastical law. It does not retrospectively legalise what was done, but for the future brings the matter ‘within the four walls of the law’, to use the terminology of Re St Mary, Balham”. In addition to referring to material unavailable to the court, Dr Buck’s Opinion was “a curious document making reference to Hillsborough, Alan Turing, and Oliver Cromwell, as well as referring to Euodia and Syntyche. It [asserted] that if the incumbent had not acted so hastily the present impasse would not have come about”.

The Chancellor continued

“12. What neither Dr Buck nor Mrs Crossley seem to appreciate is that the vicar and churchwardens have very properly conceded that they acted in haste and without authority and they are seeking to put things right swiftly and discretely by obtaining a confirmatory faculty. Whilst I cannot understand why it has taken until June 2016 for the matter to reach me, the need for a confirmatory faculty ought always to have been self-evident because an archdeacon cannot give consent retrospectively.

13. There is nothing in Dr Buck’s Opinion that constitutes a ground for opposing the grant of a confirmatory faculty, and it seems to conclude by asserting (incorrectly) that applying for a faculty is unnecessary”.

The Chancellor saw no grounds for refusing a faculty. Faculty therefore granted.  [top]

Exhumation

Re All Saints Ladbroke [2016] ECC Cov 6 The Chancellor permitted the exhumation and reburial of a wife and husband, interred in 1971 and 2003 respectively, and the associated movement of an upright memorial stone on the grounds of “public benefit”. The petition was sought by one of the churchwardens, with the support of the PCC and the daughter of the deceased. On two occasions since 2004, thieves had used the memorial as a stepping stone to gain access to the church roof and steal the lead, the second incident causing the memorial to fall over. The plot was also problematic in relation to the creation of a path alongside the church under the long-term plans of the PCC; in its current location, the plot is also occasionally used as a base for ladders &c when maintenance work is undertaken. [It has also been pointed out to us that, more generally, difficulties are created when churches choose to site cremation ashes plots around the church, in close proximity to the walls; in addition to the adverse aesthetic impact, this complicates maintenance (scaffolding &c) of the church building].

The Chancellor noted [8] that in Re St Nicholas, Sevenoaks [2005] 1 WLR 1011 the Court of Arches explained that “public benefit” can be a circumstance justifying exhumation. The Arches Court explained [15] that this is not inconsistent with the Blagdon approach: whether the exhumation is for a private purpose or for public benefit in each case there must be a sound factual basis which provides a convincing reason justifying the proposed exhumation.

Applying these principles to the instant case, Chancellor Eyre determined [11] that the proposed exhumation is to be seen as one for public benefit rather than for private purposes; there was real need to reduce the risk of lead theft and of damage to the roofs of the church [15]. He concluded:

“[15] … The exhumation can be seen as a delayed consequence of the building of the extension. This is wholly different from those cases where exhumation is sought for private purposes. This is a case where the proper purposes of the Parochial Church Council and the need to protect the church building from theft justify the movement of these remains and of the associated memorial to another part of this churchyard”.

Faculty granted [top]

Re St. Paul Fazeley [2016] ECC Lic 4 “This is not a case of an error of administration in the classic sense of a burial in the wrong grave. However, it is a case where appropriate steps were not taken before the interment” [12].  The undertakers and parish personnel were not informed/did not take steps to ascertain, the family circumstances of the person (lawfully) making the funeral arrangements, i.e. the existence of the petitioner and her six siblings who  sought a faculty to authorise the exhumation of her brother’s recently-buried cremated remains (14 March 2016) from their parents’ grave and re-interment in a nearby new grave.

The Chancellor noted [11]:

“in rare cases, circumstances of conflict at the graveside can be an exceptional circumstance justifying exhumation: see Re St Mary, Haseley (Coventry 2009). Similarly, feelings of distress arising out of the interment of particular remains in a particular grave containing other remains can be an exceptional circumstance for these purposes: see the decision of Tattersall Ch. in Re St Mark, Worley (Manchester) (2007) 9 Ecc L J 147. Nonetheless, the Court must remember the force of presumption of permanence and must not lightly regard considerations of distress as being exceptional circumstances for these purposes”.

