Court refuse faculty for treble clef memorial in Isle of Man churchyard

22 September 2017

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THE Consistory Court of Sodor & Man refused to grant a confirmatory faculty for a wooden memorial which had been erected in the churchyard of New Lonan, in the parish of Lonan and Laxey. The Court ordered the memorial to be taken down because it did not comply with the Churchyard Regulations, in that it exceeded the maximum dimensions laid down, it should have been of natural stone, and it was of an “eccentric shape”.

The petitioner for the confirmatory faculty was Andrew Frankland-Davies, the widower of Katherine Frances Frankland-Davies, who died in May 2014, aged 39, and was interred in grave B45 in the churchyard.

Without first obtaining a faculty, he erected a memorial, constructed of oak, in the shape of a large treble clef 1270mm high, 610mm wide, and 230mm thick. The deceased was a singer and songwriter, and carved into the wood were depictions of characters from a book she had written for her children, and which was published shortly before her death. Inscribed on the memorial were the words “This too shall pass”, taken from the engraving on the wedding rings of the petitioner and the deceased.

The memorial was situated immediately behind the grave of Dominic James Black-Kay, who died in April 2009, aged seven. In response to a public notice of Mr Frankland-Davies’s petition for a confirmatory faculty, Dominic’s parents and sister wrote complaining that the wooden memorial overshadowed Dominic’s memorial, was already deteriorating, and had become dirty and discoloured, so that it was unpleasant to see behind Dominic’s memorial.

The Vicar General of the diocese of Sodor & Man, Geoffrey Tattersall QC, said that it was appropriate to pay tribute to the wording of the letter from Dominic’s family. They acknowledged the sensitivity of the situation, and were anxious neither to cause any unpleasantness or ill-feeling, and their complaints were expressed in measured terms. They had declined to become parties opponent to the proceedings, but the Vicar General said that he would take their views into account in deciding the petition.

In response to the complaints, Mr Frankland-Davies said that the wooden carving was “always meant to degrade and return to the earth, as we all do, and is natural”. The wood, he said, would “age beautifully for about 20 years. . . Not a long time in the scheme of things,” and he would then “replace the monument with something fitting for myself and our children”.

The Black-Kay family declined Mr Frankland-Davies’s offer to ask the carver of the monument to carve a toy of the families’ choice on to the rear of the treble clef where it protruded, and for that to overlook Dominic’s stone and grave.

The Vicar General said that the right to be buried in a churchyard did not include a right to erect a memorial to the deceased. A memorial placed in a churchyard without permission granted by, or on behalf of, the Diocesan Chancellor constituted a trespass.

The family did not own the land in which the remains were interred. The rights and interests of private individuals, the congregation, parishioners, the Church, and society at large had to be considered in permitting a memorial, which was likely to last for ever, to be placed in a churchyard.

It had also to be remembered that the wording on a memorial would be read not just by those who knew the deceased, but also by those who did not. In many ways, the message conveyed to those who did not know the deceased was more important than the message conveyed to those who did know him or her, the Vicar General said.

In his judgment, the Vicar General said, the memorial was “oversized and far too large”, and did “over-dominate the churchyard in a way which is undesirable”.

The oak of which it was constructed had a substantial number of vertical cracks, and was unlikely, as Mr Frankland-Davies said, to “age beautifully” and last for 20 years. It would have to be replaced in a relatively short period, and it was not appropriate, the Vicar General said, “for a memorial to be erected on the basis that it will have a relatively short life, and should then be replaced by another memorial”.

As to the “eccentric shape” of the memorial, the Vicar General said that, while he did not say that another memorial constructed in different materials in the shape of a treble clef could never be permitted if such a situation were to arise, an application for a faculty would have to be determined on the particular facts of that case. But, in the present case, the Vicar General was satisfied this “eccentric shape” carved out of a piece of wood was not appropriate.

The carvings, and the inscription “This too shall pass” had a meaning well understood by the deceased’s family, but their significance would not be understood by anyone else.

The memorial was therefore inappropriate, and created a substantial departure from the Churchyard Regulations. In those circumstances, a confirmatory faculty to allow it to remain in the churchyard was refused, and it was ordered that the memorial be removed from the churchyard within 28 days.

The judgment did not prevent approval for the erection on the deceased’s grave of a memorial which complied with the Regulations. The Vicar General indicated that he “would be content to approve an engraving on a memorial of natural stone of an appropriately sized treble clef to reflect the deceased’s musical interests.”

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