Ecclesiastical court judgments – March

David Pocklington

Mar 31

Review of the ecclesiastical court judgments during March 2023

Seven consistory court judgments were circulated in March, and these featured

This summary also includes CDM Decisions and Safeguarding, and CFCE Determinations, as well as links to other posts relating to ecclesiastical law.

Reordering, extensions and other building works

Removal and replacement of pews

Re St. Hilda Hunts Cross [2023] ECC Liv 1 The Petitioners sought to remove fifteen free-standing pews from the unlisted Victorian church and replace them with timber framed upholstered chairs, in order to provide a flexible space within the nave. The pews, which are not fixed in place but freestanding, had been removed by the incumbent and other members of the church and replaced with timber framed upholstered chairs relatively recently without formal authority; when it was indicated by the archdeacon that a faculty was required efforts were made to return them to the nave. The PCC arranged for the formalisation of the position, and the current application was made [1].

The PCC did not wish to remove the pews in their entirety, but to retain two or three on each side of the central carpeted aisle in the nave. The balance of the seating would be provided by the identified timber framed chairs with mauve upholstery [4].

Wood Ch. granted a faculty for the removal of fifteen pews from the nave. The pews did not appear to have any particular architectural or historical significance, and any harm caused by their removal was easily outweighed by the significant benefit which would be gained in having a modern flexible worship space [9]. [Re St. Hilda Hunts Cross [2023] ECC Liv 1] [Top of section] [Top of post]

Re St. Mary Luton [2023] ECC StA 3 The Petitioners sought permission for the replacement of the current pink padded, oak chairs in the main body of the church with Alpha furniture SB2M chairs with metal frames and dark grey Marna fabric [1]. In 2001, a faculty was granted for the introduction of chairs in this Grade I listed church located in the heart of Luton, which provides a focal point for the town [2]. Since that date the main body of the church has featured rows of oak chairs with heather-pink padded (back and base) seats [3].

The proposals before the court were developed with input from the DAC, which attended site visits, and advised inter alia on the range of colours of fabrics that ought to be reviewed [5]. The replacement Alpha SB2M metal-framed chairs with dark grey upholstery "would be lighter, provide greater flexibility, be easier to stack and store, and the colour would be more sympathetic to the interior of the church".

Whilst there would be a noticeable change to the interior of the church, the particular features of significance "are sufficiently imposing and independent of any relationship to the chairs to transcend the sorts of changes under consideration in this case. It is, nonetheless, arguable that the visual impact and modernity of the style of the proposed chairs might be considered to result in some very minor harm to the significance of the church" [11].

The Chancellor concluded that the benefits of the new chairs would outweigh any minimal harm to the interior of the church and accordingly granted a faculty. [Re St. Mary Luton [2023] ECC StA 3] [Top of section] [Top of post]

Heating and lighting

Re King's College Chapel Cambridge [2023] ECC Ely 1 "As part of its policy on climate change, to reduce its carbon footprint, the College wished to place solar panels on both the north and south sides of the Chapel roof. The main arguments of the consultees against the proposal were that the panels would be partially visible through the parapet tracery from a few viewpoints. The Church Building Council also questioned whether panels on the north side of the roof could generate enough energy to justify them. The Chancellor was satisfied that the scheme would benefit the College and would help it towards reaching its net zero target. He determined that he would grant a faculty for solar panels on both sides of the roof, or on the south side only, dependent upon an updated assessment of the potential carbon payback for the north roof and calculations and observations as to the effect on the structure without an identical weight on the north roof, were the eventual decision to allow for solar panels on the south roof only. The assessment should be produced within 28 days and provided to the DAC and other bodies who had been involved in the process, such assessment to be produced within 28 days and then submitted to the consultees for comment within a further 21 days". [Re King's College Chapel Cambridge [2023] ECC Ely 1] [Post] [Top of section] [Top of post]

Exhumation

Family graves

Re Chorleywood Road Cemetery [2023] ECC StA 2.The petitioner sought to have the remains of her baby, stillborn in 1987, exhumed from Chorleywood Road Cemetery and reinterred with the remains of the petitioner's husband (who had died from Covid in 2020) in Woodcock Hill Cemetery. The two principal reasons advanced for requesting the exhumation are that: by reason of its unsuitability, a mistake was made in the location of the burial when it took place in 1987; and, the location of the grave site is causing serious health issues for Mrs X [1].

