Clergy Discipline Measure: a harsh discipline?

by
18 October 2018

Twelve years after it came into force, there are fears that the CDM is doing lasting harm. Madeleine Davies reports

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IT WAS the Archbishop of Canterbury who raised question of the Clergy Discipline Measure (CDM) when the General Synod was debating clergy well-being last year.

“My own experience in dealing with people who may have gone wrong over the last few years on the CDM process has often contributed very badly indeed to their well-being,” Archbishop Welby said. “The process has been a punishment, not the outcome” (News, 14 July 2017).

It is an observation that resonates with the Warden of the Sheldon Community, Dr Sarah Horsman. In both one-to-one encounters with people coming to the community’s centre near Exeter, and online through the Sheldon Hub, she is increasingly aware of clergy and their families who are struggling to cope with the effects of the process, sometimes years after its conclusion.

Sheldon has set up a CDM project in response, which seeks to improve support for respondents and case-handling, and ultimately make recommendations to repair or replace the Measure.

“Anxiety, depression, hyper-vigilance, fatigue, exhaustion: all of those sorts of things are very common around it,” she says. “We are seeing people faced with costs of defending themselves that they just can’t find money for; so running up debts is a problem.” At its most extreme, there are cases where ultimately people have taken their own lives.

A recent request for testimonies allowed a voice to those caught up in the CDM process: “I cannot tell you how grateful I am that there is at last likely to be some independent research being seriously undertaken as to the processes, the procedures, the mess, the horror, and the outcomes for the lives of those who go through it,” said one priest.

“Despite the fact I was wholly exonerated, and the complainant dismissed as untruthful, it was, in effect, the end of my ministry,” another said.

A third priest said: “It was clearly vexatious, and all the complaints raised were struck down, but the process was draining and time-consuming. A complainant loses nothing by making a complaint. . . Even when the complaint is dismissed, the clergy person has been put through unwarranted stress.”

And a fourth: “Dealing with the civil courts was a humane breeze compared with the nightmare which followed with the C of E.”

While the numbers affected are “relatively small”, and Dr Horsman is conscious of the need for academic research (something that Sheldon is in the process of commissioning), her fear is that “people are being needlessly lost to ministry. . . There are people who have been cleared, or find they have no case to answer; but the process itself has damaged them to such an extent that they either have long-term problems or leave the ministry. It shouldn’t be happening.”

 

LAST year, 108 complaints were made under the CDM. Penalties for misconduct were imposed in 27 of the 108. Twelve years ago, when it was introduced, there were 71 complaints, rising only slightly to 73 in 2015.

Back in 2006, it was heralded as providing a new structure for dealing with formal complaints of misconduct. It replaced a system widely deemed to be broken. It explicitly excludes matters involving doctrine, ritual, or ceremonial.

Of the former system, a Church Times leader comment in 1996 said: “A disciplinary system which has been used only three times since 1963 is clearly not doing its job.” The paper noted “the small number of scandalous priests who remain in post because they are too expensive to remove”.

The Ecclesiastical Jurisdiction Measure 1963 was “complex, elaborate, expensive, and slow”, Adrian Iles, the Archbishops’ Council’s designated officer under the Clergy Discipline Measure, explained in a 2007 paper for the Ecclesiastical Law Society. As a lawyer, he has the task of carrying out investigations on behalf of diocesan bishops; he also puts the complainant’s case at tribunal.

There was a perception, he noted, that proceedings were being avoided by the resignations of accused priests. “This could be inappropriate and unfair, either because resignation was too lenient a sanction for serious matters, or because it was too harsh in less serious cases.”

Cases could also be very expensive for the Church. One of the catalysts for legislative change was the case of a priest accused of an extra-marital affair, which prompted two appeals and generated costs of almost £350,000.

Other problems identified included the difficulty of finding people to hear court cases who did not know the accused or the case. Hearings were public, creating “much adverse publicity”, Mr Iles noted; and treating the proceedings as criminal was “seen as being unhelpful and unnecessary”.

 

THE CDM put the bishop in a central position — prompting one priest to ask “Are they to wear the mitre or the wig?” (News, 17 July 2009) — and created a bishop’s disciplinary tribunal, designed to be more in line with other professions, to hear cases. Timescales were laid out to avoid delay.