In the instant case the Chancellor was satisfied that there were exceptional circumstances to justify exhumation, as the grave had “become a focus of disquiet and grievance amongst the family members with a real degree of distress to some” [13] [Re St Paul Fazeley [2016] Exhumation, ECC Lic 4] [Back] [top]

Re St. Saviour Smallthorne [2016] ECC Lic 3. In contrast to Re St. Paul Fazeley this is a classic case of an administrative error resulting in the burial in the wrong grave, although a “non-standard” solution was sought and granted. The cremated remains of a father and his son had been interred in adjacent plots; when the mother died, her cremated remains were interred in the grave of her son, rather than with the remains of her husband as had been her wish. The Chancellor granted a faculty for the exhumation of the remains of the father and re-interment in the grave of his wife and son, rather than the exhumation of the remains of the mother and re-interment with the remains of her husband. The Chancellor said [10]: “this is an appropriate and desirable result creating as it does a family grave containing the remains of all three members of that family.”  [top]

Re London Road Cemetery Mitcham [2016] ECC Swk 12 A petition was sought for permission to exhume the remains of Michael McGrory from a plot in London Road Cemetery, Mitcham, with a view to obtaining DNA samples on which the identity of the petitioners as children of the deceased might be confirmed; this would also determine the petitioners eligibility to certain funding. The deceased had been abused in a residential institution in the Republic of Ireland when he was young and an Irish Court was holding an award made under the Residential Institutions Redress Act 2002.  Establishing whether the two petitioners were the children of the deceased would determine whether they were entitled to the award. The Parties Opponent were the brother and sister of the deceased.

Much of this 17-page judgment [paragraphs 4 to 27] concerns actions in the Irish courts prior to the instant hearing at the consistory court, at which the issues for consideration were:  Noting that the determining an entitlement to an inheritance could provide special circumstances justifying exhumation, a position accepted by counsel for the Party Opponents, the Chancellor determined that it was appropriate to grant a faculty, subject to conditions on the exhumation, DNA sampling and re-interment. [top]

Re St. Peter Hednesford [2016] ECC Lic 5 A faculty was sought for the exhumation of the cremated remains of the petitioner’s father and their re-interment in the grave of his mother who had died recently; before her death she had expressed a wish to have her body buried and for her husband’s cremated remains to be moved into the same grave, not realising that there could be difficulties in carrying out her wishes. The Chancellor, HH Judge Eyre QC, noted [10] “If that had been explained then Mrs. James might well have made other arrangements before interring her husband’s remains”, adding [our emphasis]:

“… it is relevant to note that even though she wished that her and her husband’s remains should be together in the fullness of time Mrs. James still acted properly in arranging for the interment of her husband’s remains. She did not adopt the undesirable but not uncommon course of retaining the remains uninterred until there could be a joint burial. If exhumation were to be refused in this case it might be thought that those who bring remains to the Church for interment in circumstances such as this are being disadvantaged as against those who retain such remains. That consideration cannot amount to a special circumstance but it is, in my judgment, relevant to the exercise of my discretion if there are special circumstances.”

Applying Re Blagdon Cemetery [2002] Fam 299 the Chancellor found that there were special circumstances [12 (a) to (g)] which justified him in granting a faculty for exhumation and re-interment in the same churchyard. [top]

Churchyards

Re St. Maughold Maughold [2016] EC Sodor 1 The Petitioner sought a faculty to erect “forthwith and before his death” a memorial in the shape of a Buddhist stupa in Maughold churchyard. The memorial was to include the inscription: ‘He wanted green dandelions’, described as a Buddhist ‘koan‘ – an illogical statement designed to aid meditation. The petitioner contended that the stupa would be of a traditional design and in a material which complies with the sizes and dimensions set out in the Churchyard Regulations, for which he claimed to have been given approval by the incumbent and the archdeacon. The DAC endorsed the petition, subject to conditions; there was one objector to the public notice, although she did not become a party opponent.

On referring to the Delegated Authority for Memorials in Parish Burial Grounds issued by his predecessor Faulds VG and the Maughold Burial Authority Churchyard and Graveyard Rules and Regulations, the Vicar General stated [13] that: the former did not give the incumbent authority to permit the erection of the stupa on the burial plot purchased by the Petitioner; neither was the stupa permitted by the Regulations, although its dimensions and materials were compliant. Reference was also made to the Burials Act 1986.