Having regard to Re Blagdon Cemetery [2002] Fam 299, and to the paper presented to the Court by Bishop Christopher Hill on the Theology of Burial ["A Note on the theology of burial in relation to some contemporary questions", (2004) 7 Ecc LJ 447], de Mestre Ch. determined that there were sufficient exceptional circumstances to justify the grant of a faculty. The position of the allotted grave was "inaccessible and lacking in dignity, being tucked into a very small area almost hidden underneath a hedge", and the grave was in a place which made prayer and contemplation difficult, due to noise from an adjacent busy road and from an adjoining property.[6]. There had been a mistake in not making the parents aware of the situation before the interment. Coping with this poor location had, over the years, resulted in a serious deterioration in the petitioner's health. And the fact that the remains of the child and its father would be interred together would create a family grave [11].

The Chancellor was satisfied that her decision turns on its own facts and does not give rise to the danger of creating unhelpful precedents encouraging applications for reasons which may be less compelling than those in the instant case. This flows from the unique circumstances of the problematic positioning of this grave, the mistake flowing from that, together with the particular circumstances she has had regard to in the medical evidence. [Re Chorleywood Road Cemetery [2023] ECC StA 2] [Top of section] [Top]

Re St. George Unsworth [2023] ECC Man 1* The petitioner wished to have thecremated remains of her brother exhumed from the grave containing the remains of their parents. The petitioner's sister and the deceased's daughter had arranged the interment without the knowledge of the petitioner. This had caused some consternation in the rest of the family, because the deceased had been estranged from the family and they thought it inappropriate for him to be buried with his parents as he was alleged to have subjected his mother to an act of physical violence. The Chancellor refused to grant a faculty, having decided that the petitioner's application did not meet the test of exceptionality envisaged in the case of Re Blagdon Cemetery [2002] Fam 299, so as to justify allowing exhumation. Nor did the petitioner's application "amount to a sufficiently good reason by reference to a 'right thinking' member of the church at large" (referencing the decision in Re Christ Church Alsager [1998] Chancery Court of York). [Re St. George Unsworth [2023] ECC Man 1] [Post] [Top of section] [Top]

Other

Re Heaton Cemetery [2023] ECC New 1 The Petitioner sought permission to have the cremated remains of his parents exhumed from a double plot in the consecrated section of Heaton Cemetery and reinterred in another plot in the same consecrated area [4]; the rationale for the application is that the plot was situated under a tree where birds regularly roosted, and the memorial over the plot had been so affected by bird faeces that it had become unsightly, unhygienic and potentially hazardous to the health of those visiting the grave [5]. Furthermore, the Petitioner's immune system is compromised as a result of anti-inflammatory medication for rheumatoid arthritis, meaning that he can only view the grave from afar; his grandchildren are discouraged from placing flowers on the grave on account of the contamination [6].

Wood Ch. commented that there was no medical evidence to confirm the specific risk to the Petitioner, but it was not necessary to dispose of the petition by reference to that, not least as the court doubts it would meet the threshold of exceptionality on that ground alone [13]. He noted that the facts do not readily fit into the categories specifically identified in Blagdon. However, it was clear that the categories of circumstances are not limited by that decision and the question for the court is whether there are circumstances which are indeed sufficiently special to make an exception to the norm of permanence [14].

