Review of the ecclesiastical court judgments during February 2024
Nine consistory court judgments were circulated in 2024 including:
- Procedure
- Churchyards and burials
- Reordering, extensions and other building works
- Exhumation
- Churchyards and burials
Also included are: Privy Council Business; Other legal issues; Visitations; CFCE Determinations; and Links to other posts relating to ecclesiastical law.
Re St. Nicholas Leicester [2024] ECC Lei 2 This judgment (which was preceded by three interim judgments with the neutral citations [2023] ECC Lei 1, [2023] ECC Lei 2 and [2023] ECC Lei 3, dealing with preliminary issues) relates to a petition for the introduction of a new altar frontal displaying the colours of the Progress Pride flag, the church having come to be regarded over time as a safe worshipping space for LGBTQIA+ people of faith. The Chancellor refused to grant a faculty: “The Progress Pride flag is not a Christian emblem … it is a secular contemporary emblem used for many causes and contemporary discourse … The focus, purpose and celebration of the Holy Communion is for all to come to Jesus and remember His sacrifice … It is clear that there is not a unified belief that the proposed Altar frontal achieves this message of oneness in Christ”. [Re St. Nicholas Leicester [2024] ECC Lei 2] [Post] [Top of section] [Top of post]
Reordering, extensions and other building works
Reordering and alternative uses
Re St. Luke Blackburn [2024] ECC Bla 3 In 2021 a faculty had been granted for extensive reordering of the unlisted 19th century church, following its relaunch as a youth resourcing church. The faculty contained a condition that “None of the existing historic fittings in the church building are to be altered and the chancel is to remain as existing.” In 2023, a faculty application sought ‘retrospective permission for the removal of the pulpit and disposal of church furnishings including credence tables, lecterns and small tables’. The items had been sold to an architectural salvage company at short notice to facilitate completion of the works authorised in 2021 in time for the reopening of the church in October 2023. Notwithstanding objections from the Victorian Society regarding the removal of the pulpit, the Chancellor granted a faculty, being satisfied that the style of worship in the church had changed fundamentally and that the pulpit and other items were no longer needed for worship in the church. [Re St. Luke Blackburn [2024] ECC Bla 3] [Top of section] [Top of post].
Removal and replacement of pews
Re St. Pancras Chichester [2024] ECC Chi 2 The petitioners wished to replace
the existing 1980s upholstered chairs in the Grade II listed church with 150 new upholstered chairs, which were lighter in weight and would stack more easily [1]. The Victorian Society objected to the proposal, citing the Church of England guidance that un-upholstered wooden chairs were more appropriate for historic church interiors [2].
With regard to the first Duffield question, Murray Dep. Ch. noted: the significance of the church owed nothing to the existing chair; they were introduced when a further reordering took place at the end of the 1980s [6]; it was apparent from photographs submitted with the petition that the existing upholstered and metal framed chairs are showing signs of wear [7]; and this church is not “highly listed” or of “national importance”, as the Victorian Society suggested (without further elaboration), although he agreed that un-upholstered wooden chairs and pews were in general preferable [8].
In light of the parish’s response to the Victorian Society’s objection, the DAC recommended the proposal for approval by the Court, having regard to all the matters before him, the Deputy Chancellor was satisfied that a faculty should be granted [14]. [Re St. Pancras Chichester [2024] ECC Chi 2] [Top of section] [Top of post]
Re St. John Hoveton [2024] ECC Nor 2 The petitioners sought to remove all of the oak pews installed in 1890, and to replace them with stackable, upholstered chairs; also the removal of under-pew heating and a single wall-mounted heater and replace both by an infrared heating system. The church is a Grade II* listed building [1]. The DAC recommended all of the works to Etherington Ch. and did not feel that any part of the work was likely to affect (a) the character of the church as a building of special architectural or historic interest (b) the archaeological importance of the church or (c) the archaeological remains existing within the church or its curtilage, and did not recommend consultation [2]. The Chancellor disagreed and directed that the Church Buildings Council, Historic England, the Victorian Society and the Society for the Protection of Ancient Buildings should be consulted [3].