Today, clergy who are subject to a complaint receive notice of it in writing. A typical letter, available on a diocesan website, notes that a formal complaint “can be stressful for all parties concerned”. While offering some reassurance — “Experience shows that many complaints are without substance, but, whatever happens, the Bishop will ensure that throughout the process you are not on your own and that you will receive appropriate pastoral care and support” — it notes that respondents are “strongly recommended” to seek legal advice. Ecclesiastical Legal Aid can be sought.

In Sheldon’s experience, the ideal of fully informed and pastorally supported clergy is often unmet.

“Time and time again, we are hearing about people not being provided with basic information or a basic timetable,” Dr Horsman reports. “For any clergy person going through discipline, potentially their home, income, and status as clergy is on the line. Those are very fundamental things that generate a stress response within any human being. Even if you know you have done nothing wrong, you will be aware that miscarriages of justice can occur.”

Isolation is another risk factor, given the emphasis on confidentiality. Sheldon is seeking to “provide better mutual support and better access to information”, chiefly through its forum, which now includes a dedicated sub-group for people who have themselves been through the process.

Its second aim is to use information gathered about people’s experience to draft guidance on how to administer the process better.

“We think there is stuff we could be doing within the existing framework so that the people responsible for handling the system can do it in a less harmful way,” Dr Horsman suggests, “though we suspect that the Measure itself needs either repair or replacing.” A third aim is to begin a national conversation about change: she believes that a significant number of archdeacons and bishops share her concerns.

 

AMONG those willing to voice them is the Archdeacon of Rochdale, the Ven. Cherry Vann, who is also Prolocutor in Convocation for the clergy of the York Province.

“It’s a very distressing process for clergy to have to go through. [Especially,] if the case is dismissed they are left with no opportunity to tell their side of the story, which leaves them feeling angry and let down — left with all the aggro and no way even of talking it through,” she suggests.

“The CDM may be the right tool for serious cases of misconduct — theft, fraud, marital infidelity, etc. But, as you will have picked up, a lot of people want to use it for minor purposes: when they don’t agree with — or like — what the vicar is doing; when a priest has made a genuine mistake or error of judgement, etc. Rather than agreeing to mediation or an opportunity to talk things through — which I have offered on a couple of occasions — they want to go straight to the top.”

Archdeacon Vann disagrees that it is simply a matter of administering the existing Measure better. “We need another route for complainants to go down in instances where the complaint is not about serious misconduct — perhaps a requirement to go through a mediation/reconciliation process, and/or clearer guidelines or examples showing cases when a CDM is an appropriate route to go down — and when it isn’t.”

One priest who spoke to the Church Times was subject to a complaint made by an archdeacon, shortly after they had had a private pastoral conversation. The priest recalls: “His immediate thought seems to have been punishment and discipline and process rather than pastoral care. It was a bit like standing on the edge of a cliff.”

The priest was put in touch with a suffragan bishop as a source of pastoral support, who was “very good and very supportive and very robust in his advice”. Yet he sensed the “slight absurdity that we then had one very senior member of diocesan clergy advising me against his colleagues”.

Today, he feels strongly that he was not given an opportunity to tell his side of the story to the bishop, and has come to the conclusion that “The CDM is far too narrow to deal with hugely complicated situations like mine. . . All you can do is answer the accusation. I was in the absurd situation of having other people telling me what I had done.”

Among his suggestions is that the complainant’s motive should be examined at the scrutiny stage. He is also concerned about a lack of rules about admissible evidence, a lack of case law to draw on and establish precedents, and the “ill-defined” phrase “unbecoming conduct”.

During the case, he came to feel betrayed by his bishop, whom he had known for a long time. But he admits that the bishop “seems to have been in an impossible position, in which he could no longer talk to me outside the formal role imposed on him by the CDM. I would very much have liked to talk to him one-to-one about all that was going on with me.

“My close colleagues also distanced themselves from me, and made it clear that their working relationship with me was over, long before the process had run its course.”

His mental health was badly affected by the case, he says: “I soon realised I was losing sleep and was being emotionally and mentally drained by worrying about what might happen. My GP referred me for therapy, and I was diagnosed with clinical anxiety (generalised anxiety disorder), for which I received treatment.” He praises his GP, who has offered regular appointments and therapy and the support of friends.

