Shared Parenting Information Group (SPIG) UK

- promoting responsible shared parenting after separation and divorce -

The Persistent Father

Re S (Minors) [1992] 2 FLR 313

Those who remember the parable of the persistent widow and the unjust judge will be pleased to hear that the Court of Appeal was swayed by a persistent father. In a ruling which predated the Children Act, Butler-Sloss LJ held that it was undesirable to leave access in limbo, and ordered some active steps to promote it.

Enormous number of applications

The father - a litigant in person - had made an enormous number of applications for custody, access, religious upbringing, education and other matters, and at the hearing which gave rise to the appeal he had in fact asked for 13 separate orders.

Fervent Roman Catholic

The father was a fervent Roman Catholic, and although it was claimed that this had adversely affected his relationship with his children, it is not clear to what extent it influenced the court in deciding to help restart access.

Children not wanting to see him

The children, aged 13.5 and 11.5, had not seen their father for two years, since he was convicted of fraudulent trading and imprisoned. They had indicated very strongly that they did not wish to see him, while the mother had said that she had no objection to access but that she would not force the children - a familiar tale !


Butler-Sloss LJ agreed with the trial judge that there should be no order for immediate access, but she clearly had concerns about a future in which access was as she put it "in limbo".

The welfare officer's very firm conclusions that there should be no access were diluted by her failure to recognise that the children's letters clearly had all the hallmarks of help from a grown up.

Whilst respecting the wishes of the children, there was concern that being denied the valuable benefits of access might affect the rest of their lives - especially as there were reports of them having enjoyed being with their father in the past.

The solution adopted was to appoint the Official Solicitor to represent the children in the hope that he could get through to them with "delicacy, sensitivity and discretion". Matters were transferred to the High Court and the father ordered not to make any further applications for six months.

Not much to go on perhaps, but better than the accusations of being vindictive, vexatious and conducting a vendetta which are made of many of our members as they struggle to stay in contact with their children.

Butler-Sloss LJ :

Extracts from her judgment

"Ought not something to be done, active rather than passive, to promote future access ?

"The general principle is that the relationship between children and the non-custodial parent is beneficial to the children. That is a principle which should not be lost sight of.

"Both of the children at 13 and 11 years of age, have several years of minority left in which they have the possibility of valuable future contact with their father.

"The father is unrepresented. He is unable on his own to exert a moderate influence and to open a window to future contact...

"Access has been left in limbo.

"Human nature being what it is, the mother's side of the family, for understandable reasons .... are not likely to encourage a resumption of access.

"I believe it is worth making some attempt to build on a past relationship that may not have, and ought not to have, totally failed.

"It is premature to shut the door and do nothing, and to leave access in limbo is tantamount to shutting the door.

"How best to deal with this very delicate situation of these two children, not yet quite mature enough to make their own decisions, but of an age to have a sensible and responsible approach to life ?

"How best to make them think again on terribly important matters that will affect the rest of their lives ?

"Can they be invited to realise the good they have and could continue to have with their father and not just the bad; to see that for them they would gain a great deal by renewed contact with their father ...

"If they do not see him in the future they will lose a great deal.

"It may be the difficulties are too great, but it is worth a try and it needs everybody to have goodwill and self-control.

"Nobody should dictate to children of this age because one is dealing with their emotions, their lives and they are not packages to be moved around. They are people entitled to be treated with respect.

"These children, it seems to me, are entitled to this help.

David Cannon

Originally published 1992

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