With regards to the pew benches, the Chancellor found that their removal would cause harm to the significance of the church but although he considered the harm would be high did not consider that it is in the category of such seriousness as to demand that exceptional need should be demonstrated. However, when he examined the need, he found that it was expressed “in rather vague aspirational ways” [59].
He determined that the petitioners had not made out a sufficiently strong case for the removal of all the pews from the Grade II* church and also that the proposed type of chair was unsuitable. He therefore refused to grant a faculty for those items. Given his decision to refuse a faculty to remove all of the pews, the Chancellor stated that the Petitioners may wish to re-think their proposals in respect of the heating. He gave them 28 days from the date of the judgment to decide if they wish to do this. If they did, I would allow them a further period of time to reconsider and if necessary to amend the proposals relating to the heating [74].[Re St. John Hoveton [2024] ECC Nor 2] [Top of section] [Top of post]
Some information about the church and some photographs can be found at: https://www.britainexpress.com/counties/norfolk/churches/hoveton-st-john.htm
Re St. Mary Sledmere [2007] Peter Collier Ch. (York) The petitioner was a world-renowned influenza virologist with a particular interest in the 1918 Spanish Influenza strain, a type of avian influenza. In view of the concern in 2007 regarding the avian H5N1 virus, the petitioner wished to exhume the body of Sir Mark Sykes, who had died from Spanish Influenza in Paris in 1919. Samples from previous victims of the 1918 disease had been of insufficient quality for the petitioner’s current research to try to ascertain how the 1918 virus spread in the body, which might help in research to find better clinical treatment for avian viruses. The fact that Sir Mark had been buried at Sledmere in a sealed lead coffin raised the likelihood of better samples being found for the petitioner’s research. The Chancellor granted a faculty. The prospect of finding a way of combatting the H5N1 virus, which would be of public benefit, was a sufficiently exceptional reason to displace the normal presumption against exhumation. [Re St. Mary Sledmere [2007] Peter Collier Ch. (York)] [Post] [Top of section] [Top of post] [Re St. Mary Sledmere [2007] Peter Collier Ch. (York)]
[Note: Normally, the Ecclesiastical Law Association only circulates recent judgments which have been added to its web site. However, the above 2007 judgment was circulated in February 2024 as the ELA considered it to be of interest to Chancellors and others, in view of the circumstances in which the application for a faculty was made.
A review of the case in in our post Evidence from the Grave III ]
Designation of closed churchyard
Re St. Mary Denver [2023] Ely 5 In the earlier judgment Re St. Mary Denver [2023] ECC Ely 3, Leonard Ch. refused permission for a polished green granite memorial stone on the grounds that:
“[14]. …the stone is not permitted under the Regulations and no good reason has been advanced for allowing an exception. In all other respects (and subject to whether the petitioner wants to re-word the inscription in the manner suggested or something similar to it), even if there are minor infringements of the Regulations, I would permit it. The petitioner is advised to choose a stone which falls within the Regulations”.
The petitioner responded with a letter expressing her disappointment at the Chancellor’s decision. He acknowledged that there were many memorials in the churchyard which have been erected contrary to the Churchyard Regulations largely, if not exclusively, because previous incumbents had not informed the relations of the departed that they need to apply for a faculty [4]. It would be wrong to allow a faculty for a headstone which did not conform with the Regulations, just because they had been breached by others [6]. Furthermore, there is a substantial difference between Green Westmoreland Slate and the stone that the Petitioner wished to use; there is a difference in colour, and the proposed green granite is polished [8].
Leonard Ch. was not prepared to change his decision on the proposed stone [9], but said:
“[11]. …In any event I have in my first judgment indicated that I will grant a faculty for the etching of a rose to appear on the headstone. Although the Regulations only permit a black, white or uncoloured etching, I will extend that permission to allow the rose to be coloured as in the drawing with which I have been provided. This, I hope, will provide some comfort to [the Petitioner] and her family”.
[Re St. Mary Denver [2023] Ely 5] [Top of section] [Top of post]
Re St. Wilfrid Standish [2024] ECC Bla 1 The petitioners, residents of the parish for 58 years and with many relatives buried in the churchyard, wished to reserve a grave space for 25 years. In 2022, the Parochial Church Council determined that since there is now a lack of space in the graveyard, the space must be kept for people who live and worship in the Parish and that it did not support applications for grave reservations. In reaching that decision the PCC also recognised that the ultimate decision was one for the Chancellor [2].