He now has trouble with housing: with no references or income, it is proving difficult to secure another tenancy. Having only ever served in ministry, he finds himself having to start a new career from scratch: “Although I believe I have got wide and highly transferrable skills, it is proving difficult to persuade potential employers to prefer me over applicants who are already in the field.”

He is currently relying on Jobseeker’s Allowance and savings, and struggles to heat his property. He points out that, although he received legal aid to pay for advice from an ecclesiastical lawyer, it was made clear that this would not cover a tribunal: a deterrent to pursuing this option, particularly given that he “did not really have stomach for this”.

 

A RETIRED archdeacon who spoke to the Church Times agrees that change is needed. The case of a priest he supported pastorally took two years to conclude, from the complaint to the tribunal at which it was dismissed.

“It seemed very, very unkind, even unjust, because there was no evidence to suggest that he should be stopped from doing any of his parochial ministry. He was not curtailed in any way from working, day by day, but there was this cloud hanging over him that he could not talk to anyone about. . .

“The big thing was the uncertainty and the constant feeling that all that he had worked for over so many years was just going to be thrown down the drain. He was not really supported in the way that he should have been, apart from the pastoral care that I offered. . . I think he is going to bear the emotional and spiritual scars for quite a long time.”

He suggests that, from the earliest days of the Measure, “an awful lot of both archdeacons and bishops felt it was unworkable as a piece of legislation,” and he believes that, at tribunal stage, “It is a very adversarial process, really more akin to secular courts than a church tribunal.”

The Dean of Chester, the Very Revd Dr Timothy Stratford, who was the Archdeacon of Leicester from 2012 to 2018, believes that the earliest stages of a complaint — described as “stage one” in the Code of Practice that accompanies the Measure, before disciplinary proceedings — are a “creative place” where an informal approach can be taken, and the respondent has the opportunity to “take charge”. It is “disappointing”, he suggests, that the Code of Practice does not offer more guidance on this.

This year, Church of England Clergy Advocates, part of the faith workers’ branch of the Unite union, produced guidance on the early stages of the CDM process, in consultation with the archdeacons’ forum, noting that archdeacons “may be unaware of the range of options that may be open to them when a complaint comes to their attention”. The “informal approach” is “under-used” it says, “and this can undermine clergy morale and create an adversarial and litigious culture.”

The guidance includes a list of options for complaints that do not require immediate progress to formal disciplinary proceedings, including mediation, training, counselling, and “words of friendly advice”. It also advises that referral to the police or a diocesan safeguarding adviser may be the correct response to a concern.

When complaints are not resolved informally, preliminary scrutiny is undertaken by the diocesan registrar. This is not a fact-checking process, but one that seeks to establish whether, were the complaint true, it would meet the threshold for the CDM, which, the Code emphasises, is “not for the determination of grievances”. It can be a frustrating period for clerics, who may not at this stage be asked to provide their version of events.

While the Code sets out clear timelines for the process, delays can occur. If the Designated Officer is called upon to investigate a complex case, three months may be needed to do this properly, and, at tribunal stage, it can take time to find a judge, given that the judges are doing this in their spare time, in addition to their day job. A police investigation — which must be carried out before the CDM process in cases referred to them — can also add to the delay.

 

ONE aspect of the process raised in a consultation by the Clergy Discipline Commission shortly after the Measure came into force was that the diocesan bishop was expected to act as judge as well as pastor (News 17 July 2009).

While the Code makes it clear that the diocesan bishop is “the chief pastor of all within that diocese”, who has “the duty of pastoral care for both complainant and respondent, as well as the parish”, it emphasises that he or she “should not personally give pastoral care to anyone connected with the disciplinary proceedings. . . otherwise there is a risk that the bishop’s impartiality could appear as a result to be compromised.” The diocesan bishop is not, however, “cut off” from either party, or unable to meet either of them.

This is a difficult issue to resolve, Dr Stratford suggests: “If the bishop is the right person to hear the complaint then it is absolutely appropriate that they are kept out of it whilst there is an investigation going on.”

A retired bishop who spoke to the Church Times prized face-to-face contact when it came to dealing with the three CDM complaints that came his way as a diocesan, meeting both the complainant and respondent in person at the beginning of the process. He also prioritised the appointment of three people to offer pastoral support: to the complainant and respondent, but also to the affected parish.

