A review of the ecclesiastical court judgments during September 2023 (II)

Eight consistory court judgments were circulated in September, and the three featured in this second part relate to 

• Audio Visual Equipment
• Exhumation
• Churchyards and burials

Also included are: CDM Decisions and Safeguarding; CFCE Determinations; and Links to other posts relating to ecclesiastical law.

Part I of this post, which is out of sequence for operational reasons, includes Reordering, extensions and other building works and will be published within the next few days.

Audio Visual Equipment

Re St. Helen Thorganby [2023] ECC Yor 3 The Petitioners sought a faculty for the introduction of a wall-plinth mounted projector and a remote-controlled electric projector screen above the pulpit; also for works including the raising of the ceiling light fittings and replacement of the existing bulbs with LED bulbs [1]. The petition was supported by the PCC, apart from two abstentions, and the DAC’s Notification of Advice recommended the proposed works [3]. The Registry received letters from three objectors, whom the Chancellor thanked for having taken the trouble to consider the plans and express their views cogently; however, none elected to be party opponent [4]. One of the objectors queried the description of the use of the church in the Statement of Significance, but the Chancellor stated:

“[8]. …where evidence of the type before me relating to use and attendance is provided on an impressionistic, rather than truly scientific, measured basis, there is room for some divergence of opinion…I am persuaded by, and so find that, the formal evidence provided by the petitioners in support of their contentions as to the church’s use is correct in its fundamentals, even if some of the services and attendances wax and wane in terms of numbers or regularity of occurrence…”.

The Family Worship service uses a projector, projector stand and screen and that these are regarded as “vital to the smooth and effective running of the Family Worship service”, but the present temporary set up of the relevant equipment, was described by the Family Worship team, [as] an “accident waiting to happen” and that the equipment raises a risk of causing an injury [9], (though this was disputed by one of the objectors).

In evaluating the petition through the Duffield questions [10] to [29], she did not consider that these works would harm the significance of the building, noting [footnote 4] “In this case amenity bodies have not been consulted, on the basis that the proposed works are not of such an extent as would be likely to affect the character of the church as a building of special architectural or historic interest”.

“[16]. The works are described in documents before me as “permanent”, due to the fixed nature of the fastenings, the fact that the projector and screen will be attached to the wall at all times rather than packed away and stored as the current arrangement is…However, it is important, in terms of assessing harm to significance, to consider that “permanent” in this is sense is a different usage to “permanent” when that word is used to convey the causing of unalterable changes to, or to the loss of, historic fabric. In this case, no such changes are proposed. The attachment of the projection and screen equipment are changes that are capable of being reversed without ill effects to the fabric of the church”.

In relation to the safety issues the Chancellor said:

“[23]. Taking all of these factors in the round, I am persuaded, on the balance of probabilities that the risks and problems described are real and do indeed present potential health and safety risks which it is important for the church to address”.

In summary, she was satisfied that a faculty should be granted in this case, [30] subject to conditions [31] including inter alia:

“[31.2]. The equipment supplier shall confirm in writing to the parish that the new equipment is PAT-compliant at the time of connection and should offer a risk-based frequency of future PAT inspection as required by the IET Code of Practice for In-Service Testing of Electrical Equipment, 5th edition 2020, to be recorded in the church’s PAT Register”.

[Note: There is currently no strict legal requirement for PAT testing (Portable Appliance Testing) . However, the Government however has put regulations into place that pertain to the maintenance of electrical appliances, and the most effective way to ensure that these regulations are met is through risk-based PAT testing. See summary here]

[Re St. Helen Thorganby [2023] ECC Yor 3] [Top of section] [Top of post]

Exhumation

• Errors in burial
• Other

Errors in burial

Re Bretforton Cemetery [2023] ECC Wor 2 Owing to a mistake by a firm of undertakers, there was a failure to comply with the instructions of the petitioner, viz. that the bulk of his mother’s cremated remains should be interred in the cemetery, but that a small proportion of the ashes should be retained so that they could be symbolically scattered in accordance with the deceased’s expressed wishes. The family discovered shortly after the funeral that the whole of the cremated remains had been interred. The Chancellor decided that the circumstances of the petition fitted within the legal exceptions to the doctrine of permanence, accordingly granted a faculty to allow the cremated remains to be exhumed, a portion of the ashes to be taken for scattering, and the remainder of the ashes to be reinterred in the grave plot.

Although in general the scattering of remains is not permitted by the Church of England, the guidance Burial of a portion of a deceased’s body or ashes published by the General Synod Legal Advisory Commission in 2019 provides a rationale in its statement:

“The removal of “some few particles of … cremated remains” prior to interment would be regarded as de minimis and the remaining ashes would still constitute those of a human body. In cases of doubt the matter must be referred to the bishop and the minister must obey his order and direction: see Canon B 38, paragraph 6.”