On 10 December 2023, the Rector wrote to the Clerk to the Registry stating: “[w]e would see the current rate of new graves being used up in the next 18-24 months” and urged the Chancellor not to grant Faculty, but added that it was his judgment is his to take [4]. The Deputy Chancellor cited with approval the judgment of Hodge Ch. in the diocese of Blackburn, Re St Mary Thame [2022] ECC Oxf 2, (which was reviewed here), and his non-exhaustive propositions in circumstances such as the instant case. Also cited were: Re St. John Stockcross [2023] ECC Oxf 8; Re St. Mark Ocker Hill Tipton [2022] ECC Lic 4; Re St. Mark Ocker Hill Tipton [2022] ECC Lic 5; Re St. Mary Magdalene Bolney [2022] ECC Chi 4; Re St. Mary Standon [2023] ECC StA 1; Re St. Peter Wolviston [2023] ECC Dur; and Re St. Leodegar Hunston [2023] ECC Chi 1.
The Deputy Chancellor concluded that there was insufficient justification for the Court to take the exceptional course of allowing a reservation when there was only space for burials for an estimated period of 18 to 24 months. [Re St. Wilfrid Standish [2024] ECC Bla 1] [Top of section] [Top of page].
St. Paul Re Caton-with-Littledale [2024] ECC Bla 2 The petitioner, who had lived in the parish all his life and whose name is on the church electoral roll, sought to reserve a grave space in the churchyard for 25 years [1, 2]. The vicar indicated to the court that there was space in the churchyard for burials for a period of 5 to 10 years; there was also an extra piece of land, currently used as a recreation area, which could be brought into use and accommodate burials for a further 50 years [3].
In 2023, the PCC agreed not to support new faculties for the reservations of grave spaces except for those relating to existing graves [4]. Subsequently, an application was made for a full burial space for an individual in the parish, who wished to reserve a space in which to be buried. A letter form the vicar explained: [emphasis added]:
[5]. …”This is due to the fact that we believe we have approximately 25 spaces left in the ‘new’ graveyard, and if we have faculties of 25 years+, even though we can find spaces elsewhere, and ultimately consecrate a new piece of land, it nevertheless complicates planning and the use of existing space if we have several plots of land which are not able to be used for decades“.
The vicar certified that the usual public notices had been displayed, and no formal objections had been received to the petition. The Registry’s letter to the petitioner regarding written representations included, at the Chancellor’s request, a copy of his recent decision Re Caton-with-Littledale St. Paul [2023] ECC Bla 6 which he cited in the instant judgment [9]. In his explanation of the legal framework, he emphasized:
“[10]. … the court’s decision was based upon ‘case-specific factors, rather than any inflexible rules’ so the decision would ‘have no prejudicial effect in terms of creating any precedent for other petitions that may be presented in respect of this churchyard’.
Hodge Ch. cited two further cases since he handed down his 2023 judgment: Re St. Leodegar Hunston [2023] ECC Chi 1, and Re St. Wilfrid Standish [2024] ECC Bla 1. In contrast to the latter where there was probably room for no more than eight fresh graves in the relevant section of the churchyard, the options available to the consistory court may not involve a simple binary choice between the grant, or the refusal, of a faculty, but may encompass a third option: that of granting a faculty, but for a restricted period of time. Such a course may be justified where [13]:
(1) the grant of a reservation would be justified but for the limited space remaining within the churchyard;
(2) the grant of a faculty for a limited period of time would not offend against the rationale underlying any policy adopted by the PCC governing the reservation of grave spaces; and
(3) the grant of such a time-limited faculty would serve some useful purpose.
The Chancellor decided, in view of the petitioner’s life expectancy of 7-10 years, owing to paralysis following an accident, and for pastoral reasons, to grant a faculty reserving a grave for a period of 7 years, so that no-one else with a right of burial would be prejudiced by the grant before the space for further burials was full. The petitioner was given liberty to apply for an extension during the seventh year. [Re St. Paul Caton-with-Littledale [2024] ECC Bla 2] [Top of section] [Top of page].