The respondent would be offered legal support from a registrar in the neighbouring diocese. In all three cases, the respondent accepted the penalty that he offered. Looking back, he believes that, although this approach was “heavy in pastoral terms, it absolutely paid off. . . I think all felt properly cared for and confident in the process.”

As a retired bishop, he has provided pastoral support to priests going through the process, and has been struck by the fact that their first knowledge of the complaint arrived through the letterbox: “there was a feeling of shock without a human face to respond to.” He has also had to encourage a priest to go back to the diocese to ask for legal support.

In general, he believes that there has been “very considerable abuse of practice” in using the CDM. This is fundamentally a theological issue, he argues: “The fundamental question is always ‘Where is God in this?’ And I’m afraid there is no theology underpinning the nature or the operation of the CDM. In good theology, you cannot divorce discipline from discipling. We should have an aim to move every person involved . . . closer to the child of God they were created to be.

“Every single part of the process should be about the cure of souls. We seem to have lost sight of that.”

Sam AtkinsArchdeacon Hawker speaks in the General Synod in July 2009 during a debate about amending the Clergy Discipline Measure, in which discussion focused particularly on the part played by the bishop in the process

 

WHEN the Measure was introduced, one of the supporting arguments was that it would offer greater protection to the laity. Archdeacon Alan Hawker, who chaired the working group that produced the report Under Authority, which gave rise to the CDM, argued that, for years, lay people had suffered for “lack of disciplinary action against an erring priest”. The CDM would “send out a message that there were standards to which the clergy were expected to conform”.

This week, a Church of England spokesperson said that the CDM was a process for dealing with “serious misconduct committed by the small number of clergy who fall below the high standards required and expected of them”.

While 108 complaints among 19,500 members of the clergy in ministry is a small percentage, the findings of tribunals, published on the Church of England website, are a reminder that serious wrongdoing does occur.

A common response to criticisms is that priests need to be accountable for their actions, and that those who wish to change the system must articulate what might replace what is currently on offer.

The Church’s history of safeguarding failures is evidence, Dr Stratford argues, that “some things should not be dealt with informally and some things should not be dealt with internally.” Although he is aware of complaints generated maliciously, he reports that “in my experience, it’s not what is happening most of the time.”

CDM processes are “quite rare”, he observes: he saw five or six in his six years as an archdeacon. “And I think that should reassure clergy that the use of the CDM is not routine by any means.”

To date, no more than four cases have reached a tribunal in any one year. Most of the penalties imposed against clerics are imposed by a bishop with the cleric’s consent. Research carried out this year by a member of the Clergy Discipline Commission, securing responses from 18 dioceses, found that the average time from the laying of a complaint to the bishop’s making a decision was less than three months.

 

MOST of the cases that have reached tribunal stage have concerned inappropriate relationships.

Katharine Harrison, a committee member of Broken Rites, identifies reasons that people do not initiate the CDM process: “The clergy stick together; the parish has them on a pedestal or doesn’t want to rock the boat, and spouse and family have too much to lose, and may not be in a state to function.”

She speaks of a “long, slow process” that “drags out the agony of divorce and complicates the process”, but also argues that the urgency — because of the time limit on bringing complaints — can “pressurise a deserted spouse. . . How should we prioritise this whilst dealing with needing housing, children in meltdown, getting checked for an STI, and mental stress?”

Spouses “end up having to drive the process, and we have other things to devote our energies to”, she says. She is critical of “minimal” outcomes. “Remarriage to the ‘other woman’, often blessed in church, contrary to the Bishops’ Guidelines, is shockingly common.” The most important point, she suggests, is: “What messages is all this giving to our children?”

One woman whose ex-husband was removed from office and suspended for one year after admitting that he had had an “improper relationship” with another woman, to whom he had pretended that he was unmarried, says that, although she had uncovered the affair, the complaint was handled “as if I did not exist”.

“I was not asked any questions. . . Nobody sat down to ask me: ‘What were you going through? What was happening in your life?’ . . . My expectation was that the investigating person would contact me.”

It was only by attending the tribunal that she learned the outcome of the case, when she learned some “shocking” details of which she was unaware.