In Re Bretforton Cemetery, “strewing” the ashes (rather than “scattering” an aliquot portion elsewhere) in the same burial plot would be illogical.

[Re Bretforton Cemetery [2023] ECC Wor 2] [Top of section] [Top of post]

Other

Re Hereford Cemetery [2023] ECC Her 1 The petitioner’s father died in 1970, his body was cremated and his remains interred in the consecrated part of Hereford Cemetery. They were: exhumed in 1997 “without the lawful authority of a Faculty”…”for a purpose it is now not easy to understand”; reinterred in a new casket in the same plot, described as “vaulted” [1]. The petitioner’s mother died in 2022 but her ashes had not yet been interred. The sole raison d’être of the Petition was to enable her father’s ashes mingled with her mother’s ashes, in order to fulfil her mother’s wishes contained in “Catherine Adams Will Trust – Statement of Wishes” signed and dated in 2009. In that year the petitioner’s mother “had decided upon a Christian Science Service”.

In a further detailed set of instructions dated 29 January 2017 her mother confirmed the essential elements of her wishes, including that of the mixing of the ashes. The service was to have readings from ‘Science and Health’ as well as from the Bible, and hymns from the Christian Science Hymnal as well as hymns that would be well-known to members of the Church of England [5]. The funeral service took place at the crematorium in accordance with her mother’s’ wishes, but was not conducted by a member of the clergy of the Church of England [6].

Ockleton Ch. observed in passing “in any event if [the Petitioner’s mother’s] ashes are to be laid to rest in the consecrated part of Hereford Cemetery, that will need to be done in accordance with the teachings and doctrines of the Church of England and with a ceremony and intentions that do not contradict those teachings and doctrines in any respect” [6]. He further noted:

“[7]. I have not been able to discover any decided cases on this or similar proposals. That may be because it is obvious that the mingling of remains is not a good reason to allow an exception to the presumption set out above. There is nothing in Christian doctrine suggesting that any spiritual benefit could follow from such treatment of the remains of the dead; on the contrary, the principle of the permanence of the committal of remains to the earth, the requirement to treat such remains with dignity, and the near-universal Christian practice to maintain the separation and identification of remains where possible, all tend against allowing this Petition.

It is also to be noted (although in context this of little additional weight) that there is no suggestion that [the Petitioner’s father], whose remains would be those disturbed by the proposed work, had expressed any complementary wish; nor is it said that the burial of his ashes was not intended to be permanent (despite the subsequent disturbance of them, itself a long time ago).

The Chancellor refused to grant a faculty. Christian burial should be treated as permanent, and exhumation should not be allowed unless in exceptional circumstances. The petitioner’s mother’s wish did not amount to “exceptional circumstances”. Her ashes may be buried, with suitable ceremony, next to those of her husband, without disturbing the latter and if that takes place a suitable inscription may be added to the present memorial.

“Under the earth there may be natural mingling of the ashes of husband and wife in the course of time. But whether or not that happens, their two souls are together in the hands of God”.

[Re Hereford Cemetery [2023] ECC Her 1] [Top of section] [Top of post]

Churchyards and burials

Environmental Permit

PCC of St Mary’s Church, Black Bourton, OX18 2PQ: environmental permit application advertisement – EPR/JP3523SS/A001: 0.5 cubic metres per day; trench arch effluent; SP 28648 04237.

PCC of St Leonard’s Church, Little Linford, Milton Keynes, MK19 7EB: environmental permit application advertisement – EPR/QB3354GA/A001: 0.12 cubic metres per day; trench arch effluent to groundwater; SP8457844218.

Fonts

See See Re St. Anselm Kennington Cross at [69] to [71].

CDM Decisions and Safeguarding

Safeguarding

• Conclusion of Mike Pilavachi investigation: Extracts from Church of England Press Release, issued on 6 September.  Also response from  Soul Survivor Trustees, (6 September 2023).

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. The determinations for the 7 September 2023 meeting are not yet available. The next meeting will take place on Thursday 26 October 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

• St. Michael le Belfrey, York (I), (29 August 2023).
• St. Michael le Belfrey, York (II), (5 September 2023).
• St. Michael le Belfrey, York (III), (7 September 2023).

Miscellaneous

• On the 70th anniversary of the European Convention on Human Rights, (3 September 2023).
• The CJEU and the ECtHR – an updated idiot’s guide, (8 September 2023).
• Conclusion of Mike Pilavachi investigation. (6 September 2023).
• Barrister to head Church’s ISB Review, (11 September 2023).
• Commission on Racial Justice – 3rd Biannual Report, (13 September 2023).
• Former ISB – Church appoints interim commissioner, (14 September).
• Charity Commission guidance on charities and social media, (18 September 2023).
• Mandatory reporting – the Church of England’s response, (20 September 2023).
• Bishop of Norwich’s response to Net Zero statement by PM, (21 September 2023).

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Notes on the conventions used for the navigation between cases reviewed in this post are summarized here.