On 21 February 2021, His Majesty held a Privy Council in Buckingham Palace at which “In the exercise of His powers under section 1 of the Burial Act 1855, by and with the advice of His Privy Council, is pleased to order as follows:- Notwithstanding anything in the Orders in Council made under the Burial Acts 1853 and 1855 on 8th February 1855 and varied on 28th February 1855 directing the discontinuance of burials in the Churchyard of St Mary & St Eanswythe, Folkestone, Kent, an exception be added that the burial may be allowed of the late Master William Brown within the Churchyard”.
For the background to the singular circumstance leading to this intervention of the King, see Exceptional opening of a closed churchyard: St Mary and St Eanswythe Folkestone.
Also considered at the Privy Council meeting were:
- Burial Act 1853 (Notice): Order giving notice of the discontinuance of burials in: St Stythians New Churchyard, Stithians, Truro, Cornwall; St Michael and All Angels Churchyard, Stoke St Michaels, Somerset; St John the Divine Church Churchyard, Menston, Ilkley, West Yorkshire.
- Burial Act 1853 (Final) Order prohibiting further burials in: St Anne’s Churchyard, Ambleside, Cumbria.
- Burial Act 1855 (Variation) Order varying two Orders dated 8th February 1855 and 28th February 1855 prohibiting further burials in the Churchyard of St Mary & St Eanswythe, Folkestone, Kent,
CDM Decisions and Safeguarding
Penalties by consent
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. Recent additions are listed below:
The Revd ROGER JOHN DRIVER
Diocese: Bath and Wells
Date imposed: 12 January 2024
Relevant CDM section: 16(1)
Statutory Ground of Misconduct: s.8(1)(c): Neglect or inefficiency in the performance of the duties of his office
Penalty: Rebuke and injunction
Name: The Revd STEPHEN JONATHAN HALLETT
Diocese: Oxford
Date imposed: 28th December 2023
Relevant CDM section: 8(1)(d)
Statutory Ground of Misconduct: Conduct unbecoming & inappropriate to the office & work of a clerk in Holy Orders
Penalty: Limited Prohibition for 2 years (with effect from 31st January 2024)
Name: The Revd ROBERT ALEXANDER SLATER-CARR
Diocese: Southwark
Date imposed: 19th December 2023
Relevant CDM section: 16(1)
Statutory Ground of Misconduct: Conduct unbecoming & inappropriate to the office & work of a clerk in Holy Orders
Penalty: Limited prohibition for 1 year and 8 months (with effect from 5th January 2024)
The dates of the Cathedrals Fabric Commission for England may be found by scrolling down to the bottom of the page Cathedrals Fabric Commission. These included the determinations for the 7 September 2023 meeting and have been summarized in previous L&RUK round-ups. Subsequent meeting have taken place on 26 October 2023, 14 December 2023 and 1 February 2024. The full programme for 2024 is here and the next meeting will be on Thursday 11 April 2024. The delay in publishing reports of these meetings is not unusual.
Judicial Committee of the Privy Council
Jurisdiction: Schemes of the Church Commissioners under Pastoral Measure 1983
All Saints Spring Park Parochial Church Council v the Church, Case ID: JCPC 2021/0114
See also: The Independent, Decision to dissolve black female deacon’s parish is ‘indirectly discriminatory’, 27 February 2024.
Recent summaries of specific issues that have been considered in the consistory courts include:
Reordering, extensions and other building works
- Disputed altar frontal: St Nicholas Leicester, (20 February 2024).
- “Sufficient interest” in faculty petitions – II, (25 January 2024).
General/Miscellaneous
- Ordination after remarriage: Synod motion approved (1 March 2024).
- Fiona Scolding to review Pilavachi links to New Wine, (28 February 2024).
- Safeguarding: General Synod vote, (25 February 2024).
- Jay Report on Safeguarding in Church of England, (21 February 2024).
[Top]
Updated: 6 March 2024 at 09:00.
Notes on the conventions used for the navigation between cases reviewed in this post are summarized here.
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