Her situation today is “appalling”, she says. She was off work for six months, struggling with anxiety and depression. After being asked to move out of the vicarage, she was homeless for seven months, while the bishop and archdeacon insisted that she and her husband were “still together”.

She is hoping that she may be able to secure help with a loan from the diocese “to get stability for me and my child”. The Church may not have a legal obligation to help, she says, “but they do have a moral obligation.”

She wishes that the system would “involve the spouse, because when all this comes out, the end result does affect the spouse in a very bad way”.

 

THE CDM is constantly under review. Amended in 2015 to improve the response to safeguarding concerns (News, 17 July 2015), it has been repeatedly criticised by survivors of abuse as an inadequate means of redress. Jo Kind has described it as “utterly retraumatising and at most times disempowering” (15 July 2016); and Canon Rupert Bursell QC, a former diocesan chancellor, has also expressed concerns.

“It is too cumbersome,” he told the Independent Inquiry into Child Sex Abuse this year (News, 16 March). “I have come to the conclusion that individual bishops should not have participation in the machinery. They never did so before the coming into the effect of the 2003 Measure, and I can’t see why it is necessary that they should now.”

In March, the Archbishop of Canterbury suggested that it was not fit for the purpose of handling safeguarding complaints: “The damage it does to survivors and those against whom a complaint is made is extraordinary” (News, 21 March).

“Our discipline system has to reconcile a number of different interests: not just the interests of the clergy, but also those of all members of the Church and the general public,” a Church of England spokesperson said this week.

“While the CDM has struck broadly the right balance, and enabled complaints to be dealt with both transparently and fairly, the Clergy Discipline Commission [CDC], which is charged with keeping the system under review, is also aware of the pastoral challenges associated with the process. The CDC is already actively engaged in looking at the issue of delays, and whether improvements are needed to make the system more effective in safeguarding cases.”

The Bishop of Leeds, the Rt Revd Nick Baines, a member of the Commission, says that it is “very alert to some of the unintended consequences of CDM, and to the pastoral challenges involved”. Many of those who come to Sheldon, having been subject to a complaint, have been referred there by the church authorities for pastoral care.

Going forward, Dr Horsman would like to hear from as many people as possible who have experienced being a CDM respondent, or from anyone with relevant research and legal expertise who could contribute.

”The shame and secrecy surrounding CDM means that many people are anxious about coming forward, even years later,” she says. “I hope this project can be a catalyst for change at many levels of the CDM process, and inspire hope that proper accountability can be structured in a truly humane way.”

 

Matthew’s story

 

MATTHEW (not his real name) first learned that a complaint had been made under the CDM when he was accidentally sent a copy of a letter intended for the complainant’s witnesses. It came out of the blue, and he did not receive official confirmation for eight months, during which no pastoral support was offered. He was accused of bullying and intimidating people within the Church.

It was a picture very different from that painted by witnesses who contributed to his response, and eventually the Bishop’s office ruled that it was “maliciously motivated”. The complaint was dismissed, and full confidence was placed in him by the Bishop. But he describes the experience as the worst of his life, and now believes that the CDM is “broken”.

While the complainant took almost a year to prepare a case, Matthew had, according to the regulations, 21 days to respond. He could not seek advice from his solicitor until he had received legal aid. By the time it had been awarded, he had just 13 days left.

Although the regulations state that the Bishop should respond within 28 days, Matthew waited more than four months for the outcome. Although the Code says that, where there is delay, a letter specifying a timescale should be sent, none arrived.

The waiting was “incredibly stressful”, he says. “It’s a bit like waiting for a train: so much easier if you know how long you are going to have to wait.”

He relied on a counsellor and friends whom he could “cry over the phone to”. His counselling is ongoing; he has received £300 from the diocese towards the £4000 he has already spent.

The archdeacon helped the complainant to put together the case, and Matthew believes that he “clearly thought I was guilty”. During the process, the archdeacon offered him a year’s stipend to encourage him to resign: a message that he interpreted as the archdeacon’s believing that he was “such a bad priest that it would be better for me not to be employed by the Church.

“This felt like being stabbed in the chest, after being ordained for decades. I felt like this had all been wasted, and that I had been deluding myself to think that I was at least a ‘good-enough’ priest.”

