Shared Parenting Information Group (SPIG) UK

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Re H (Minors) (Access) - the case for restarting contact

In the past the courts have held that restarting contact after a lapse of three years was likely to upset children. However a landmark decision by Lord Justice Balcombe in the case of re H on 4 July 1991 at the Court of Appeal, has overturned this ruling and raised fresh hopes for parents who have been separated from their children for long periods. In particular it was ruled that a child who had no memory at all of her natural father should be introduced afresh to him.

The correct test

It was ruled that the correct test to apply when considering either a cessation or resumption of contact is not to ask what benefits might accrue from contact, but rather to ask:

"Are there any cogent reasons why the children should be denied the opportunity of contact with their natural father ?" This ruling overturns decisions by Judges Young and Heald at Nottingham County Court.

Other points

The case revolved around the judgments of:

M v M (Child:Access) [1973] 2 All ER 81: - a precedent which, like this one, is well worth studying.
Balcombe LJ endorsed "as fully as I can" remarks made by Latey J and made a number of significant pronouncements of his own. The main points were:

contact is the right of a child
contact is of immense value to a child
contact often results in upsets to children
these upsets are usually minor and superficial
the upsets are heavily outweighed by the long-term advantage to the child of staying in touch with the parent concerned
contact prevents parents and children becoming strangers
obstruction of contact may cause a child to resent and turn against the parent seen to be responsible
denial of contact deprives a child of an important contribution to his emotional and material development
denial of contact may cause the deprived parent to lose interest in the child

Judge Heald had held that M v M did not apply to cases of restarting access, but only to questions of whether access should cease. Balcombe LJ said that this was wrong; by the time matters come to court, access has frequently ceased because of the uni lateral decision of the parent with whom the child lived. Thus in most cases the issue was essentially about restarting access. Heald's chief mistake was to repeatedly ask what the children would gain from access, rather than why they should be denied the benefits of contact. It had been claimed that there was no question of the mother denying the father access, and that the children had a right to know their father "when they are ready" - a familiar story. Lord Justice Balcombe rejected this, saying:

"That is tantamount to putting off access indefinitely, because if these children never have the opportunity to get to know their father after a gap of three years, it is unlikely that they will eventually want to until, possibly, they reach their late teens, and that may be far too late".

Based on Family Law Report:: Re H (Minors)(Access) [1992] 1 FLR 148

David Cannon

Originally published - 1992

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