In the light of the above, it was clear that a faculty was required. Furthermore, Tattersall VG stated: he had a discretion regarding the grant of the faculty sought, but must exercise such discretion judicially and for good reason [14]; although applications to erect memorials on burial plots are almost invariably made after the death of the deceased, he did not believe that, as a matter of law, his jurisdiction to authorise a memorial was limited to an application made after the death of a deceased [15 and [16], although this is not explicit within the Faculty Jurisdiction Rules (Isle of Man) 2010.

The Petitioner and his wife were of different faiths and whilst the Petitioner wished for his mortal remains to be cremated and interred in the burial plot, his wife was said to desire a Christian burial in the same burial plot [21]. The Vicar General considered it would be inappropriate for two different memorials to be authorised on the same burial plot, and raised the practical issue of the possibility of the wife predeceasing the petitioner and being interred in the burial plot. He noted that on death, whilst a deceased`s personal representatives [whether an executor or administrator] are required to make arrangements for the disposal of the deceased’s remains, the question arises to what extent they are required to take account of the wishes of the deceased [23]. There is no unanimity in the relevant case law on the issue [24 to 26]; however, of the contrasting views the Vicar General preferred those expressed in Williams v Williams (1882) 20 Ch D and Ibuna v Arroyo [2012] EWHC 428 (Ch): i.e.  that a personal representative is entitled to have regard to the deceased`s previous expressed views as to the disposal of his body but is not bound to give effect to them [27]; “[i]n any event none of these decisions suggest that personal representatives are bound to give effect to a deceased’s wishes as to any memorial subsequently erected on a burial plot after burial” [28].

The Petitioner`s application was refused on the basis that, in the exercise of his discretion, it was premature and unnecessary to grant the faculty sought in advance of the Petitioner`s death and that any application should be made after his death by his personal representatives [34]. He also expressed the view, obiter, that an inscription such as that proposed would not readily be understood to be a koan in Zen Buddhism, does not conform with the three principles set out [epitaphs should honour the dead, comfort the living and inform posterity] and would be likely to mere cause amusement which is not the purpose of such an inscription [38].  [Re St. Maughold Maughold [2016] EC Sodor 1] [top]

Decision under the Clergy Discipline Measure 2003

The Church of England has published the decision in the matter of a complaint under the Clergy Discipline Measure 2003 before the Bishop’s Disciplinary Tribunal for the Diocese of Europe: Complainant, The Ven. Jonathan Wilford Lloyd; Respondent, The Rev. Professor James Meredith Day.

The allegations against Professor Day were that his conduct “was unbecoming or inappropriate to the office and work of a Clerk in Holy Orders within section 8(1)(d) of the Clergy Discipline Measure 2003” in relation to the period when he was married to his wife, and includes [2(i) to (iv)]: storage of a substantial amount of pornographic and indecent images on his home computers; use of a false identity to seek sexual relations with other persons; engaging in sexual relations with a man known as Kris; assaulting his wife on a number of occasions.

Professor Day did not attend the hearings of the court and only provided limited written evidence; consequently, much of the evidence was provided by his estranged wife. Furthermore, it was noted that some of the alleged incidents were not illegal under Belgian law. Nevertheless, the tribunal concluded [46] [emphasis in original]:

“46. Having reviewed all the evidence, and having noted both the Guidelines for the Professional Conduct of the Clergy and Canon 26(2) … we are satisfied that the totality of the evidence provides to the necessary standard that Professor Day’s conduct was, within the relevant period, unbecoming and (we find both) inappropriate to the office and work of a Clerk in Holy Orders”.

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CFCE Meetings

The CFCE met on 19 July 2016 to consider the following applications:

• Canterbury Cathedral: New Welcome Centre and landscaping

• Durham Cathedral: Loan of medieval documents to Newcastle City Library

• Durham Cathedral: Conservation and display of two 7th-century log coffins

• Portsmouth Cathedral: Permanent loan of the marriage certificate of Charles II to the National Museum of the Royal Navy, Portsmouth

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Copies of judgments

As explained in our index of 2018 judgments, copies of the above judgments are now available via the web site of the Ecclesiastical Law Association.