He describes these months as “the worst experience of my life. I felt alone and depressed. As the archdeacon thought I was guilty, it was hard not to doubt myself. I was worried that it would be hard to prove my innocence, and, if I didn’t, I feared that it would be incredibly difficult to get another job within the Church with such a black mark against my name: who would want a known bully as their vicar? What could I do instead?

“Having done the maths, I worked out that I could just about survive, stacking shelves in a supermarket, if I spent no money on holidays, eating out, or going to the cinema or theatre. This future seemed unbelievably bleak.”

Matthew had to spend £1350 on solicitors’ fees, and struggles to accept “that I should be so significantly out of pocket, given the accusation against me was malicious”. He is also concerned that, in applying for new jobs, the requirement to state that he has been subject to an investigation leaves him at a disadvantage: “I do not understand why I should have to declare it, since the outcome was No Further Action, the complaint was malicious, and the bishop has declared his full confidence in me.”

He also feels that, during the run-up to the CDM, he was repeatedly denied an opportunity to tell his side of the story to the archdeacon. “Something you learn is that, if one child comes to you and gives you a terrible sob story, you always try to hear the other side of the case. But he was not doing that.

“I reasoned that, if those within the diocese felt this was a fair way to treat one of their priests, then I could not count on a just outcome.”

The complainant and some of their witnesses are still part of Matthew’s congregation, and he has evidence that “negative rumours are still being spread about me.

“I am aware that about half of our congregation know of the CDM. I think mud sticks: the Church of England has such a poor record in dealing with aberrant clergy that I think it is reasonable for people to wonder whether the outcome was correct.”

Despite the bishop’s ruling, the archdeacon did not take the initiative to talk to him about the conclusion of the case. Matthew now feels that he cannot trust him to deal fairly with any further problems he might have in the parish. “I feel that, not only did the diocese not support me in this incredibly difficult time, but they were actively helping my accusers undermine my ministry. The diocese badly let me down.”

 

How the former Ecclesiastical Jurisdiction Measure worked

1. Complaint laid before diocesan registrar, either by complainant authorised by bishop or six people on electoral roll of parish

2. Diocesan bishop provides complainant and accused with private interview

3. Bishop could either take no further steps or refer complaint for inquiry by examiner

4. Parties required to produce evidence in support of their cases

5. Examiner could dismiss case or rule in favour of further action, in which case accused put on trial before a consistory court

6. Consistory Court presided over by chancellor of the diocese acting as judge, with four assessors (two lay, two ordained) as jury (trial based on procedures of the Crown Court).

7. If accused found guilty, chancellor imposed a “censure”, which could include removal from any preferment and disqualification from holding any other preferment.

 

How the Clergy Discipline Measure works

1. Complaint sent in writing to bishop.

2. Preliminary scrutiny by diocesan registrar.

3. Within four weeks, bishop decides whether to dismiss or recognise as disciplinary matter.

4. Respondent submits written answer.

5. Bishop can rule no further action/conditional deferment/conciliation/penalty with consent/formal investigation. Penalty can be imposed with only respondent’s consent and where respondent admits validity of complaint, in part or in full. Bishop may accept respondent’s resignation.

6. If a formal investigation, the designated officer produces report for president of tribunals, who decides if case to answer.

7. If yes, tribunal to adjudicate, sitting in the local diocese. Five members from outside the diocese, with a legally qualified chair, two members of the clergy, and two communicant lay members. Normally held in private.

 

Grounds under which misconduct can be alleged:

1. Acting in breach of ecclesiastical law.

2. Failing to have due regard to safeguarding guidance.

3. Failing to do something which should have been done under ecclesiastical law.

4. Neglecting to perform or being inefficient in performing the duties of office.

5. Engaging in conduct that is unbecoming or inappropriate to the office and work of a cleric.

 

Aims of Sheldon’s CDM project

To collaborate with all interested parties to:

  1. ensure that clergy know where to get information and support as soon as a complaint is made against them and throughout the process;
  2. develop guidance to help those handling CDM cases to minimise the stress on respondents;
  3. commission independent academic research to quantify and understand the long term emotional, financial, vocational and relational impacts of CDM (whatever the determination of the case); and
  4. make recommendations for repair or replacement of the Measure itself.

Work on the project is taking place largely in the online space of the Sheldon Hub. Join at www.sheldonhub.org/cdm (or email hub@sheldon.uk.com).

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