Outlining his approach, Wood Ch. observed:

"[15] ...the problem complained of has denied them the opportunity of maintaining the grave in a dignified and respectful state despite their best endeavours. It has thereby caused them distress and created a situation over which they can never have any reasonable control...In all the circumstances, notwithstanding the fact that the complaint arises from a natural phenomenon, it seems to me that the facts do indeed disclose circumstances that warrant the court finding that an exception to the norm of permanence has been made out such that it should grant the relief sought"

Faculty granted. [Re Heaton Cemetery [2023] ECC New 1] [Top of section] [Top]

Churchyards and burials

Development of churchyard

Re Holy Trinity Hull [2023] ECC Yor 1 This judgment is supplemental to the judgments in two earlier faculty applications relating to a project by Highways England ("HE") to widen the highway next to the churchyard [1]. The first faculty allowed for archaeological works to be carried out in that part of the churchyard required for road-widening [2,3]. The second faculty allowed for landscaping works to be carried out [4] In addition, HE had been given licence to occupy part of the churchyard, but the licence had expired in March 2021 [5].

Since then, HE had been carrying out further preliminary groundworks without a licence or other lawful authority [11]. They now sought an interim faculty to continue with works under a Development Consent Order, pending the completion of a Pastoral Scheme to transfer the land to HE. The Chancellor granted a faculty. [Re Holy Trinity Hull [2023] ECC Yor 1] [Top of Section] [Top of Post]

Designation of closed churchyard

See Privy Council Business.

Privy Council Business

8 March 2023

Burial Act 1853 (Notice): Order giving notice of the discontinuance of burials in: St Bartholomew's Churchyard Extension, Keelby, Lincolnshire; and St James Churchyard, Badsey, Worcestershire.

CDM Decisions and Safeguarding

A new policy came into force on 24 October 2022 although there is a potential lacuna for cases where the penalty was imposed after the change in the Code of Practice, but before this date, as with The Right Reverend Peter Hullah. The page on the CofE website Penalties by Consent records the penalties that have been imposed by a bishop or archbishop with the consent of the respondent under section 16 of the Clergy Discipline Measure 2003 and penalties that have been imposed under section 30 or 31.

CDM Decisions

Written determinations of disciplinary tribunals hearing complaints brought under the CDM, together with any decisions on penalty are published by the Church of England; included are judgments from the Arches Court of Canterbury and the Chancery Court of York where determinations have been appealed. The majority of complaints that are made under the CDM are resolved by the bishop, archbishop, or President of Tribunals, without having to convene a tribunal.

No new CDM decisions were notified during March 2023.

Penalties by consent

A new policy came into force on 24 October 2022 although there is a potential lacuna for cases where the penalty was imposed after the change in the Code of Practice, paragraph 312, but before this date, as with The Right Reverend Peter Hullah. The page on the CofE website Penalties by Consent records the penalties that have been imposed by a bishop or archbishop with the consent of the respondent under section 16 of the Clergy Discipline Measure 2003 and penalties that have been imposed under section 30 or 31.

Birmingham Diocese

Rev Helen Greenham. Findings to be reported in approximately 28 days. (8 March 2023).

Church of England

The Revd RACHEL LOUISE STAVERT
Diocese: Carlisle
Date imposed: 22nd March 2023
Relevant CDM section: 16(3A)
Statutory Ground of Misconduct: s.8(1)(d): Conduct unbecoming & inappropriate to the office and work of a clerk in Holy Orders
Penalty: Removal from office, limited prohibition for 4 years & injunction

The Revd GEOFFREY RIBA-THOMPSON
Diocese: Southwark
Date imposed: 7th March 2023
Relevant CDM section: 16(3A)
Statutory Ground of Misconduct: s.8(1)(d): Conduct unbecoming & inappropriate to the office and work of a clerk in Holy Orders
Penalty: Limited prohibition for 5 years

Employment Tribunals

Rev M Burns v Secretary of State for Justice [2023] UKET 1805182/2021

CFCE Determinations

The dates of the Cathedrals Fabric Commission for England may be found by scrolling down to the bottom of the page Cathedrals Fabric Commission. This also includes the applications that the commission examined, most recently on 30 March 2023.. Extracts from the determinations in 8 September 2022 and 3 November 2022 were included in the December round-up of ecclesiastical decisions. Decisions from the December 2022 and February 2023 meeting are still not yet available.

The next meeting of the CFCE is on Thursday 18 May 2023.

Links to other posts

Recent summaries of specific issues that have been considered in the consistory courts include:

Reordering, extensions and other building works